Last Updated: March 28, 2023: Updated 1. Acceptance of the Terms and 23. Arbitration
The Terms are entered into by and between you (referred to herein as “you” and/or, if you have subscribed to Smith.ai, as “Subscriber”) and Smith.ai, Inc. (“Smith.ai,” “we,” “our,” or “us”), and they govern your access to and use of the Smith.ai website and/or Smith.ai software (collectively the “Platform”) and Smith.ai Services, as defined below, whether as a guest or subscriber.
This agreement remains in full force and effect while you use the Platform. All provisions of the Terms shall survive termination by either party, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
The Platform and Services are intended only for access and use by individuals at least eighteen (18) years old. If you are not at least eighteen (18) years old, you are prohibited from both the access and usage of the Platform and Services.
We may revise and update these Terms from time to time at our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Platform and Services thereafter. Your continued use of the Platform or our Services following the posting of revised Terms means you accept and agree to the changes.
a. Virtual Receptionist Services
Smith.ai provides virtual receptionist services to its subscribers, including receptionist telephone answering; filtering marketing, spam, or other unwanted calls; caller greetings; inbound messages; voicemail services; text to mobile devices; message notifications through text and/or email; outbound calls for appointment booking and confirmation and caller feedback, outbound calls for customer engagement and/or sales; and other services that may be introduced from time to time. Collectively, the services described in this paragraph and all others provided by Smith.ai now or in the future, whether through a web portal, SMS, email, mobile application, or other interfaces, are called the “Services” in these Terms.
All plans are subject to, and limited by, Smith.ai’s Reasonable Use Policy.
b. Outreach Services
Smith.ai provides outreach services to its subscribers, including outbound calls for customer engagement and/or sales, outbound calls for appointment booking and confirmation and caller feedback, email and SMS follow-up messages, and other outreach services that may be introduced from time to time. Collectively the services described in this paragraph are called the “Outreach Services” in these Terms.
c. Chat Services
See Chat Terms of Service.
Smith.ai offers “Receptionist Service Plans” and rates on a month-to-month subscription basis, the details of which can be found at https://smith.ai/receptionists/pricing. We are not liable or responsible for the content of third-party websites, webpages, or resources, including erroneous or out-of-date pricing.
You may at any time elect to change your Receptionist Service Plan by contacting Smith.ai at email@example.com. Changes will take effect on the next monthly payment date. Overage charges, if any, will apply until the new Receptionist Service Plan takes effect.
For purposes of the Receptionist Service Plans:
“Available Hours” means the hours during which Smith.ai will provide specific Services to you, as outlined further in your selected Receptionist Service Plan.
“Receptionist Calls” means: 1) incoming calls that are made by third parties or forwarded by you to the telephone number assigned to you by Smith.ai (“Subscriber Identifier”) and that you identify as desired calls, such as calls from potential clients/customers, family members, etc., and 2) outbound calls made by Smith.ai at your request. Inbound calls made by telemarketers, misdialed numbers, promotional companies, or callers not wanting to leave a message are not counted as Receptionist Calls. Blocking valid Receptionist Calls is considered abuse of the system and is subject to reversal and account cancellation. Learn more.
“Live Transfer Phone Number” means the phone number(s) that we will transfer callers to, per your instruction, if they meet your specified criteria.
“Per month” refers to the calendar month.
If you utilize Smith.ai outbound calling, you must comply with and are responsible for complying with all applicable laws, rules, and regulations, including without limitation the Telephone Consumer Protection Act (47 U.S.C. § 227), the Telemarketing Sales Rule (16 C.F.R. 310 et. seq.), and all other marketing, telemarketing, and telecommunication rules issued by the Federal Communications Commission and/or the Federal Trade Commission. Outbound calling services must comply with Smith.ai’s Restricted Engagement Policy and must not be used for cold calling, spam, fraud, or third-party sales. Subscriber must immediately notify Smith.ai of any violation of these rules. Smith.ai is not responsible for the content of any outbound call, and Subscriber agrees to indemnify, defend and hold harmless Smith.ai against any third-party claim, demand, lawsuit, regulatory action, or other liability brought against Smith.ai arising from or relating to Subscriber’s outbound calling.
