Smarter Apps Terms of Service

These Terms of Service (the “Terms”) govern your access to and use of the mobile applications provided by Smarterapps.com, Inc. (“Smarter Apps”, “we”, “us” or “our”), including associated web pages and email messages, and any and all related services (collectively, the “Services”). These Terms also govern your access to any information and content made available through the Services (the “Content”). PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICES.

1. AGREEMENT

These Terms are a legal agreement between you and Smarter Apps. By using the Services, including installing and/or downloading any of our mobile applications (each an “App” and collectively the “Apps”), you: (a) agree to be bound by these Terms, (b) you represent and warrant that you have the right, authority and capacity to enter into these Terms; and (c) you own or control the mobile device by which you are accessing the Services. These Terms also apply to any App updates, supplements, and services made available by Smarter Apps that are not provided under a separate license or other agreement with us. If you do not agree to these Terms, do not install or use any App or Services. We may amend these Terms from time to time and will notify you of any update to the Terms that materially impact your use of the Services or your rights or obligations. Such notification may be through an in-app notification or website notice. Your continued use of the Services after we post any amendments to these Terms will signify your acceptance of such amendments. If you do not agree with any amendment, you must discontinue using the Services (including any Apps). If you have any questions or concerns regarding these Terms, please contact support at the email provided in Section U below. Do not use the Services until your questions and concerns have been answered to your satisfaction and you agree to abide by these Terms.

Notice to consumers Depending on the laws of the jurisdiction where you live, you may have certain rights that are in addition to these Terms, and certain provisions of these Terms may be unenforceable as to you. To the extent that any term or condition of these Terms is unenforceable to you, the remainder of these Terms shall remain in full force and effect.
Use of the Services is subject to our Privacy Policy, which is hereby incorporated into these Terms by reference. These Terms also include any additional payment terms and other requirements set forth on the download or purchase page through which you purchase or download any Apps. The Apps may be available through marketplaces that distribute mobile applications and that may have additional terms, conditions and usage rules that govern your use of the Apps if you download or install the Apps through such marketplaces.

2. AGE REQUIREMENT

You must be 13 years of age or older to install or to use the Apps. The Apps are intended for consumers located in the United States and North America. If you reside in another jurisdiction that requires a higher age limit for entering into online agreements, you represent and warrant that you meet such age requirement.

3. GRANT OF LICENSE

3.1 Right to Use the App. Subject to your compliance with these Terms, Smarter Apps grants you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license, to access, download and/or install the most current generally available version of the App provided to you as part of the Services solely for your lawful, personal, and non-commercial use.

3.2 Access. You must provide at your own expense the equipment, Internet connections, devices and service plans to access and use the Apps. If you access an App through a mobile network, your network or roaming provider’s messaging, data and other rates and fees may apply. You are solely responsible for any costs you incur to access the Apps from your device. Downloading, installing or using certain Apps may be prohibited or restricted by your network provider and not all Apps may work with your network provider or device. Smarter Apps makes no representation that the Apps can be accessed on all devices or wireless service plans. Smarter Apps makes no representation that the Apps are available in all languages or that the Apps are appropriate or available for use in any particular location.

3.3 Restricted Use. You may not rent, sell, lease, sublicense, distribute, assign, copy (other than a single copy for your own backup purposes), or in any way transfer or grant any rights to the Services or use the Services for the benefit of any third party. Unless expressly authorized by Smarter Apps, you are prohibited from making the Apps available over a network where it could be downloaded or used by multiple users. You agree that you will not use any robot, spider, other automatic or manual device or process to interfere or attempt to interfere with the proper working of the Services, except to remove our Apps from a mobile device which you own or control. You may not violate or attempt to violate the security of our Services. You may not modify, reverse-engineer, decompile, disassemble, or otherwise tamper with any Services, or attempt to do so for any reason or by any means. You may not access, create or modify the source code of any Services in any way. You do not have the right to and may not create derivative works of any Services or any portions thereof. All modifications or enhancements to the Services remain the sole property of Smarter Apps.

