Terms of Service

(Effective January 1, 2017)

1. INTRODUCTION AND ACCEPTANCE
Welcome to www.smashmytrash.com. Smash My Trash LLC (“”, “we”, “us” and “our”) offers you access to its interactive online websites, applications and services. These Terms of Service, together with our Privacy Policy and any additional terms which might apply to certain products or services, govern your use of our websites (“Website”) and any mobile or other applications that we may offer now or in the future (“Applications”). The Website and Applications, plus SMT’s waste-management solution described herein, together constitute our “Services.” Our Services include www.smashmytrash.com and all other physical and electronic resources on which we place these Terms of Service.
PLEASE READ THESE TERMS OF — USE CAREFULLY BEFORE USING THE SERVICES. BY ACCESSING AND/OR USING THE SERVICES (OTHER THAN TO READ THESE TERMS OF — USE FOR THE FIRST TIME) YOU ARE AGREEING TO COMPLY WITH THESE TERMS OF — USE, WHICH MAY CHANGE FROM TIME TO TIME AS SET FORTH IN THE “AMENDMENT; ADDITIONAL TERMS” SECTION BELOW. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF — USE, DO NOT ACCESS OR — USE THE SERVICES.
2. INTELLECTUAL PROPERTY
The Services and included content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, and interactive features (collectively, the “Services Content”) and all intellectual property rights to the same are owned by us, our licensors, or both. Additionally, all trademarks, service marks, trade names and trade dress that may appear on the Services are owned by us, our licensors, or both. Except for the limited use rights granted to you in these Terms of Service, you shall not acquire any right, title or interest in the Services or any Services Content. Any rights not expressly granted in these Terms of Service are expressly reserved.
3. SERVICES AND REGISTRATION
(A) SMT provides a commercial industrial waste-management solution and equipment distribution service designed to reduce waste by pulverizing and compacting such waste in Your waste receptacles. SMT provides such Services for a fee and on an appointment basis, whereby SMT performs the Services on-site at Your location(s). Equipment may also be distributed to your facility via a sales relationship, including financing services.

(B) SMT provides Discretionary Services to some users. Those who elect this service do so with the full knowledge and understanding that SMT personnel will act on your behalf when deciding the appropriate time to provide Services. Users waive all legal avenues otherwise not stated herein to dispute the expertise and professionalism of SMT personnel and our decision to discretionarily provide services on Users’ behalf.

(C) Under no circumstances will SMT or its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, or their related companies be liable for any damage, repairs, or costs to any trash dumpster, bin, container or similar receptacle (collectively, “Dumpsters”) of any kind owned by You or any third party and used with the Services. You agree and acknowledge that you are solely responsible for the safekeeping of any Dumpsters used in connection with the Services. You agree to assume all risks in connection with Dumpsters, regardless of fault, including, without limitation, risk of use, risk of loss, risk of theft, risk of damage or destruction. You further agree to indemnify and hold harmless SMT and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliate, subsidiaries, and their related companies for any third-party claims, losses, or damages related to any Dumpsters or the Services, and as further set forth in Section 7 (“Indemnification”). The above representations and limitations of liability are in addition to Sections 8 and 9, as set forth below.
(D) Registration.
(i) IN ORDER TO ACCESS OR — USE SOME FEATURES OF OUR SERVICES, YOU HAVE TO BECOME A REGISTERED — USER. IF YOU ARE UNDER THE AGE OF EIGHTEEN (18), THEN YOU ARE NOT PERMITTED TO REGISTER AS A — USER, OR OTHERWISE TO PROVIDE US ANY PERSONAL INFORMATION.
(ii) If you become a registered user, you will provide true, accurate and complete registration information and, if such information changes, you will promptly update the relevant registration information. During registration, you will create a user name and password (a “Membership”), which may permit you access to certain areas of the Services not available to non-registered users. You are responsible for safeguarding and maintaining the confidentiality of your Membership. You are solely responsible for the activity that occurs under or using authentication credentials from your Membership, whether or not you have authorized the activity. You agree to Contact Us immediately of any breach of security or unauthorized use of your Membership.