Smith.ai reserves the right to block, restrict or terminate services at any time, with or without notice.
Your Receptionist Service Plan begins on the date of your first payment for your selected Services Plan (“Receptionist Subscription Date”). By subscribing to the Services, you agree to pay all fees for your selected Receptionist Service Plan, plus any overage charges incurred. All payments are non-refundable.
The monthly rate is charged on the Receptionist Subscription Date and will be automatically charged each month on the anniversary date of your Receptionist Subscription Date using the payment method provided at the time of subscription until you terminate your subscription. In other words, if you sign up on April 10, you will be automatically charged the monthly rate for your chosen Receptionist Service Plan on the 10th day of each month thereafter until your subscription is canceled.
In the event that you exceed the number of Receptionist Calls during a calendar month of the Services, you will be charged overage charges as described on https://smith.ai/receptionists/pricing. Overage charges will be charged on the last business day of each month or, if your Receptionist Service Plan is terminated, are required to be paid within 10 days of the termination date of your Receptionist Service Plan. You authorize Smith.ai to charge your payment method on file for any overage charges incurred.
Smith.ai reserves the right to terminate your subscription immediately and stop providing the Services to you at any time if timely payment is not made. If an automatic payment cannot be made, Smith.ai will request another payment method. If payment is not made within five (5) business days, we will stop providing all Services to you, but, as a convenience to you, we may redirect your calls to your Live Transfer Phone Number. If payment is not made within ten (10) business days, Smith.ai will terminate your account. Smith.ai reserves the right to collect any and all amounts then due, plus any Late Charges accrued as described below.
You may change your Receptionist Service Plan at any time by notifying Smith.ai at firstname.lastname@example.org or +1 (650) 709-2975. The plan change must be made at least one week prior to the end of the current subscription cycle. If the Subscriber changes the Receptionist Service Plan within one week of the end of the cycle, the current Receptionist Service Plan will continue the following month and change at the next subscription cycle. For example, if the Receptionist Service Plan subscription is set to renew Friday, change it by the previous Friday to prevent an additional month at the current plan.
Smith.ai offers Outreach Service on a one-time model or monthly recurring subscription plan, the details of which can be found at https://smith.ai/outreach-campaigns/pricing. We are not liable or responsible for the content of third-party websites, webpages, or resources, including erroneous or out-of-date pricing.
For purposes of the Outreach Service Plans:
“Available Hours” means the hours during which Smith.ai will provide specific Outreach Services to you, as outlined further in your selected Outreach Service Plan.
“Outreach Calls” mean outbound calls made by Smith.ai on your request as part of an Outreach Service Plan. Unless otherwise written in the quote, all Outreach Service Plans include a maximum of 5 Outreach Calls per Contact.
“Contacts” mean the unique phone numbers Smith.ai is calling during Outreach Campaigns.
“Live Transfer Phone Number” means the phone number(s) that we will transfer callers to, per your instruction, if they meet your specified criteria.
“Per month” refers to the calendar month.
“One-Time” refers to a single pre-purchased Outreach Campaign Service as outlined in the quote.
If you utilize Smith.ai Outreach Campaigns, you must comply with and are responsible for complying with all applicable laws, rules, and regulations, including without limitation the Telephone Consumer Protection Act (47 U.S.C. § 227), the Telemarketing Sales Rule (16 C.F.R. 310 et. seq.), and all other marketing, telemarketing, and telecommunication rules issued by the Federal Communications Commission and/or the Federal Trade Commission. Outbound calling services must comply with Smith.ai’s Restricted Engagement Policy and must not be used for spam, fraud, or third-party sales. Subscriber must immediately notify Smith.ai of any violation of these rules. Smith.ai is not responsible for the content of any outbound call, and Subscriber agrees to indemnify, defend and hold harmless Smith.ai against any third-party claim, demand, lawsuit, regulatory action, or other liability brought against Smith.ai arising from or relating to Subscriber’s outbound calling. Smith.ai reserves the right to block, restrict or terminate services at any time, with or without notice.
Your Outreach Service Plan begins on the date of your first payment for your selected Services Plan (“Outreach Subscription Date”). By subscribing to the Outreach Services, you agree to pay all fees for your selected Outreach Service Plan, plus any overage charges incurred. All payments are non-refundable.