3.4 Updates. We reserve the right to add or remove features or functions to existing Services. When installed on your mobile device, the Apps periodically communicate with our servers. We may require the updating of the Apps on your mobile device when we release a new version of the Apps, or when we make new features available. This update may occur automatically or upon prior notice to you, and may occur all at once or over multiple sessions. You understand that we may require your review and acceptance of our then-current Terms before you will be permitted to use any updated versions of the Services. You acknowledge and agree that any obligation we may have to support previous versions of the Services may be ended upon the availability of updates, supplements or subsequent versions. You acknowledge and agree that we have no obligation to make available to you any updates, supplements or updated versions of the Services.

4. SUBSCRIPTIONS, PURCHASES & CANCELLATION RIGHTS

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4.1 Subscriptions. You may purchase certain Services on a subscription basis. Some Services may offer different subscription levels (e.g., free or premium) or subscription periods (e.g., weekly, monthly, yearly). Payment for a subscription may be processed in-App, through a third party mobile platform owner (e.g. Apple/iTunes or Google/Android) or directly through Smarter Apps and its third party payment processor.

4.2 Free Trials that automatically renew as a paid subscription. You may be offered a free trial of a subscription to our Services for a limited period of time. You are free to cancel a free trial subscription at any time during the free trial period. Please note: your free trial subscription will automatically renew as a paid subscription for the applicable subscription period unless you cancel at least 24 hours before the end of the free trial subscription period or, if you purchased through Google, before the end of the trial period.

4.3 Cancelling a subscription. You may cancel a subscription via the subscription setting in your Apple/iTunes or Google/Android account, or by sending us an email at support@smarterapps.com. If you subscribed for our Services directly through our App, you may cancel your subscription the subscription settings in the App. If you subscribed for our Services by purchasing and installing an App through a third party mobile platform owner (either through the third party platform or in-App), you may cancel your subscription by following the Apple App Store or Google Play Store instructions or via the subscription settings in your iTunes or Android account. Please note that uninstalling an App will not cancel your subscription. You have to use one of the methods described above to effectively cancel a subscription.

Once your free trial has converted into a paid subscription, you may cancel at any time, but the cancellation will only take effect starting at the end of the then current billing period. For example, if you have a monthly subscription that began on the first of the month and you cancel mid-month, your cancellation will be effective as of the end of that month. There are no refunds on subscriptions once the charge has gone through for the billing period.

4.4 Automatic Renewal; Recurring Charges. Paid subscriptions to the Services are auto-renewing. You will be charged the stated subscription amount for the subscription period upon completion of your registration and submission of your payment information or, if applicable, at the end of your free trial period if you have not canceled at least 24 hours in advance of the expiration of the trial period. You hereby agree to and authorize automatic and recurring billing, and you agree to pay the charges made to your account in connection therewith. You will be billed on a recurring basis at the then-current applicable subscription price plus any applicable taxes at the start of each new subscription period. Payments for renewal subscriptions are processed using the same billing cycle as your current subscription. Subscription fees may change at any time, to the fullest extent permitted under applicable law. Your subscription, and monthly billing of your account, will continue indefinitely until cancelled by you in accordance with the Cancellation Section of this Agreement.

4.5 One Time purchase subscriptions. Certain Services are available for one-time purchase (no recurring subscription) through either the Apple App or Google Play Store. You may uninstall Apps with paid Services at any time at your discretion. All one-time purchases of Services are non-refundable. Your purchase of a Service via a one-time purchase does not provide you with any guarantee of Service continuity. Unlimited subscriptions do not guarantee a life long or indefinite availability of the Service. All subscriptions are subject to the terms and conditions set forth in these Terms, including Smarter Apps’ right to discontinue services as set forth in Section 13 below. Smarter Apps reserves the right to, but has no obligation to, implement a partial refund policy in the event of discontinuation of a Service purchased via a one-time purchase.

