Last Updated: September 26, 2016
THESE TERMS AND CONDITIONS (THE “TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND SMARTRG INC. (“SMARTRG”, “WE” OR “US”). THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE(S) LOCATED AT THE URL(S): WWW.MYSMARTRG.COM, WWW.MYSMARTRG.CA, AS WELL AS ALL ASSOCIATED SITES BY SMARTRG, ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE “SITE”). UNLESS OTHERWISE SPECIFICED, ALL REFERENCES TO “SITE” INCLUDE ACCESS TO THE MYSMARTRG TECHNOLOGY PLATFORM AND PORTAL, MATERIALS, SERVICES AVAILABLE THROUGH THIS SITE (THE “SERVICES”) AND ANY SOFTWARE THAT SMARTRG PROVIDES TO YOU THAT ALLOWS YOU TO ACCESS THE SITE AND SERVICES FROM A MOBILE DEVICE (“MOBILE APPLICATION”).
BY USING THIS SITE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES AVAILABLE THROUGH THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH SMARTRG. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
SmartRG may make changes to the content and Services offered on the Site at any time. SmartRG can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Site and by notifying you either through a banner on the Site or, depending on your account status, via email at SmartRG’s sole discretion. By using this Site after SmartRG has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site.
II. General Use
You represent and warrant that you are lawfully able to enter into contracts (or, if you are a minor, you have your parent’s permission to use the Site, and your parent has read and agrees to this Agreement on your behalf). If you are a parent or legal guardian of a minor, you hereby agree to bind the minor to these Terms and to fully indemnify and hold harmless SmartRG if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Site at any time or in any manner or submit any information to the SmartRG or the Site.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A BUSINESS ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY AND CAPACITY TO BIND SUCH BUSINESS ENTITY. IF YOU ARE NOT AUTHORIZED NOR DEEMED BY LAW TO HAVE SUCH AUTHORITY, YOU ASSUME SOLE PERSONAL LIABILITY FOR THE OBLIGATIONS SET OUT IN THESE TERMS.
IV. Using the Site and the Services on the Site
The Site grants customers (“Customers”) who want to access and use SmartRG’s portal and device manager services with access to the SmartRG Services – either via a web browser (“SmartRG Portal”) or via mobile devices (“SmartRG Mobile Application”).
If you are Visitor, You can simply view the Site and not use any Services on the Site. You need not register with SmartRG to simply visit and view the Site and the public information on the Site.
However, if you are a Customer, and/or in order to fully access certain password-restricted areas of the Site, and to use certain Services and Materials offered on and through the Site, you must register with SmartRG for an account (each an “Account”) and receive a password.
You are responsible for maintaining the confidentiality of your SmartRG Password, and you are responsible for all activities that occur using your Passwords. You agree not to share your Passwords, let others access or use your Passwords or do anything else that might jeopardize the security of your Passwords. You agree to notify SmartRG if any of your Passwords on this Site is lost, stolen, if you are aware of any unauthorized use of your Passwords on this Site or if you know of any other breach of security in relation to this Site.
All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date.
You also agree and understand that the provision and use of certain of SmartRG’s services are beyond the scope of this Agreement and that Customer must enter into a separate agreement for use of the full services. In case of conflicts, the terms of any executed (signed) agreement between SmartRG and Customer shall control over these Terms.
V. Proprietary Rights and Licenses
SmartRG provides content through the Site and through the Services that is property of, copyrighted by and/or trademarked work of SmartRG or SmartRG’s third-party licensors and suppliers or other users of the Site (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content.