(E) SMT frequently provides low-cost or no-cost demonstrations to prospective customers at the User’s facility, SMT’s facility, or a third party’s facility. These Users consent to these Terms of Service through the act of accepting and/or inviting SMT to provide a demonstration of Services. (B) Under no circumstances will SMT or its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, or their related companies be liable for any damage, repairs, or costs to any trash dumpster, bin, container or similar receptacle (collectively, “Dumpsters”) of any kind owned by You or any third party and used with the Services. You agree and acknowledge that you are solely responsible for the safekeeping of any Dumpsters used in connection with the Services. You agree to assume all risks in connection with Dumpsters, regardless of fault, including, without limitation, risk of use, risk of loss, risk of theft, risk of damage or destruction. You further agree to indemnify and hold harmless SMT and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliate, subsidiaries, and their related companies for any third-party claims, losses, or damages related to any Dumpsters or the Services, and as further set forth in Section 7 (“Indemnification”). The above representations and limitations of liability are in addition to Sections 8 and 9, as set forth below.

4. ACCESS AND — USE
(A) In all instances, our Services are not being sold to you; rather, you are being granted a limited and revocable license to use our Services.
(B) Some of our Services require that you have internet or data network access. You are responsible for obtaining all such access, along with the computers, mobile devices and other equipment necessary to use the Services. For instance, for our Applications, you will need a mobile device that is compatible with our Application and wireless data access – data and messaging rates from your mobile carrier may apply to such uses. We do not guarantee that the Services, or any portion, will function on any particular equipment or device. We do not guarantee the availability of the Services, or any portion, at any particular time or location.
(C) You acknowledge that SMT reserves the right to discontinue the Services, in whole or in part, at any time. When using our Services, you agree to comply with all applicable federal, state, and local laws including, without limitation, copyright law. Except as expressly permitted in these Terms of Use or as we may otherwise permit, you may not use, reproduce, duplicate, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit Service Content for any purpose whatsoever without obtaining prior written consent from us or, in the case third-party content, its applicable owner. In certain instances, we may suggest, ask or otherwise permit you to access, download, install or print Service Content. In such a case, you may do so only in the manner authorized. You acknowledge that you do not acquire any ownership rights by accessing, downloading, installing or printing Service Content.
(D) In certain instances, we may provide you access to our Services for business purposes, such as scheduling the Services for others (e.g., your guests or customers) under a contract between SMT and your employer (“Business Use”). In these instances, you agree to: (i) use our Services solely for the Business Use; (ii) to keep strictly confidential all User Content (including any user’s Account information) and other SMT user/customer information accessed through the use of the Services, as well as any technical, financial, strategic and other proprietary and confidential information relating to our business or operations that you may access or that we may directly or indirectly provide (“Confidential Information”); (iii) not share any Confidential Information with anyone except to those employed by your employer, but only where the sharing of the Confidential Information is necessary to further the Business Purpose; and (iv) not share your Account access information with any other user, including other employees of your employer.
(E) Furthermore, except as expressly permitted in these Terms of Use, you may not:
(i) remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice we include in or through our Services or Service Content;
(ii) circumvent, disable or otherwise interfere with our security-related features including, without limitation, any features that prevent or restrict the use of or copying of any software or other Service Content;
(iii) use an automatic device (such as a robot or spider) or manual process to copy or “scrape” the Website or Service Content for any purpose without our express written permission. Notwithstanding the foregoing, SMT grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, consistently with automated guidance and notices (e.g., robots.txt files). SMT reserves the right to modify or revoke these exceptions either generally or in specific cases;
(iv) collect or harvest any personally identifiable information or non-personally identifiable information from our Services including, without limitation, user names, passwords, or email addresses;
(v) solicit other users to join or become subscribers or members of any commercial online service or other organization without our prior written approval;
(vi) attempt to or interfere with the proper working of our Services or impair, overburden, or disable the same;
(vii) decompile, reverse engineer, or disassemble any portion of our software or other Service Content, or any portion of our Services;
(viii) use network-monitoring software to determine architecture of or extract usage data or other information from our Services;
(ix) encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity (e.g., using another person’s Membership);
(x) violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce;
(xi) engage in any conduct that restricts or inhibits any other user from using or enjoying our Services.