5. FEATURES & FUNCTIONALITY

The various features and functionalities made available through the Services may change from time to time and are provided by Smarter Apps and third party suppliers (the “Third Party Partners”) who offer Content and/or services in conjunction with or through the Services and other users who may share Content on through their use of the Services. The Services may provide you with location data for basic navigational purposes only and are not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Smarter Apps, nor any of its Third Party Partners, guarantee the availability, accuracy, completeness, reliability, or timeliness of location data displayed through the Services.

6. CONTENT ON THE SERVICES

User Content. The Apps may allow users to submit and post Content that will be made public and available to other App users (“User Content”). You are responsible for your use of the Services and for any User Content you provide, including compliance with applicable laws, rules, and regulations. You should only provide User Content that you are comfortable sharing with others. Smarter Apps may also act to remove Objectionable Content. The decision to remove Objectionable Content shall be made at Smarter Apps’s sole discretion. Smarter Apps may terminate a user’s access to the Services if, under appropriate circumstances, the user is determined to be a repeat infringer.
You agree that you shall not post or share User Content on the Services that Smarter Apps deems Objectionable Content. “Objectionable Content” includes, but it not limited to:

You represent and warrant that you own or have the necessary rights in and to the Content that you post, including the right to post or share the User Content publicly through the Services and to permit Smarter Apps to publish and use such User Content as contemplated by these Terms. By submitting User Content to Smarter Apps you are hereby granting Smarter Apps and its users an irrevocable, worldwide, perpetual, royalty-free, non-exclusive, sub-licensable and transferrable license to copy, distribute, use, print, publish, republish, reformat, translate, modify, revise and incorporate into other works, prepare derivative works of and display in public in the Apps or in any form of media or expression. The User Content you submit to Smarter Apps may be used by Smarter Apps commercially at Smarter Apps’s sole discretion.
Smarter Apps makes no representations about the User Content that you or any user shares through the Services. You are responsible for obtaining all necessary permissions and rights before using any User Content not posted by you. You agree to accept all risks associated with the use of any User Content, including any reliance on the accuracy or completeness of such User Content. Under no circumstances will Smarter Apps be liable in any way for any User Content including, but not limited to, any errors or omissions in any such User Content, or for loss or damage of any kind incurred as a result of the transmission or posting of such User Content through the Services.

Content Screening and Disclosure. We do not, and cannot, pre-screen or monitor all Content. However, our representatives may monitor Content submission through the Apps, and you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the submission of any Content. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any Content.

We may access, preserve or disclose any of your information or Content (including without limitation chat text) if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against us or to comply with legal process (for example, subpoenas or warrants), including those issued by courts having jurisdiction over us or you; (ii) enforce or administer our agreements with users, such as these Terms; (iii) for fraud prevention, risk assessment, investigation, customer support, providing the app services or engineering support; (iv) protect the rights, property or safety of Smarter Apps, its users, or members of the public or (v) to report a crime or other offensive behavior.

Third-Party Services and Content. The Services may integrate, be integrated into, bundled, or be provided in connection with third-party services, advertising, feeds, and/or content. If you are installing an App that includes third party services and third party content, such services and content are subject to such third party’s terms of services and privacy policies, which may be found on the relevant Third Party Partner’s website. Our Services may provide access or links to Third Party Partner websites or resources. Smarter Apps has no control over such websites and resources, and you acknowledge and agree that Smarter Apps is not responsible for the availability of such external websites or resources, and does not endorse nor is responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that Smarter Apps shall not be responsible or liable, directly or indirectly, for any Third Party Partner Content, including any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Partner content, goods or services available on or through the Services or any such Third Party Partner website or resource. Smarter Apps will not be a party to or in any way be responsible for monitoring any transaction between you and Third Party Partners.

