Terms of Use Agreement
Last Updated: February 14, 2023
1. Acceptance of the Terms of Use.
1.1 Waste Repurposing International, Inc. d/b/a SmarterX, a Delaware corporation, located at 1007 Pearl Street, Suite 210, Boulder, CO 80302 (herein referred to as “SmarterX,” “we,” “us” or “our”) owns and operates certain web sites, including http://www.smarterx.com (the “Web Sites”) and provides a variety of product classification services that power a more efficient and sustainable supply chain. We work with the largest retailers and suppliers in North America who rely on SmarterX product classifications for proper handling instructions, workplace safety, transportation, waste disposal, recycling, and donation (collectively, the Web Sites and such services, including any future features, software, data, and applications, the “SmarterX Services”). All use of the SmarterX Services is subject to the terms and conditions contained in this Terms of Use Agreement, as amended from time to time (this “Agreement”). Please read this Agreement carefully. By accessing, browsing, or otherwise using the SmarterX Services, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you do not accept the terms and conditions of this Agreement, you shall not access, browse, or use the SmarterX Services.
1.2 Arbitration. PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. Section 9 of this Agreement contains an Arbitration Agreement, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration. Under the Arbitration Agreement, (a) you will only be permitted to pursue claims against SmarterX on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis, AND (c) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
1.3 Modifications. You understand and agree that we may change this Agreement at any time without prior notice. If we do this, we will post the changes to this Agreement on this page and will indicate at the top of this page the date this Agreement was last revised. You may read a current, effective copy of this Agreement at any time by visiting https://www.smarterx.com/legal/terms-of-use. SmarterX will notify you of any material changes to this Agreement either through a pop-up notice, email, or through other reasonable means. SmarterX is not responsible for lost notifications. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the SmarterX Services or changes made for legal reasons will be effective immediately. Your continued use of the SmarterX Services after such date shall constitute your acceptance of the new Agreement. If you do not agree to abide by these or any future Agreements, do not access, browse, or use (or continue to access, browse, or use) the SmarterX Services.
1.4 Additional Terms. In addition, when using the SmarterX Services, you will be subject to any additional terms applicable to such SmarterX Services that may be posted on the SmarterX Services from time to time, including without limitation, SmarterX’s Privacy Policy located at https://www.smarterx.com/legal/privacy-policy (the “Privacy Policy”).
1.5 Retailer or Supplier Users. This agreement governs the use by individual users of the SmarterX Services. If you are a retailer or supplier, then the terms and conditions governing your access and use of any SmarterX Services may be set forth in a separate agreement (“Services Agreement”) between you and SmarterX. In the event of any conflict between this Agreement and the Services Agreement, the Services Agreement shall prevail.
2. SmarterX Services
2.1 General. SmarterX operates the Web Sites to provide you with information about SmarterX and SmarterX Services. The SmarterX Services are designed to offer (a) a way for a retailer’s supplier to share information to produce product classifications; (b) a way for retailers to share information about their UPC inventory lists, product suppliers, custom business rules and other retailer specific identifiers; and (c) a way for product information and classifications to be shared through the SmarterX Services to retailers and other recipients that sell, store, transport or dispose of a supplier’s products.
2.2 Registration; Age Restrictions. You may be required to register with SmarterX in order to access and use certain SmarterX Services. If you choose to register for the SmarterX Services, you agree to provide and maintain true, accurate, current, and complete information about yourself. You are responsible for maintaining the confidentiality of your account and password, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify SmarterX of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the SmarterX Services. SmarterX will not be liable for any loss or damage arising from your failure to comply with this Section. Registration data and certain other information about you are governed by the Privacy Policy. If you are under 18 years of age, you are not authorized to use the SmarterX Services, with or without registering.
2.3 Restrictions. Unless otherwise expressly authorized by SmarterX or within the SmarterX Services, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or upload for any commercial purposes, any portion of the SmarterX Services, use of the SmarterX Services, or access to the SmarterX Services. Unless otherwise expressly agreed by SmarterX, the SmarterX Services are for your personal use.
2.4 Changes to SmarterX Services. SmarterX reserves the right to modify, suspend, or discontinue the SmarterX Services (or any part thereof) with or without notice. You agree that SmarterX will not be liable to you or any third party for any modification, suspension, or discontinuance of the SmarterX Services (or any part thereof).
3. Content; Intellectual Property Rights.
3.1 Content. The SmarterX Services contain software, text, data, graphics, images, information and other materials (collectively referred to as the “Content”). We may own the Content or portions of the Content may be made available to us through arrangements that we have with third parties. The Content is protected by U.S. and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy, or display the Content except as permitted under this Agreement. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. In connection with your use of the Content and SmarterX Services, you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. The use or posting of any of the Content on any other web site or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Content and SmarterX Services shall automatically terminate and you shall immediately destroy any copies you have made of the Content.