Outreach Service Plans require a 3-month minimum commitment and setup fee paid upfront on the Subscription Date. After the third month, the monthly rate will be automatically charged each month on the anniversary date of your Outreach Subscription Date using the payment method provided at the time of subscription until you terminate your subscription. In other words, if you sign up on April 10, you will be automatically charged the monthly rate for your chosen Outreach Service Plan on the 10th day of each month, beginning on the first day of the fourth month after your Subscription Date and continuing thereafter until your subscription is canceled.
In the event that you exceed the number of Contacts during a calendar month of the Outreach Services, you will be charged overage charges per contact. Overage charges will be charged on the last business day of each month or, if your Outreach Service Plan is terminated, are required to be paid within 10 days of the termination date of your Outreach Service Plan. You authorize Smith.ai to charge the payment method on file for any overage charges incurred.
Smith.ai reserves the right to terminate your subscription immediately and stop providing the Outreach Services to you at any time if timely payment is not made. If an automatic payment cannot be made, Smith.ai will request another payment method. If payment is not made within five (5) business days, we will stop providing all Outreach Services to you. If payment is not made within ten (10) business days, Smith.ai will terminate your account. Smith.ai reserves the right to collect any and all amounts then due, plus any Late Charges accrued as described below.
Subscriber may change the Outreach Service Plan at any time by notifying Smith.ai at email@example.com or +1 (650) 709-2975. The Plan change must be made at least one week prior to the end of the current subscription cycle. If the Subscriber changes the Outreach Service Plan within one week of the end of the cycle, the current Outreach Service Plan will continue the following month and change at the next subscription cycle. For example, if the Outreach Service Plan subscription is set to renew Friday, change it by the previous Friday to prevent an additional month at the current plan.
Subscribers may opt to purchase Outreach Services on a non-recurring model by making a one-time, non-refundable payment for Smith.ai to place outbound calls to a set number of contacts during a predetermined time-frame as outlined in the Outreach Services Quote. Outreach Services purchased on a one-time plan must be paid in full before work will begin. All payments are non-refundable.
Smith.ai fees do not include any applicable use tax, sales tax, value added tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Smith.ai and Subscriber (each a “Tax”); all of which shall be paid by Subscriber in addition to the price quoted or invoiced. Any Tax that Smith.ai may be required to collect or pay upon the sale or delivery of Services, Outreach Services, or any other product or service shall be paid by Subscriber to Smith.ai unless Subscriber has provided Smith.ai, at the time of the first payment for such products or services, an exemption certificate or other document valid in the jurisdiction imposing the Tax.
Any payments not received within ten (10) days of when due as described in these Terms are subject to a monthly “Late Charge” of $10 or 10% of the amount then due (whichever is greater), subject to any restrictions imposed by local law. In the event Smith.ai does not receive full payment within ten (10) days after the applicable due date, the Subscriber will be considered in material default of this Agreement (“Material Default”). After such Material Default, Smith.ai shall maintain the right to collect any and all amounts then due, the Subscriber shall pay all legal fees and collection costs incurred by Smith.ai, and the Subscriber shall pay all late fees that may accrue thereafter.
From time to time, Subscriber may be presented with discounts, offers, credits, and other promotions (collectively, “Discounts”) that reduce the cost of Services. A Discount can be used only once per Subscriber. Unless explicitly stated otherwise in the terms of the Discount (e.g., a seasonal promotion), Discounts are for new (first-time) Subscribers only and may not be combined. In the event of multiple applicable Discounts, the Subscriber may choose which one to apply. Discounts may have expiration dates and are no longer valid past the date of expiration.
In addition, Discounts may be offered in conjunction with affiliates and other entities (collectively, "Distributors"). Smith.ai reserves the right to revoke a Discount at any time for improper usage, including but not limited to: (i) applying a Discount for or from a Distributor when the Subscriber is not associated with, or a customer of, that Distributor; (ii) applying a Discount intended for another Subscriber, or (iii) distributing to others a Discount intended for single use.