7. SECURITY

The Services, like other consumer technologies, may not be 100% secure. By accepting these Terms you acknowledge and accept that the Services may be exposed to unauthorized access, interception, corruption, damage or misuse, and cannot be regarded as 100% secure. You accept all responsibility for such security risks and any damage resulting therefrom. Further, you are solely responsible for securing any device used to access the Services from unauthorized access, including by such means as using complex password protection and enabling device encryption when available through settings on your device. You agree that Smarter Apps shall not be liable for any unauthorized access to your account or devices.

8. REGISTRATION/PASSWORDS

Registration. Some Services may not require a registration: however, some Services will permit or require you to create an account to participate or access additional features or functionalities (“Registration”). If such Registration is required, it will be made known to you when you attempt to participate or access such additional features or functionalities. Any registration required by a Third Party Partner is not governed by these Terms and you should refer to the relevant Third Party Partner’s website for their policies.

Passwords. You are the sole and exclusive guardian of any password and ID combination issued or chosen by you. Maintaining the confidentiality and security of your password(s) and ID(s) is solely your responsibility. You are fully responsible for all transactions undertaken by means of any account opened, held, accessed or used via your password and ID. You shall notify us immediately and confirm in writing any unauthorized use of accounts or any breach of security, including without limitation any loss, theft or unauthorized use of your password(s), and/or ID(s) or any related account. If we have reasonable grounds to suspect that the security of your password and/or ID has been compromised, we may suspend or terminate your account, refuse any and all current or future use of the services, and pursue any appropriate legal remedies. We shall not be responsible for any losses incurred in connection with any misuse of any password or ID.

Provided Information. If you provide any information in connection with a Registration, you must provide and maintain accurate, complete and current information. If we have reasonable grounds to suspect that your information is inaccurate, not current or not complete, we may suspend or terminate your use of the Services, and pursue any appropriate legal remedies.

9. UNINSTALL/REMOVAL OF AN APP

Uninstallation and removal methods vary depending on your device. To uninstall and remove the Apps, please use the application manager provided with your device or consult your device manual for reference. Please remember if you have a paid subscription to an App, uninstalling will not cancel your recurring payments. See Section 4.4 above for cancellation instructions.

If you choose to provide app store reviews or reviews via any social media channel, or other similar communication or messaging features or services, such information may be made publicly available, including the public-facing username as it appears with the review. If you prefer that we do not use your app reviews for promotional purposes, you will be able to elect for us not to do so by contacting the support email in Section U below (please include your name, mailing address, and email address). For security purposes, please do not include any password, social security number, payment card or other sensitive information via these features. We have the right, but not the obligation to monitor messages and communications between and among users for security and training purposes. We may, but are not obligated to, remove any content we deem inappropriate.

11. INTELLECTUAL PROPERTY

The Services, including all Content provided to you by Smarter Apps are Smarter Apps’s property or the property of Smarter Apps’s licensors, and are protected by U.S. and international copyright, trademarks, patents and other proprietary rights and laws relating to Intellectual Property Rights. “Intellectual Property Rights” means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral or similar rights. You may not delete, alter, or remove any copyright, trademark, or other proprietary rights notice we or Third Party Partners have placed on or within the Services. All rights not expressly granted hereunder are expressly reserved to Smarter Apps and its licensors.

Smarter Apps and any names, logos and affiliated properties, are the exclusive property of Smarter Apps or its affiliates. All other trademarks appearing through the Services, including in any App, are trademarks of their respective owners, and the use of such trademarks shall inure to the benefit of the trademark owner. Our partners or service providers may also have additional proprietary rights in the content which they make available through an Services. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained in herein should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.