(F) You agree to fully cooperate with us to investigate any suspected or actual activity that is in breach of these Terms of Use.
(G) You understand and agree that your use of the Services and/or Service Content while operating a motor vehicle (or during any other activity that requires your attention) may be distracting, dangerous, or prohibited by law. You are solely responsible for your exercising good judgment, acting in a safe and responsible manner, and obeying all laws and regulations at all times. You understand that failing to pay full attention in the operation of a vehicle or in other activities may cause an accident, damage, injury, death, or other serious consequences. You assume sole responsibility for your use of the Services and Service Content.
5. — USER CONTENT
(A) We may now or in the future permit users to post, upload, transmit through, or otherwise make available on the Services (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”). Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content. We do not guarantee any confidentiality with respect to User Content even if it is not published on the Services. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.
(B) You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.
(C) You represent, warrant, and covenant that you will not submit any User Content that:
(i) violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity;
(ii) impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise objectionable;
(iii) encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;
(iv) is an advertisement for goods or services or a solicitation of funds;
(v) includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references;
(vi) contains a formula, instruction, or advice that could cause harm or injury; or
(vii) is a chain letter of any kind.
Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying the Services will not be permitted.
(D) By submitting User Content to us, simultaneously with such posting you automatically grant, or warrant that the owner has expressly granted, to us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable, and transferable right and license to use, reproduce, distribute, create derivative works (including, without limitation, translations) based upon, publicly display, publicly perform, transmit, and publish the User Content (in whole or in part) as we, in our sole discretion, deem appropriate including, without limitation, (1) in connection with our business; and (2) in connection with the businesses of our successors, parents, subsidiaries, and their related companies. We may exercise this grant in any format, media or technology now known or later developed for the full term of any copyright and other rights that may exist in such User Content. Furthermore, you also grant other users permission to access your User Content and to use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, transmit, and publish your User Content for their own use as technically permitted by the functionality of the Services and as legally permitted by these Terms of Service. Notwithstanding the foregoing, you waive any and all claims you may now or later have in any jurisdiction to so-called “moral rights” or rights of “droit moral” with respect to the User Content.
(E) By submitting User Content, you also grant us the right, but not the obligation to use your biographical information including, without limitation, your name, image and geographical location in connection with broadcast, print, online, or other use or publication of your User Content.
(F) We reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising and promotional purposes. You acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution partners and third-party service providers (including their downstream users).
(G)We reserve the right to take photographs and or videos of our work while on your premises. These media are limited to the extent of our work. You hereby consent to allowing us the use of this media for promotional purposes, so long as the media does not include private, confidential, or otherwise harmful information to your premises, personnel, or trade.
(H)We reserve the right to include testimonials of our services in promotional materials. You hereby authorize the use of these testimonials at the time they are given.
(I)We have the right, but not the obligation, to monitor User Content. We have the right in our sole discretion and for any reason whatsoever to edit, refuse to post, remove, or disable access to any User Content.

6. SERVICES CONTENT & THIRD PARTY LINKS
(A) You may not rely on any information and opinions expressed on any of our Services for any purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of Services Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any Services Content.
(B) In many instances, Services Content will include content posted by a third-party or will represent the opinions and judgments of a third-party. We do not endorse or warrant, and we are not responsible for, the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on the Services by anyone other than our authorized employees or spokespersons while acting in their official capacities.
(C) If there is a dispute or conflict between persons accessing the Services or between persons accessing the Services and any third party, you understand and agree that we are under no obligation to become involved. If there is such a dispute or conflict, you hereby release SMT, its officers, directors, employees, parents, partners, successors, agents, affiliates, subsidiaries, and their related companies from claims, demands, and damages of every kind or nature arising out of, relating to, or in any way connected with such dispute or conflict.