Smith.ai offers a Money-Back Guarantee to first-time subscribers of our virtual receptionist services. We guarantee a refund of up to $1,000 for a period of 14 days following the first payment date (the Receptionist Subscription Date). The Money-Back Guarantee offer is subject to the following terms:
Money-Back Guarantee is not available to prior Subscribers.
Money-Back Guarantee is not available on Outreach Service Plans.
Subscriber must notify Smith.ai in writing via email to firstname.lastname@example.org of a Money-Back request within 14 days from Subscriber’s Subscription Date. Only requests submitted by i.) the known account holder(s) or ii.) the Smith.ai reseller (defacto account holder(s)) of the subscription may request exercising the Money-Back Guarantee on a subscription.
The Money-Back refund shall not exceed the first subscription payment.
Any overage charges incurred for calls beyond the service plan quota will be deducted from the Money-Back refund at the corresponding overage rate.
The Money-Back Guarantee is limited to a maximum refund of $1,000 of the first subscription payment.
Smith.ai may cancel service plans during the 14-day period and refund Subscriber subject to Money-Back Guarantee terms for circumstances described in section 11(b).
The Money-Back Guarantee covers the first subscription payment, less any discounts applied prior to payment, as discounts applied through promo codes or other means may neither be converted back to cash nor credit for use on a future subscription.
Smith offers a Referral Program as a benefit to Subscribers. In exchange for the direct and traceable referral of a new prospective Subscriber to Smith (an individual or business who has neither previously been a Subscriber nor currently is in negotiations, trial, or guarantee period prior to becoming a Subscriber) who becomes an actively paying Subscriber stemming from such referral, the Subscriber will receive a benefit of a $25/month discount on their subsequent bills insofar as the Subscriber’s account is in good standing with a balance greater than zero, to which a discount can be applied. This recurring $25/month discount will continue to be applied to the referring Subscriber, as long as the referred and referring Subscribers remain actively paying Subscribers in good standing with a balance greater than zero on their respective accounts.
Discounts may not be applied to a partner account, defined as an account that (directly or indirectly) manages, white-labels, wholesales, or resells Smith.ai products and/or services under the Smith.ai brand name or any other individual or business entity, notwithstanding reseller and referral partners who are Subscribers themselves and have forgone in writing their partner-specific reseller/referral benefits in favor of $25/month discounts.
Discounts are not transferable, may not be converted to cash, do not accrue an unused balance that carries over to subsequent months (“use it or lose it” within the current month’s billing cycle), and cease upon termination of a Subscriber account without possibility of reinstatement. Discounts may be placed on hold if a Subscriber places a temporary hold on their account, at the sole discretion of Smith. Discounts are accrued only once per new unique, actively paying Subscriber, and not per-service or per-product.
A Subscriber may not refer themselves, nor may they refer a new location, employee, or owned entity of the same business as a Subscriber. We reserve the right to investigate any suspicious or inappropriate activity relating to the Referral Program. Notwithstanding any provision of these terms, we are not be obligated to provide any discount to a referring Subscriber, whose referral results in a new actively paying Subscriber, if we determine, in our sole discretion, that the referred Subscriber is not a bona fide new Subscriber, including, without limitation, if referred or referring Subscriber engaged in any fraudulent or deceitful behavior in connection with the Referral Program, including, without limitation, if a referred or referring Subscriber, directly or indirectly, offered any person a financial or other incentive to become an actively paying Subscriber, used a referral link, code or other mechanism to redirect traffic from, or divert discounts from, any other Subscriber in the Referral Program. We reserve the right, in our sole discretion, to delay payment of any discounts while we investigate Subscribers’ participation in the Referral Program or any use of referral links, codes and other mechanisms.
We reserve the right to cancel the Referral Program without prior notice in its entirety or for a specific referring Subscriber at any time for any reason. All questions and disputes regarding Subscribers’ eligibility for, and credits disbursed as part of, the Referral Program will be resolved by Smith in its sole discretion.