Copyright/Submissions. You are solely responsible for any Content you contribute, submit, display or for any adaptations of works made on or through your use of the App(s). It is your obligation to ensure that such Content, including photos, text, video and music files, does not violate any copyright or other Intellectual Property Rights. You must either own or have a license to use any Content that you contribute, submit or display. Smarter Apps respects and expects its users to respect the rights of copyright holders. On notice, Smarter Apps will act appropriately to remove content that infringes the copyright rights of others. Smarter Apps reserves the right to disable the access to Apps or other services by anyone who uses them to repeatedly infringe the Intellectual Property Rights of others. If you believe an App, or elements, infringe your copyright rights, Please contact Smarter Apps’s Copyright Agent at:
Smarterapps.com, Inc.
___________
______________
Attn: Copyright Agent
Email: copyright@smarterapps.com
Please ensure your communication includes the following:

For other support please see Section U.

13. TERMINATION AND DISCONTINUATION OF SERVICES

Smarter Apps, in its sole discretion, may modify, suspend or discontinue any of the Services at any time, with or without notice. Further, Smarter Apps, with or without any reason, may at any time suspend or terminate any license hereunder and disable the Services, including any Apps or any of the component features of the Services. Smarter Apps may also discontinue maintenance and updates of any App. You agree that Smarter Apps shall not be liable to you or any third-party for any damages or losses resulting from our modification, suspension, discontinuation, termination or disabling of the Services.

Smarter Apps may block your access to the Services and terminate your rights under these Terms without any notice to you if you fail to comply with any of the terms and conditions of these Terms. Such termination will not limit any of Smarter Apps’s other rights or remedies at law or in equity.

Promptly upon expiration or termination of these Terms, you must cease all use of the Services, uninstall the Apps and destroy all copies of the Content. Sections 7, 10, 11, 12, and 14 through 21, shall survive termination or expiration of these Terms for any reason.

14. DISCLAIMER OF WARRANTY

TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS, AND YOU USE THEM AT YOUR SOLE RISK. SUBJECT TO APPLICABLE LAW, SMARTERAPPS, ON BEHALF OF ITSELF, AND ITS PARENT, AFFILIATES, LICENSORS, DISTRIBUTORS, VENDORS, AGENTS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY OTHER WARRANTY ARISING UNDER THE SALE OF GOODS ACTS 1893 AND 1980, USAGE OF TRADE, COURSE OF CONDUCT OR OTHERWISE. WITHOUT LIMITATION, SMARTERAPPS MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE SMARTERAPPS APPS AND SERVICES WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF THE APPS WILL MEET YOUR EXPECTATIONS. SMARTERAPPS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES; ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES OR SERVERS; ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; OR ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.

THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS SOLELY WITH YOU. SMARTERAPPS EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO PRODUCTS AND/OR SERVICES PROVIDED BY THIRD PARTY PARTNERS.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IN SUCH JURISDICTIONS, THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU INSOFAR AS THEY RELATE TO IMPLIED WARRANTIES.THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

15. LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY APPLICABLE LAWS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT Smarter Apps AND ITS PARENTS, AFFILIATES AND THIRD PARTY PARTNERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SMARTERAPPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (IV) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT SHALL SMARTERAPPS’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
IF ANY OF THE EXCLUSIONS SET FORTH IN THIS SECTION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ALL SUCH EXPRESS, IMPLIED AND STATUTORY WARRANTIES SHALL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE DATE ON WHICH YOU FIRST ACCESS THE SERVICES, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.

YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN THREE (3) YEARS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

16. INDEMNIFICATION

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS SMARTERAPPS, ITS PARENTS, AFFILIATE AND SUBSIDIARY COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS AND AGENTS FROM ANY AND ALL THIRD PARTY CLAIMS, LIABILITY, DAMAGES AND/OR COSTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES) ARISING FROM YOUR USE OF THE SERVICES, YOUR VIOLATION OF THESE TERMS OR YOUR INFRINGEMENT, OR INFRINGEMENT BY ANY OTHER USER OF YOUR ACCOUNT, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. YOU AGREE TO IMMEDIATELY NOTIFY SMARTERAPPS OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR ANY OTHER BREACH OF SECURITY KNOWN TO YOU.