You acknowledge that the Site, its entire contents, features and functionality (including but not limited to all the text, data, information, software, graphics, photographs, sounds, music, videos, interactive features and the like thereof), Materials, and the trademarks, tradenames, service marks, trade dress or logos contained therein (“Marks”), and any other proprietary rights related thereto or appearing on the Site, are owned by or licensed to SmartRG, its licensors or other providers of such material, and are protected by copyrights, trademarks, service marks, patent rights, trade secrets and/or other proprietary rights (“Intellectual Property”). As between You and Us, We reserve all right, title, and interest, not expressly granted in and to the Site. You may only use the Site (and the Intellectual Property) as expressly permitted in these Terms and for no other purpose.
The Site as a whole is copyrighted as a collective work, and Materials appearing on or accessible through the Site, are owned by or licensed to SmartRG and are likewise subject to copyright protection domestically and internationally. Materials on the Site are provided to you AS IS for personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of SmartRG or the respective owners. You agree to not engage in the use, copying, or distribution of any of the Materials other than expressly permitted herein, including any use, copying, or distribution of content submitted by third parties obtained through the Site for any commercial purposes. You must abide by all copyright notices, information, or restrictions contained in or attached to any Materials or Submissions.
Subject to the terms and conditions of these Terms, and your compliance with these Terms, SmartRG hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use this Site solely for your personal use. Except for the foregoing license, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner. You agree not to circumvent, disable or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of Materials or enforce limitations on use of the Site or the Materials therein. You agree to be liable for any damages resulting from any infringement of copyright, trademark, or other proprietary right, or any other harm resulting from your use of this Web site. All rights not expressly granted herein are reserved.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
All Marks not owned by SmartRG that appear on the Site are the property of their respective owners and are used by permission. Ownership of Marks and the goodwill associated therewith remains with Us or with those other entities.
Please refer to our “X. Unauthorized Activities and Acceptable Use Policy.” section below for more information pertaining use of the Site and SmartRG’s Acceptable Use Policy.
The Mobile Application and all other software that is provided to you through the Site and Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if You are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
VI. Mobile Applications
SmartRG makes available Mobile Applications to access the Site via a mobile device. To use the Mobile Application you must have a mobile device that is compatible with the mobile service. SmartRG does not warrant that the Mobile Application will be compatible with your mobile device. SmartRG hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that SmartRG may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and SmartRG and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
The following additional terms and conditions apply with respect to any Mobile Application that SmartRG provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
You acknowledge that these Terms are between you and SmartRG only, and not with Apple, Inc. (“Apple”).
Your use of SmartRG’s iOS App must comply with Apple’s then-current App Store Terms of Service.
SmartRG, and not Apple, are solely responsible for our iOS App and the Services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
You agree that SmartRG, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
You agree that SmartRG, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties. You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of SmartRG’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that SmartRG provides to you designed for use on an Android-powered mobile device (an “Android App”):
You acknowledge that these Terms are between you and SmartRG only, and not with Google, Inc. (“Google”).
Your use of SmartRG’s Android App must comply with Google’s then-current Android Market Terms of Service.
Google is only a provider of the Android Market where you obtained the Android App. SmartRG, and not Google, are solely responsible for SmartRG’s Android App and the Services and Content available thereon. Google has no obligation or liability to you with respect to SmartRG’s Android App or these Terms.
You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to SmartRG’s Android App.
In the event we charge for any services, you agree to pay all fees or charges to your account based on SmartRG’s fees, charges, and billing terms in effect at the time you contract such services or as otherwise communicated directly by us. If you do not pay on time or if SmartRG cannot charge your credit card, or other payment method for any reason, SmartRG reserves the right to either suspend or terminate your access to the Site and account and terminate these Terms. All payments will be made in US Dollars. You are expressly agreeing that SmartRG and/or SmartRG’s third party payment processor is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of this Site and the fees will be billed to your credit card, or other payment method designated on your initial registration with this Site, and thereafter at regular intervals for the remainder of the term of these Terms. If you cancel your account at any time, you will not receive any refund. If you have a balance due on any account, you agree that SmartRG may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
All Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s use of the Services (collectively, “Taxes”). Customer is solely responsible for the payment of any such axes. In the event SmartRG are required to pay Taxes on Customer’s behalf, Customer shall promptly reimburse SmartRG for all amounts paid.