Subscribers are automatically entered into the Referral Program upon becoming a Subscriber. Subscribers do agree to be bound by these terms. If you do not agree to all of the terms and conditions, you may not participate in the Referral Program. We may revise these terms from time to time in our sole discretion, subject to applicable law. When we revise these terms, we will post the revised version on the website. You are free to decide whether or not to accept a revised version of these terms, but accepting these terms, as revised, is required for you to continue participating in the Referral Program. If you do not agree to these terms or any revised version of these terms, your sole recourse is to terminate your participation in the Referral Program in writing to email@example.com. Except as otherwise expressly stated by us, your participation in the Referral Program is subject to, and constitutes your acceptance of, the version of these terms in effect at the time of your participation in the Referral Program.
Should the Subscriber desire to promote Smith products and services to their clients, peers, friends, family, and other individuals and businesses, in promoting Smith, the Subscriber agrees that they shall not use or permit any person or entity to use Smith’s trademarks, service marks, product marks, and any other branded graphics or logos (collectively, the “Marks”) without prior written consent of Smith. All requests to use Smith Marks must be directed to firstname.lastname@example.org.
No promotional activity by Subscribers aimed at generating prospective Subscribers of Smith shall create any association, joint venture, partnership, or agency relationship of any kind between Smith and its Subscribers. Subscribers are not authorized to act, or incur any liability, obligation, or expense, on behalf of Smith. Further, Subscribers may not represent that they are in the business of providing, selling, soliciting, or effecting the products and/or services provided by Smith.
Presently, the Smith Referral Program is carried out through Referral Rock, and Smith, as with all other third-party applications we use in the course of carrying out business for our Subscribers, makes every reasonable effort to ensure the systems connecting Referral Rock and Smith are sound, secure, and functional in accordance with the standards and terms set forth in the full Terms of Service.
When you subscribe to the Services, our trained staff will work with you to determine how we can provide the most effective receptionist services to you by learning what types of calls you generally receive and how you would like each call handled. For each type of call, such as a potential client or solicitation, you decide what information we collect from the caller, if any, and how we will convey any desired information to you.
All information collected by Smith while providing the Services to you, including information received during Receptionist Calls, or provided for your subscription (“Subscriber Information”), is kept strictly confidential and is only shared with Smith’s staff that needs the information to provide the Services to you and your authorized staff.
All Subscriber Information is jointly owned by Smith and you. Smith retains this joint ownership solely so that it has the right to store the information collected on its secure servers and use it to provide excellent Services to you, such as relaying messages to you through text and email, identifying spam callers and solicitations, and improving our Services. Smith will use Subscriber Information for the sole purpose of providing the Services pursuant to the instructions that you provide, and under no circumstances will Smith sell Subscriber Information or share it in any manner not specified in these Terms.
If we are required to share Subscriber Information by law, we will notify you promptly upon receiving such a request. We will work with you to keep the Subscriber Information confidential if possible, but we will honor any applicable legal obligations regarding sharing the Subscriber Information.
Smith stores your Subscriber Information in a segregated account that only contains your Subscriber Information. Each Subscriber can only access and use the information in its own Smith account. This allows us to only allow Smith staff working on your account to access your Subscriber Information.
We will respond to your written request to delete Subscriber Information within 3 business days. Deleting Subscriber Information may require deletion of your Smith.ai account and take up to 30 days to execute. After confirming that you understand that deletion of your Smith.ai account will be permanent, we will delete the requested information and rescind all ownership rights to the Subscriber Information that was deleted.
In addition to not sharing, selling, or using Subscriber Information in any manner not described in these Terms and expressly agreed by you, we adhere to the following confidentiality protections:
Our staff are trained to follow the confidentiality measures described in these Terms and must sign a Non-Disclosure Agreement requiring them to keep all Subscriber Information confidential prior to starting to work with any Subscriber Information.
We perform regular malware scanning of the Platform and all servers and computers used by us to support the Platform.
Subscriber Information is encrypted through the Platform with Secure Socket Layer technology (SSL) and is also encrypted when it is stored by us to prevent unauthorized parties from viewing such information.
Our staff will not ask any caller for information that is not specifically requested by you.
For our attorney clients, we understand and respect your obligations regarding attorney-client confidentiality, including under Rule 5.3 of the Model Rules of Professional Conduct, and uphold a commitment to confidentiality. Our staff’s conduct is compatible with your professional obligations.