17. EXPORT CONTROLS

The Services and the underlying information and technology are subject to U.S. and international laws, restrictions and regulations that may govern the import, export, downloading and use of the Apps. You agree to comply with these laws, restrictions and regulations when downloading or using the Apps.

18. NOTICE TO US GOVERNMENT END USERS

Any Services used or Apps installed for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), is provided with Restricted Rights as “Commercial Items,” as that terms 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. Pursuant to Federal Acquisition Regulation 12.212 (48 C.F.R. §12.212), the U.S. Government shall have only those rights specified in the license contained herein. The U.S. Government shall not be entitled to (i) technical information that is not customarily provided to the public or to (ii) use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation except as specified herein. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 C.F.R. 52.227-19, as applicable.

19. JURISDICTIONAL AVAILABILITY

Smarter Apps does not represent or warrant that the Services or any part thereof is appropriate or available for use in any particular jurisdiction. We may limit the availability of the Apps and block access thereto, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.

20. GOVERNING LAW AND JURISDICTION

These Terms, and all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort, or otherwise, shall be governed by the laws of the State of California, including California’s statutes of limitations governing your claim, without giving effect to its principles of conflicts of law, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of Section 21, the Class Action Waiver and Arbitration Agreement.

In the event that the Arbitration Agreement does not apply to you or your particular claim or dispute per Section 14.8, or if as a result of a decision by the arbitrator or a court order the Arbitration Agreement is found not to apply to you or to your particular claim or dispute, then you agree that any claim or dispute that has arisen or may arise between you and Smarter Apps must be resolved exclusively by a state or federal court located in the State of California. You and Smarter Apps agree to submit to the personal jurisdiction of the courts located within the State of California for the purpose of litigating all such claims or disputes.

21. ARBITRATION AGREEMENT - PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS AND OF NON-INDIVIDUALIZED RELIEF

This Section 20 is referred to in these Terms as the “Arbitration Agreement”. PLEASE READ THIS SECTION CAREFULLY – THIS ARBITRATION AGREEMENT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. THIS ARBITRATION AGREEMENT REQUIRES YOU TO SUBMIT MOST DISPUTES WITH SMARTER APPS TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. YOU WILL NOT HAVE THE RIGHT TO HAVE YOUR CLAIMS HEARD BY A JURY. YOU MAY OPT OUT OF THIS ARBITRATION AGREEMENT IN SOME CIRCUMSTANCES AS DETAILED IN SECTION 20.8 BELOW.

ANY ARBITRATION AWARD PURSUANT TO THIS ARBITRATION AGREEMENT IS FINAL AND BINDING AND SUBJECT ONLY TO LIMITED REVIEW BY A COURT INCLUDING LIMITED RIGHTS TO APPEAL THE ARBITRATION AWARD.

20.1 Prohibition of Class and Representative Actions and of Non-Individualized Relief

YOU AND SMARTER APPS AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION, ACTION OR PROCEEDING. UNLESS BOTH YOU AND SMARTER APPS EXPRESSLY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AGAINST SMARTER APPS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED DOES NOT ENTITLE ANY OTHER PERSON TO SIMILAR RELIEF. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable, then the Arbitration Agreement in these Terms shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Nothing in this Section 20.1 prevents you and Smarter Apps from mutually agreeing to participate in a class-wide settlement of claims or for claims to be arbitrated on a batched basis.

20.2 Agreement to Arbitrate

By installing our App or using our Services, you agree that all claims or disputes relating to or arising out of our Apps or Services or these Terms or the breach thereof, whether sounding in contract, tort, or otherwise that have arisen or may arise between you and Smarter Apps or its parent company and affiliates, shall be resolved exclusively through final and binding arbitration in accordance with the terms of this Arbitration Agreement, except for exceptions set forth in Section 20.8. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve the aforementioned claims and disputes, including all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms and any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration.

Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. If for whatever reason the rules and procedures of the Federal Arbitration Act cannot apply, the laws of the State of California governing arbitration agreements shall apply.

This Arbitration Agreement is intended to be interpreted broadly, and it applies to claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, subject to and in accordance with Section 20.10 (Future Changes to this Arbitration Agreement) below. If you agree to these Terms, you accept this Arbitration Agreement and any earlier arbitration agreement you had with Smarter Apps is superseded by this Arbitration Agreement and will apply to any dispute regardless of when it arose.

20.3 Pre-Arbitration Dispute Resolution

In order to resolve claims and disputes in a prompt, low‐cost and mutually beneficial outcome, You and Smarter Apps agree that before either party commences arbitration against the other (or initiates any other judicial action as permitted by this Arbitration Agreement), you and Smarter Apps will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any claim or dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the Informal Dispute Resolution Conference, but you must also appear and participate personally in the conference. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same Informal Dispute Resolution Conference. The party initiating a dispute must give written notice to the other party of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), and the Informal Dispute Resolution Conference shall occur within 45 days after the other party receives such Notice, provided the Notice qualifies with the requisites set forth below, and unless an extension is mutually agreed upon by the parties. Notice to Smarter Apps that you intend to initiate an Informal Dispute Resolution Conference must be sent by registered mail to Smarterapps.com, Inc., Attn: Chief Executive Officer, 501 Silverside Road Suite 105, Wilmington, DE 19809. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address; (2) the name, telephone number, mailing address and e‐mail address of your legal counsel, if any; (3) a detailed description of your claim together with substantiation of the facts on which you base your claim, with sufficient detail for Smarter Apps to assess its merits; and (4) the specific relief sought.

In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s claim. A good faith participation and engagement in the Informal Dispute Resolution Conference shall be and is a condition precedent and pre-requisite that must be fulfilled before commencing arbitration (or initiates any other judicial action as permitted by this Arbitration Agreement). The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

20.4 Arbitration Procedures

  1. JAMS Rules

You and Smarter Apps agree that a claim or dispute that has not been resolved via the Informal Dispute Resolution Conference shall be finally resolved through binding arbitration (subject to the exceptions set forth in Section 20.8 below).

Arbitration will be conducted by a neutral arbitrator in accordance with the rules of JAMS that are in effect at the time the arbitration is initiated (collectively referred to as the “JAMS Rules”), as modified by this Arbitration Agreement, and excluding the JAMS Class Action Procedures. For information on JAMS, please visit its website available at https://www.jamsadr.com/. Information about JAMS’s Rules and fees for consumer disputes can be found at the JAMS consumer arbitration page available at https://www.jamsadr.com/rules-comprehensive-arbitration/. If there is any inconsistency between the JAMS Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms, including without limitation, the limitation of liability provisions in these Terms.

The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from JAMS’ roster of arbitrators with experience in consumer and/or internet industry disputes. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Demand for Arbitration (as defined below), then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules.

  1. Demand for Arbitration

If the Informal Dispute Resolution Conference has occurred and all requisites set forth in Section 20.3 above have been met, and the Informal Dispute Resolution Conference has not resolved the dispute satisfactorily to both parties within ninety (90) days after receipt of the Notice, you may commence an arbitration against Smarter Apps by filing a demand for arbitration that includes: (1) the name, telephone number, mailing address, and e‐mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual basis of those claims with sufficient detail as required in Paragraph (c) below; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution Conference; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration (“Demand for Arbitration”). You can find a sample Demand for Arbitration at www.jamsadr.com. Three copies of the Demand for Arbitration, plus the appropriate filing fee must be filed with JAMS at Two Embarcadero Center, Suite 1500, San Francisco, CA 94111, and one copy must be sent to Smarterapps.com, Inc., Attn: Chief Executive Officer, 501 Silverside Road Suite 105, Wilmington, DE 19809. For more information, see the JAMS arbitration rules and forms, https://www.jamsadr.com/rules-download/. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive the copy of your filed Demand for Arbitration, we may assert any counterclaims we may have against you.