IMPORTANT NOTICE: IF CUSTOMER CONTRACTS FOR SUBSCRIPTION-TYPE SERVICES, AS FURTHER DESCRIBED BELOW, UNLESS CUSTOMER CANCELS PRIOR TO THE EXPIRATION OF ITS CURRENT SUBSCRIPTION TO USE THE SERVICES, SMARTRG WILL AUTOMATICALLY RENEW SUCH CUSTOMER’S SUBSCRIPTION ON EACH MONTHLY OR YEARLY ANNIVERSARY OF THE DATE CUSTOMER SUBSCRIBED TO USE THE SERVICES, AS APPLICABLE (OR THE LAST BUSINESS DAY OF THE MONTH, WHICHEVER IS EARLIER) AND WILL CHARGE CUSTOMER’S CREDIT CARD WITH THE APPLICABLE RENEWAL SUBSCRIPTION FEES AND ANY TAXES THAT MAY BE IMPOSED ON SUCH PAYMENT. SUBSCRIPTIONS MUST BE CANCELLED AT LEAST THIRTY (30) DAYS PRIOR TO EXPIRATION THEREOF. Customer may cancel its subscription by logging into its account, clicking the “Contact Us” button, and sending a cancellation request to SmartRG. SmartRG may contact Customer to better understand the circumstances for cancellation.
VIII. Electronic Communications
By using the Site and/or the Services provided on or through the Site, you consent to receiving electronic communications from SmartRG. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services provided on or through the Site. These electronic communications are part of your relationship with SmartRG. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
IX. Submissions and Customer Data
You are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on or through the Site (each a “Submission” and collectively, “Customer Data”). You may not upload, post or otherwise make available on this Site any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make. You have full responsibility for each Submission you make, including its legality, reliability and appropriateness.
Customer Data with its affiliates and business partners (like backbone network providers) for the sole purpose of providing to Customer the Services hereunder, provided that at all time SmartRG will comply with its confidentiality and data protection obligations. Unless otherwise expressly agreed in a writing that is signed by an authorized representative of SmartRG, SmartRG shall have no obligation to store Customer Data beyond any period specified in an order form and SmartRG has no obligation to retain Customer Data following thirty (30) days after complete termination of the Services. Customer shall have thirty (30) days from the date of termination of the Services in which to request a copy of their Customer Data, which will be made available to Customer in the same format maintained by SmartRG. Customer represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Data as may be necessary to permit the use contemplated under this Agreement. Customer bears all responsibility and liability for the accuracy and completeness of the Customer Data and SmartRG’s access, possession and use as permitted herein.
Customer acknowledges and agrees that SmartRG may compile anonymous, non-personally identifiable, technical, statistical or analytical data gathered or generated directly by use of the Services (“Aggregated Data”) which SmartRG collects, gathers and aggregates periodically as part of its Services. To the extent necessary, Customer hereby grants SmartRG a royalty-free, nonexclusive, irrevocable, right and license (with the right to sublicense through multiple tiers) to develop Aggregated Data from Customer’s use of the Services. SmartRG (its affiliates, licensors, partners and designated agents) may use this information to monitor and improve its products, services or to provide customized services or technologies to their customers. SmartRG collects and use this information in accordance with its privacy policies and in accordance with applicable data protection laws.
When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorized Activities” Section below. Those prohibitions do not require SmartRG to monitor, police or remove any Submissions or other information submitted by you or any other user.
X. Unauthorized Activities and Acceptable Use Policy
When using this Site and/or the services, you agree not to:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially, ethnically, or otherwise offensive language.
- Discuss or incite illegal activity.
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
- Post anything that exploits children or minors or that depicts cruelty to animals.
- Post any copyrighted or trademarked materials without the express permission from the owner.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access the Site.
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- Alter the opinions or comments posted by others on this Site.
- Post anything contrary to our public image, goodwill or reputation.
This list of prohibitions provides examples and is not complete or exclusive. SmartRG reserves the right to (a) terminate access to your account, your ability to post to this Site (or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that SmartRG determines is inappropriate or disruptive to this Site or to any other user of this Site and/or Services. SmartRG may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at SmartRG’s discretion, SmartRG will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
Unauthorized use of any Materials contained on this Site may violate certain laws and regulations.
You agree to indemnify and hold SmartRG and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) SmartRG or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.
Acceptable Use Policy
Customer shall be solely responsible for its actions and the actions of its users while using the Services. Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Services, including without limitation the provision of Customer Data; (b) not to send or store data on or to the Services which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, programs or data that may damage the operation of the Services or another’s computing device; (d) not to use the Services for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere or disrupt networks connected to the Services or interfere with other ability to access or use the Services; (f) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (g) to comply with all regulations, policies and procedures of networks connected to the Services and SmartRG’s service providers; and (h) to use the Services only in accordance with the Documentation. SmartRG reserves the right to amend, alter, or modify this Acceptable Use Policy at any time. SmartRG may deliver notice of such updated requirements to Customer via e-mail or through the Services. Customer’s continued access to and use of the Services following issuance of such updated Customer requirements shall constitute Customer’s acceptance thereof.
XI. Third-Party Sites
XII. Disclaimer of Warranties
Your use of this Site and/or the Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by SmartRG, and they may include inaccuracies or typographical or other errors. SmartRG does not warrant the accuracy of timeliness of the Materials contained on this Site. SmartRG has no liability for any errors or omissions in the Materials, whether provided by SmartRG, our licensors or suppliers or other users.
SMARTRG, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND MATERIALS AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. SMARTRG DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
XIII. Limitation of Liability
SMARTRG SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE. IN NO EVENT SHALL SMARTRG BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF SMARTRG KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
XIV. Local Laws; Export Control
SmartRG controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to SmartRG, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any Services offered through the Site or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and SmartRG is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that SmartRG is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
XVI. Dispute Resolution and Arbitration; Class Action Waiver
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at http://smartrg.com/about/support/. • All disputes, controversies, causes of action (in tort, contract, by statute or otherwise) (“Disputes”), including, without limitation, Disputes arising from or relating to this Arbitration Provision (including the interpretation, breach, termination and invalidity thereof) or the relationship that results from these Terms shall be resolved by binding arbitration by a single independent and impartial arbitrator under the applicable Commercial Dispute Resolution Procedures of the American Arbitration Association (“AAA”) (http://www.adr.org/, 1-800-778-7879). Arbitration replaces the right to go to court, and therefore the parties waive any right that you or SmartRG might otherwise have had to a jury trial or the opportunity to litigate any claims in court before either a judge or jury. Notwithstanding the foregoing, SmartRG reserves the right to pursue the protection of its intellectual property rights and confidential information outside of arbitration and to stop other illegal activities through injunctive relief or other equitable relief through the courts. If SmartRG chooses to litigate any dispute regarding the scope or validity of SmartRG’s intellectual property rights outside of arbitration, the arbitrator shall have no authority to make any finding or judgment with respect to such scope or validity.
Venue: The exclusive venue for the arbitration shall be Clark County, Washington, United States of America. The parties will agree on a reasonable location, in the event that Clark County is an inappropriate forum. The parties will endeavor to minimize the need for long distance travel through use of telephonic communications and submission of documents as permitted under the applicable rules for Expedited Procedures. The official language of the arbitration shall be English.
Arbitration shall be commenced by filing a Claim pursuant to the applicable American Arbitration Association Rules. The arbitration shall be completed, barring extraordinary circumstances within ninety (90) days of the filing of the Claim. The parties may grant reasonable continuance upon good cause shown. The Award shall be reasoned and shall be rendered within thirty (30) days of closure of the arbitration proceedings.
Rules and forms may be obtained and Claims may be filed at American Arbitration Association, 1633 Broadway, Floor 10, New York, NY 10019-6708, (212) 716 – 5800, (800) 778 – 7879, www.adr.org.
All parties have the right, at their own expense, to be represented by an attorney or spokesperson of their own choosing. Discovery shall be expeditiously completed within three (3) months of the time the parties are at issue. Each party shall produce relevant non-privileged documents requested by the other party. Discovery procedures available in court actions do not apply. The arbitrator shall grant oral and/or written discovery to preserve evidence or upon a showing of need. All discovery disputes shall be promptly submitted to and promptly resolved by the arbitrator. The Parties may elect to use any of the Expedited Procedures of the Commercial Dispute Resolution Procedures of the AAA.
Any party may seek a preliminary injunction or other provisional, injunctive, emergency or equitable relief (but not monetary relief) in a court of competent jurisdiction if, in its sole judgment, such relief is necessary to preserve the status quo or to prevent irreparable harm. The parties shall, despite seeking relief under this section, participate in good faith in the arbitration. • The arbitrator will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitration will be confidential unless the Parties request otherwise.
The Parties shall equally share the fees charged by the arbitrator and the AAA, but they shall otherwise bear their own expenses incurred in connection with conducting the arbitration and related discovery. Enforcement of the arbitrator’s judgment may be sought in any court of competent jurisdiction.
Governing law and Courts
These Terms involve transactions between the parties in interstate commerce and shall be governed by the Federal Arbitration Act, 9 USC § 1-19. Judgment upon any interim or final award shall be entered and confirmed in any court or tribunal of competent jurisdiction. The substantive law of the State of Washington (excluding its conflicts of law provisions) and applicable U.S. federal law, shall apply to all disputes and the Agreement. If there is a difference between the Federal Arbitration Act and Washington law, the Federal Arbitration Act controls. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement
Notwithstanding the foregoing, the Parties agree that any dispute arising under these Terms regarding the scope or validity of SmartRG’s Intellectual Property Rights, if not resolved informally, (i) shall be interpreted solely under the laws of Washington, USA; and (ii) shall be finally resolved exclusively in the courts located within Clark County, Washington, USA, and You hereby consent to the personal jurisdiction of such courts. You agree not to challenge the jurisdiction of the courts contemplated in the preceding sentence. In the event that You challenge such jurisdiction or bring an action in any other court, You agree that (i) SmartRG shall be entitled to recover all expenses, including attorneys’ fees, incurred in connection with Your challenge or court action, in addition to any award that may be given to SmartRG, and (ii) any judgment awarded to You shall be reduced by the amount of such expenses incurred by SmartRG, and, if such expenses exceed the award, You shall pay the difference to SmartRG.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or SmartRG may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to SmartRG Inc., 501 SE Columbia Shores Boulevard, Suite 500, Vancouver, WA 98661, United States of America. Attention Legal Department. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with SmartRG through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with SmartRG. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and SmartRG specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
SmartRG prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by SmartRG, may result in immediate termination of your access to this Site without prior notice to you. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. SmartRG’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and SmartRG and supersede all prior or contemporaneous negotiations, discussions or agreements between you and SmartRG about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
XVIII. California Consumer Notice
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Site and Service are provided by SmartRG Inc. If you have a question or complaint regarding the Site or Services, please contact Customer Service at http://smartrg.com/about/support/. You may also contact us by writing us at SmartRG Inc., 501 SE Columbia Shores Boulevard, Suite 500, Vancouver, WA 98661, United States of America. Attention Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
XIX. Contact Us
If you have any questions about these Terms or otherwise need to contact SmartRG for any reason, you can reach us at:
501 SE Columbia Shores Boulevard, Suite 500
Vancouver, WA 98661
United States of America
Attention Customer Service
+1 877 486 6210