Smith.ai shall report to Subscriber, with all relevant details, any event that Smith.ai reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). Smith.ai shall make such report within 48 hours after learning of the Security Breach.
In the event of a Security Breach, Smith.ai shall (a) cooperate with Subscriber to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Subscriber in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Subscriber in any litigation or investigation against third parties that Subscriber undertakes to protect the security and integrity of Content; and (d) mitigate any harmful effect of the Security Breach.
While we employ the practices described in these Terms to provide the Services, we also follow your instructions regarding how we can best provide the Services to you. Therefore, please ensure that any instructions provided to Smith regarding your account comply with your obligations and confidentiality expectations. We are not responsible for breaches of confidentiality that may occur when we are following your instructions, such as transmitting information to an unsecure server specified by you or the acts or omissions of your authorized staff members. Our goal is to be a valued member of your business, so we may contact you if we believe that a process could be improved, but our role in your business is limited to the Services that you order.
In its provision of the Services, Smith will transcribe messages from calls that you receive. However, Smith does not monitor or censor such messages for content and is not responsible, or have any liability whatsoever, for the content of Subscriber Information or messages that are received by, on the behalf of, or intended for the Subscriber.
Subscriber may cancel the Services at any time by notifying Smith at email@example.com or +1 (650) 727-6484. Services will continue until the end of the current subscription month. Smith does not provide a refund for early cancellation of Services for any reason. Cancellation must be made at least one week prior the end of the current subscription cycle. If the Subscriber cancels within one week of the end of the cycle, they will be billed for the following month. For example, if the subscription is set to renew Friday, cancel by the previous Friday to prevent being billed for the following month.
Smith may cancel the Services in the following circumstances:
If Smith has any reason whatsoever to believe that the Services are being used to contravene any law, the Services shall be immediately cancelled. Any such cancellation shall be at the sole discretion of Smith and without refund or liability to Subscriber.
If Subscriber does not pay for the Services by the required due date, Smith may cancel or suspend the Services immediately.
If Subscriber violates these Terms in any manner, Smith may cancel or suspend the Services and will provide notice to Subscriber of the violation.
Smith reserves the right to cancel the Services for any or no reason.
In the event that the Services are canceled or otherwise terminated, the Subscriber Identifier assigned to Subscriber may be immediately cancelled for use by Subscriber. At Smith’s sole discretion, the Subscriber may be given the option to: i) keep the Subscriber Identifier as a useable phone line for $10/month, or ii) Smith may choose to forward incoming calls made to the Subscriber Identifier to Subscriber for 10 days.
Upon cancellation or termination of the Services, Smith shall not be responsible or liable for the receipt or delivery of any messages intended for Subscriber through the Services or Subscriber Identifier.
By signing up for the annual plan, you agree to a 6-month, one year, or two year commitment, prepaid and non-refundable. The annual discount is offered for that commitment to our services for trusting us long term with your business.
You may stop using your receptionist service at any time. However, we do not refund or prorate unused portions of a subscription. This means that if you stop forwarding your calls or close your account, you will retain access until the end of your subscription and can reactivate any time.
Subscriber is prohibited from any of the following when using the Platform or subscribing to the Services:
Transmitting or causing to transmit any material that is derogatory, racist, abusive, threatening, obscene, hateful, or in any other way objectionable to others or illegal;
Using the Services to “spam” or cause mischief to others;
Using the Services in any way that causes, or may cause, damage to or impairment of the availability or accessibility of the Services, or in any way which is unlawful, illegal, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity;
Reproducing, distributing, modifying, creating derivative works of, republishing, downloading, storing, or transmitting any of the material on the Platform, except as it is created and owned by Subscriber;
Using any device, software, or routine that interferes with the proper working of the Platform or Services;
Attempting to aggregate, solicit, or otherwise recruit Smith.ai employees or contractors away from Smith.ai;
Introducing any viruses, trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful; or
Otherwise attempt to interfere with the proper working of the Platform or Services.
Smith represents and warrants that it has the right to use, and is the sole owner of all right, title, and interest in and to, all intellectual property rights relating to: i) the voice-over IP and website technology platform underlying the Services (the “Application”), and ii) the Services, including all copyrights and all trademarks, service marks, and trade names associated with Smith and the Services. Smith represents and warrants that it has a license or rights to use any third party components embedded in the Application. Smith does not grant you any intellectual property rights in the Application or Services, and all rights not expressly granted in these Terms are reserved by Smith.
The Platform and Services are controlled and operated from the United States and subject to its laws. If you choose to access the Platform or Services outside of the United States, you do so at your own risk and are responsible for complying with all applicable laws, rules, and regulations.
You agree to indemnify Smith and its directors, officers, employees, agents, successors, assigns, and affiliates from and against all third party claims, judgments, costs, liabilities, damages or expenses, including reasonable attorneys’ fees and costs, arising out of, resulting in any way from, or made by: i) a breach of any provision, representation, or warranty set forth in these Terms; ii) callers using Subscriber’s Subscriber Identifier as a result of actions of or failure to act by Subscriber; and iii) any content provided by Subscriber for its Online Profile or the Services.
Smith will indemnify Subscriber and its directors, officers, employees, agents, successors, assigns, and affiliates from and against all third party claims, judgments, costs, liabilities, damages, or expenses, including reasonable attorneys’ fees and costs, arising out of or resulting in any way from i) Smith’s breach of any provision, representation, or warranty set forth in these Terms; ii) claims made by callers due to the gross negligence or intentional misconduct of Smith; or iii) any claim asserted by a third-party that the Services or Application infringes any of such third party’s patents or other intellectual property rights. The foregoing obligations in subparagraph (iii) do not apply with respect to content provided by Subscriber for its Online Profile.
Subscriber agrees and acknowledges that Smith shall not be liable for any claims of any kind or nature whatsoever (including claims for negligence) that might arise directly or indirectly out of any act or omission, use, or misuse of any Services by Subscriber or for any delays, mistakes, or errors in conveying Subscriber Information to Subscriber by Smith. To the extent this provision fails to fully and completely exclude any claim and/or to the extent any third party might make any claim against Smith in any way related to Subscriber’s use or misuse of Services or anything done or any delays, mistakes, or errors in conveying Subscriber Information to Subscriber by Smith, then Subscriber indemnifies Smith against any and all liabilities losses expenses and costs that might be suffered or incurred by Smith as a direct or indirect consequence of any such claims being made.
THE APPLICATION AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ACCURACY OF CONTENT. SMITH MAKES NO WARRANTY OR REPRESENTATION THAT SUBSCRIBER’S USE OF THE APPLICATION OR SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR-FREE.
WITHOUT LIMITING THE FOREGOING, NEITHER SMITH NOR ANYONE ASSOCIATED WITH SMITH REPRESENTS OR WARRANTS THAT THE PLATFORM, ITS CONTENT, OR THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE PLATFORM OR THE SERVER THAT MAKES IT OR THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PLATFORM OR THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
EXCEPT AS OTHERWISE EXPRESSLY STATED, IN NO EVENT WILL SMITH BE LIABLE TO SUBSCRIBER OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, REGARDLESS OF THE BASIS OR NATURE OF THE CLAIM OR LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, RESULTING FROM THE SERVICES, ANY USE OF THE APPLICATION, OR ANYTHING PERTAINING TO THE TERMS, INCLUDING WITHOUT LIMITATION ANY LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF SUCH PARTY HAS EXPRESSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY FOR ANY AND ALL OF SUBSCRIBER’S CLAIMS AGAINST SMITH UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ARISING OUT OF OR RELATED TO SERVICES OR APPLICATION EXCEED THE AMOUNTS ACTUALLY PAID BY SUBSCRIBER TO SMITH DURING THE 12 MONTHS PRIOR TO THE DATE A CLAIM IS MADE.
Smith may assign, transfer, or sub-contract Smith’s rights and/or obligations under these Terms without notifying you or obtaining your consent. You may not assign, transfer, or sub-contract your rights and/or obligations under these Terms without Smith’s prior written consent.
At Smith’s sole discretion, it may require you to submit any disputes arising from the use of these Terms of Service, the Platform, or the Services, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying California law.
No waiver by Smith of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Smith to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
All feedback, comments, requests for technical support, and other communications relating to the Platform or Services should be directed to: firstname.lastname@example.org.