  1. Demand for Arbitration Must Contain Sufficient Information

Any Demand for Arbitration or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based, and must include proof that the claimant is party to this Arbitration Agreement and to these Terms. The arbitrator may require amendment of any Demand for Arbitration or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11), including for any claim filed on behalf of a claimant who is not a party to this Arbitration Agreement or these Terms.

  1. Arbitration Location or Via Written Materials

If the amount in controversy between you and Smarter Apps exceeds $10,000, either party may request an arbitration hearing, and that hearing shall presumptively be held via video or telephone conference unless (i) the arbitrator determines there is good cause to hold an in-person hearing or (ii) the parties agree otherwise. In the event there is an in-person hearing, the location of the hearing will be in San Francisco or any other location as mutually agreed by the parties. If the amount in controversy between you and Smarter Apps is less than $10,000, then the arbitration will be conducted solely by submission of written materials that you and we submit to the arbitrator, unless the arbitrator determines that a hearing is necessary or the parties agree otherwise. In such cases, the parties agree to remote participation in the hearing by video or telephone conference.

  1. Arbitration Decision & Award

The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users or visitors of the Smarter Apps Platform.

  1. Time to Initiate Proceedings

Any Demand for Arbitration against Smarter Apps must be commenced by providing a Notice to Smarter Apps within one (1) year from the date you first knew or reasonably should have known of the act, omission or default giving rise to your claim. If applicable law prohibits a one (1) year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.

20.5 Costs of Arbitration

Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Arbitration Agreement. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Smarter Apps for all fees associated with the arbitration paid by Smarter Apps.

20.6 Confidentiality

All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.

20.7 Limited Rights to Appeal

Once the arbitrator has rendered their award, it is binding on the parties and it is not possible to appeal an arbitration award to a court on the usual appellate grounds under federal or state laws. Under JAMS Rules, there are only very narrow grounds on which parties may appeal an arbitration award.

20.8 Exceptions to Arbitration Agreement

  1. Small Claims Court and Time-Barred Claims

Notwithstanding this Arbitration Agreement, you and Smarter Apps agree that either party may elect to have disputes resolved in a small claims court regardless of what forum the filing party initially chose provided such disputes are within the scope of that court’s jurisdiction. This exception does not apply to any appeals from small claims courts or any efforts to enforce an arbitration award, which are subject to this Arbitration Agreement.

Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may in fact be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this Arbitration Agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed (and any applicable statute of limitations tolled) pending the outcome of such action.

  1. Provisional Relief

Either party may apply to a court of competent jurisdiction, as set forth herein, for a provisional remedy in connection with an arbitrable controversy, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief.

20.9 California Resident Complaints

If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

20.10 Future Changes to this Arbitration Agreement

Notwithstanding any provision in these Terms to the contrary, you and Smarter Apps agree that if Smarter Apps makes any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, such change shall not be effective until at least 30 days from the date of posting, and shall not apply to any claim that was filed in a legal proceeding against Smarter Apps prior to the effective date of the change. Moreover, if we seek to terminate this Arbitration Agreement from these Terms, such termination shall not be effective until 30 days after the publication of the version of these Terms removing the Arbitration Agreement, and shall not be effective as to any claim that was filed in a legal proceeding against Smarter Apps prior to the effective date of removal.

21. NO WAIVER OF CLAIMS

No failure or delay by Smarter Apps in exercising any right, power or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms. If any provision of these Terms shall be found unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.

22. HOW TO CONTACT US.

If you have any questions about these Terms, please contact us by email at support@smarterapps.com.

23. APP STORE SPECIFIC TERMS

By accessing the Services through a device made by Apple, Inc. (“Apple”), you specifically acknowledge and agree that: