Terms and Conditions - Commercial Products - Smeester & Associates - Denver, Colorado USA

Terms and Conditions – Commercial Products

Introduction

Hello, welcome to the conditions governing our provision of services for Commercial Products.  If you receive services from Smeester and Associates (“SA”), you accept these conditions.  Please read them carefully and have a great day!

This User Agreement, the Master Consulting Agreement, Work Orders, our Privacy Policy and any other agreements you may execute with SA and all policies posted on our website set out the terms on which SA offers you services, applications and tools (collectively, the “Services”). Please also review any other policies and notices posted on our website from time to time.  You agree to comply with all the above when accessing or using our Services.

Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration.

Help Desk Services Scope of Services

Desktop Care and Monitoring (Total Desktop Care+)


Using SA

In connection with using or accessing the Services you will not:

  • breach or circumvent any laws, third party rights or our systems, policies, or determinations of your account status;
  • use our Services if you are temporarily or indefinitely suspended from using our sites, services, applications or tools;
  • fail to pay for items purchased by you, unless you have a valid reason as set out in SA policy;
  • transfer your SA account and user ID to another party without our consent;
  • distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
  • distribute viruses or any other technologies that may harm SA, or the interests or property of users;
  • use any robot, spider, scraper or other automated means to access our Services for any purpose;
  • bypass our robot exclusion headers, interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
  • export or re-export any SA application or tool except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
  • reproduce, perform, display, distribute, reverse engineer, or prepare derivative works from content that belongs to or is licensed to SA, or that comes from the Services and belongs to another SA user or to a third party including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of SA and/or any other party holding the right to license such use;
  • commercialize any SA application or any information or software associated with such application;
  • harvest or otherwise collect information about users without their consent; or
  • circumvent any technical measures we use to provide the Services.

If we believe you are abusing SA in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.

We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate our Services to anyone for any reason at our discretion.


Fees

The fees we charge for using our Services are as published by SA from time to time or as set forth in invoices and work orders we may send to you. We may change our fees from time to time by giving you reasonable advance notice of any such change.

Users shall pay fees as set forth in separate agreements, invoices or work orders with SA if applicable.  If no other payment terms are set forth in any separate agreement, terms for payment shall be net 15 from date of invoice.  SA requires that payment for all Services be made monthly in advance by credit card, debit card or by wire transfer of immediately available funds.  Any charges that remain unpaid 30 days past the due date will be assessed a $25 late payment fee per invoice, and a monthly interest rate of one and one-half percent (1.5%).

Under no circumstances will SA be responsible for any refund or proposed cancellation of an order, unless otherwise agreed in writing by SA and you.

SA reserves the right to suspend service in the event your monetary balance for any invoice exceeds 30 days past due.  Any disputes as to charges on invoices must be brought to SA’s attention within 15 days from the date on the invoice and any charges not so disputed shall be deemed valid, due and owing.


Authorization to Contact You; Recording Calls

You consent to receive autodialed or prerecorded calls and text messages from SA at any telephone number that you have provided us or that we have otherwise obtained. We may place such calls and texts to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; (vii) contact you with offers and promotions; or (vi) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you.

SA may share your telephone numbers with our service providers who we have contracted with to assist us in pursuing our rights or performing our obligations under this User Agreement, our policies, applicable law, or any other agreement we may have with you. You agree these service providers may also contact you using autodialed or prerecorded calls and text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.

SA may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with SA or its agents for quality control and training purposes or for its own protection.


Disclaimer of Warranties; Limitation of Liability

We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Update and other notification functionality in SA’s applications may not occur in real time. Such functionality is subject to delays beyond SA’s control.

You agree that you are making use of our Services at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.  Any warranties that might be applicable to products purchased using our Services will be provided by the supplier of the products, if at all.  SA shall not be responsible for any customer service or other inquiries relating to products sold through our Services.  SA shall not be responsible for, and will not accept, any returns of products sold through our Services.

In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:

  • your use of or your inability to use our Services;
  • delays or disruptions in our Services;
  • viruses or other malicious software obtained by accessing, or linking to, our Services;
  • glitches, bugs, errors, or inaccuracies of any kind in our Services;
  • damage to your hardware device from the use of any SA Service; or
  • your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.

In no event shall either party be liable for any indirect, incidental, special or consequential damages, including loss of profits, revenue, data, or use, incurred by either party or any third party, whether in an action in contract or tort, in any way arising from either party’s performance or nonperformance relating to the services rendered by SA, even if the other party or any other person has been advised of the possibility of such damages.  Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the total fees which you paid to us in the 6 months prior to the action giving rise to the liability.


Indemnity

You will indemnify and hold us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement, your improper use of SA’s Services or your breach of any law or the rights of a third party.


Legal Disputes

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND SA HAVE AGAINST EACH OTHER ARE RESOLVED.

You and SA agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the SA User Agreement your use of or access to the Services, or any products or services sold or purchased through the Services will be resolved in accordance with the provisions set forth in this Legal Disputes Section.

A. Applicable Law

You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Colorado, without regard to principles of conflict of laws, will govern the User Agreement and any claim or dispute that has arisen or may arise between you and SA, except as otherwise stated in the User Agreement.

B. Agreement to Arbitrate

You and SA each agree that any and all disputes or claims that have arisen or may arise between you and SA relating in any way to or arising out of this or previous versions of the User Agreement, your use of or access to SA’s Services, or any products or services sold, offered, or purchased through SA’s Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.

  1. Arbitration Procedures

Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.

The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org . The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration: rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.

A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). SA will send any Notice to you to the physical address we have on file associated with your SA account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.

If you and SA are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or SA may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party.  In the event SA initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your SA account. Any settlement offer made by you or SA shall not be disclosed to the arbitrator.

The arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or SA may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and SA subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or SA may attend by telephone, unless the arbitrator requires otherwise.

The arbitrator will decide the substance of all claims in accordance with applicable law, 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, but is bound by rulings in prior arbitrations involving the same SA user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

  1. Costs of Arbitration

Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, SA will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by SA should be submitted by mail to the AAA along with your Demand for Arbitration and SA will make arrangements to pay all necessary fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse SA for all fees associated with the arbitration paid by SA on your behalf that you otherwise would be obligated to pay under the AAA’s rules.

  1. Severability

If an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.  The remainder of the Agreement and its Legal Disputes Section will continue to apply.

  1. Future Amendments to the Agreement to Arbitrate

Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against SA prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and SA. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.SA.com at least 30 days before the effective date of the amendments and by providing notice through the SA Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30 day period and you will not be bound by the amended terms.

C. Judicial Forum for Legal Disputes

Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and SA must be resolved exclusively by a state or federal court located in Denver, Colorado. You and SA agree to submit to the personal jurisdiction of the courts located within Denver, Colorado for the purpose of litigating all such claims or disputes.


General

Except as otherwise provided in this Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions.  In our sole discretion, we may assign this User Agreement, by providing notice of such assignment in accordance with the Notices Section.

Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.

We may amend this User Agreement at any time by posting the amended terms on www.smeester.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an SA representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.

The policies posted on our sites may be changed from time to time. Changes take effect when we post them on the SA site.

If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.

The User Agreement, the Privacy Notice, and all polices set forth the entire understanding and agreement between you and SA and supersede all prior understandings and agreements of the parties.

The following Sections survive any termination of this User Agreement: Fees,  Disclaimer of Warranties; Limitation of Liability; Indemnity, and Legal Disputes.

If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services 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.