(D) The Services may contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links. We are not responsible for any content posted on third-party websites, nor are we liable to you or any other party for any loss or damage of any sort incurred as a result of your dealings with any third party or their website.
7. INDEMNIFICATION
You agree to indemnify and hold harmless SMT and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys’ fees and costs) arising out of, related to, or that may arise in connection with: (i) your access to or use of the Services including, without limitation, any damage caused to a trash dumpster, bin, container or similar receptacle (“Dumpster”) in connection with your request for and our provision of the Services; (ii) User Content provided by you or through use of your Account; (iii) any actual or alleged violation or breach by you of these Terms of Service; (iv) any actual or alleged breach of any representation, warranty, or covenant that you have made to us; or (v) your acts or omissions. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder.
8. DISCLAIMERS
YOU EXPRESSLY AGREE THAT — USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND SERVICES CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, SMT AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE PEFORMED WITHOUT DAMAGE TO THE APPLICABLE DUMPSTER(S); (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, — USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE SERVICES OR SERVICES CONTENT; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OUR SERVICES OR ACCESSED THROUGH THE SERVICES; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE — USE OF THE SERVICES; (6) WARRANTIES THAT YOUR — USE OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED; AND (7) WARRANTIES THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED.
9. LIMITATION ON LIABILITY
(A) UNDER NO CIRCUMSTANCES SHALL SMT OR ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, OR THEIR RELATED COMPANIES BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF SMT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THESE TERMS OF — USE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES, INCLUDING WITHOUT LIMITATION THE SERVICES CONTENT, IS TO STOP USING THE SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH ANY OF THE SERVICES OR ANY LINKS ON THE SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH ANY OF THE SERVICES OR ANY LINKS ON THE SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY CONTENT POSTED BY A THIRD PARTY OR CONDUCT OF A THIRD PARTY ON THE SERVICES.
(B) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF SMT AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES EXCEED THE GREATER OF $100 AND THE TOTAL PAYMENTS RECEIVED FROM YOU BY SMT DURING THE PRECEDING TWELVE (12) MONTH PERIOD. FURTHERMORE, YOU AGREE THAT ANY CA– USE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH ANY OF THE SERVICES OR THESE TERMS OF — USE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CA– USE OF ACTION ACCRUES; OTHERWISE, SUCH CA– USE OF ACTION SHALL BE PERMANENTLY BARRED.
(C) In some jurisdictions limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.
10. TERMINATION
(A) We reserve the right in our sole discretion and at any time to terminate or suspend your Membership and/or block your access to the Services for any reason including, without limitation if you have failed to comply with the letter and spirit of these Terms of Service. You agree that SMT shall not be liable to you or any third party for any termination or suspension of your Membership or for blocking your access to the Services.
(B) Any suspension or termination shall not affect your obligations to us under these Terms of Service. The provisions of these Terms of Service which by their nature should survive the suspension or termination of your Membership or these Terms of Service shall survive including, but not limited to the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, dispute resolution, no class action, no trial by jury and all of the “MISCELLANEOUS” section.
11. COPYRIGHT POLICY
(A) We respect the intellectual property rights of others and expect users to do the same. In appropriate circumstances and at our sole discretion, we may terminate and/or disable the Membership of users suspected to be infringing the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, we may remove or disable access to material on any of our Website or hosted on our systems that may be infringing or the subject of infringing activity.
(B) In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent whom we have designated to receive notifications of claims of infringement (our “Designated Agent”). Our Designated Agent is available upon request.
(C) If you are a copyright owner (or authorized to act on behalf of the copyright owner) and believe that your work’s copyright has been infringed, please report your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.
12. CHOICE OF LAW; JURISDICTION AND VENUE
These Terms of Service shall be construed in accordance with the laws of the State of Texas without regard to its conflict of laws rules. Any legal proceedings against SMT that may arise out of, relate to, or be in any way connected with our Services or these Terms of Service shall be brought exclusively in the state and federal courts located in Houston, Texas, and you waive any jurisdictional, venue, or inconvenient forum objections to such courts.
13. DISPUTE RESOLUTION & MANDATORY ARBITRATION
(A) We each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information and the proposed resolution. You agree to contact us with disputes by contacting us at: 1-844-SMASH-00. We will contact you based on the contact information you have provided us or that we obtain by other means.
(B) If after 30 days the parties are unable to resolve any dispute raised under the previous provision, the dispute may be submitted to arbitration consistent with this section. The parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they choose to have any disputes resolved through arbitration.
(C) We each agree that any claim or dispute between us, and any claim by either of us against any agent, employee, successor, or assign of the other, including, to the full extent permitted by applicable law, third parties who are not signatories to this agreement, whether related to this agreement or otherwise, including past, present, and future claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, shall be resolved by binding arbitration administered by the JAMS under its rules and procedures in effect when the claim is filed. The rules and procedures and other information, including information on fees, may be obtained from JAMS’ website (www.jamsadr.com) or by calling JAMS at 949-224-1810.
(D) We are entering into this arbitration agreement in connection with a transaction involving interstate commerce. Accordingly, this arbitration agreement and any proceedings thereunder shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. Any award by the arbitrator(s) may be entered as a judgment in any court having jurisdiction.
(E) Exception to Arbitrate. Either of us may bring qualifying claims in small claims court. Further, pursuant to the “NO CLASS ACTION” section below, we each agree that any arbitration will be solely between you and SMT, not as part of a classwide claim (i.e., not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator holds that this restriction in section is unconscionable or unenforceable, then our agreement to arbitrate doesn’t apply, and the classwide dispute must be brought in court.
14. NO CLASS ACTIONS
TO THE EXTENT ALLOWED BY LAW, YOU AND WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS, THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
15. NO TRIAL BY JURY
TO THE EXTENT ALLOWED BY LAW, YOU AND WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
16. AMENDMENT; ADDITIONAL TERMS
(A) We reserve the right in our sole discretion and at any time and for any reason, to modify or discontinue any aspect or feature of the Services or to modify these Terms of Service, including pricing of our services or those of our contractors. In addition, we reserve the right to provide you with operating rules or additional terms that may govern your use of the Services generally, unique parts of the Services, or both (“Additional Terms”). Any Additional Terms that we may provide to you will be incorporated by reference into these Terms of Service. To the extent any Additional Terms conflict with these Terms of Service, the Additional Terms will control.
(B) Modifications to these Terms of Service or Additional Terms will be effective immediately upon notice, either by posting on the Website, notification by email or through any of our Applications. It is your responsibility to review the Terms of Service and the Services from time to time for any changes or Additional Terms. Your access and use of any the Services following any modification of these Terms of Service or the provision of Additional Terms will signify your assent to and acceptance of the same. If you object to any such modification to the Terms of Service or to any Additional Terms, immediately discontinue use of the Services and, if applicable, terminate your Membership. Utilizing our Services is a consent to these Terms of Service and Additional Terms.
17. MISCELLANEOUS
(A) No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
(B) Except where specifically stated otherwise (e.g., in the “DISPUTE RESOLUTION & MANDATORY ARBITRATION” section), if any part of these Terms of Service is unlawful or unenforceable for any reason, we both agree that only that part of the Terms of Service shall be stricken and that the remaining terms in the Terms of Service shall not be affected. So, for example, if a provision in these terms is found to be unenforceable, we agree an arbitrator (or, if permitted, a court) shall only strike that provision and that the remaining terms of these Terms of Service shall remain in force.
(C) These Terms of Service (including the Privacy Policy and any Additional Terms incorporated by reference) constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between us with respect to such subject matter.
(D) You may not assign these Terms of Service or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect. We may assign these Terms of Service or any rights hereunder without your consent and without notice.