3.2 Trademarks. The trademarks, service marks, logos, and design of SmarterX (the “SmarterX Trademarks”) used and displayed on the SmarterX Services are registered and unregistered trademarks or service marks of SmarterX. Other company, product, and service names located on the SmarterX Services may be trademarks or service marks owned by third parties (collectively with the SmarterX Trademarks, the “Trademarks”). Nothing on the SmarterX Services or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the SmarterX Services without the prior written consent of SmarterX specific for each such use. The Trademarks may not be used to disparage SmarterX or the applicable third party, SmarterX’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any web site is prohibited without SmarterX’s prior written consent. All goodwill generated from the use of any SmarterX Trademark shall inure to SmarterX’s benefit.
3.3 Use. You agree not to: (a) take any action that imposes an unreasonable load on the infrastructure of the SmarterX Services; (b) use any device, software, or routine to interfere or attempt to interfere with the proper working of the SmarterX Services or any activity being conducted on the SmarterX Services; (c) attempt to decipher, decompile, disassemble, or reverse engineer any of the software comprising or making up the SmarterX Services; (d) delete or alter any material posted on the SmarterX Services by SmarterX or any other person or entity; (e) frame or link to any of the materials or information available on the SmarterX Services; (f) misrepresent any of your metrics or statistics associated with your social accounts and performance of your posts as may be represented on the SmarterX Services; or (g) use bots or other artificial means to inflate your metrics or statistics associated with your social accounts and performance of your posts as may be represented on the SmarterX Services.
3.4 User Content. You are solely responsible for all information, data, text, ingredients lists, product information, product descriptions, product details, messages, images or other materials that you upload, post, publish or display (hereinafter, “upload”), or have uploaded, on the SmarterX Services, or that you authenticate and permit SmarterX to upload, or have authenticated and permitted SmarterX to upload, to the SmarterX Services, including through the integration and use of third-party data warehouses and data syndication services within your SmarterX Services account, (collectively, “User Content”). SmarterX reserves the right to investigate and take appropriate legal action against anyone who, in SmarterX’s sole discretion, violates this provision, including without limitation, removing content from the Site, suspending or terminating the account of such violators, and reporting you to the law enforcement authorities. You agree to not use the SmarterX Services to: - upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, or ethnically or otherwise objectionable; or (vii) in our sole judgment is objectionable or which restricts or inhibits any other person from using or enjoying the SmarterX Services, or which may expose SmarterX or its customers or users to any harm or liability of any type; - interfere with or disrupt the SmarterX Services or servers or networks connected to the SmarterX Services; - violate any applicable local, state, national, or international law, or any regulations having the force of law; - impersonate any person or entity; - falsely state or otherwise misrepresent your affiliation with a person or entity, including any suppliers or retailers; - harvest or collect email addresses or other contact information of other users from the SmarterX Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications; - further or promote any criminal activity or enterprise; or - obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the SmarterX Services.
3.5 License to User Content. By uploading (or permitting SmarterX to upload), or having previously uploaded (or permitted SmarterX to upload), any User Content or authorizing, or having previously authorized, SmarterX’s access to your third-party data warehouses or data syndication services on or through the SmarterX Services, you hereby grant to SmarterX a perpetual, irrevocable, transferrable, sublicensable (through multiple tiers) worldwide license to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute such User Content to operate, promote, and improve our Services, and to develop new products and services. SmarterX and its affiliates may also derive statistical and usage data relating to your User Content and/or your use of the SmarterX Services (“Statistical Data”). SmarterX may use the Statistical Data for any purposes, including combining it with or into other data and information available, derived or obtained from other customers, licensees, users, or other sources. In addition, for the avoidance of doubt, SmarterX may use any publicly available data or data that is already in SmarterX’s or its affiliates’ control, regardless of whether such data qualifies as User Content hereunder, for any purposes permitted by applicable law. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information about the SmarterX Services (collectively, “Submissions”), provided by you to SmarterX are non-confidential and SmarterX will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
3.6 Preservation, Disclosure, and Removal of User Content. You acknowledge and agree that SmarterX may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of SmarterX, our customers, users of the SmarterX Services, and the general public. You understand that the technical processing and transmission of the SmarterX Services, including your content, may involve transmissions over various networks and changes to conform and adapt to the technical requirements of connecting networks or devices. In addition, SmarterX has the sole right to remove any User Content from the SmarterX Services that it believes in its sole discretion is in violation of this Agreement or is otherwise inappropriate in any way.
3.7 No Liability for Third-Party Content. Under no circumstances will SmarterX be liable in any way for any Content uploaded by third parties or at the direction of users of the SmarterX Services, including, but not limited to, for 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 uploaded or emailed via the SmarterX Services. You acknowledge that SmarterX may not pre-screen Content, but that SmarterX and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the SmarterX Services. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
3.8 External Sites. The Web Sites may contain links to third-party web sites, including retailer, supplier, governmental, non-government organizations, regulatory and other web sites (“External Sites”). These links are provided solely as a convenience to you and not as a referral or endorsement by us of any other entity or the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all web sites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
3.9 Protected Content. Certain elements of the SmarterX Services are protected by trade dress, copyright, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without the express written consent from SmarterX for each and every instance.
3.10 Copyright and the DMCA. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials on the SmarterX Services infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. SmarterX will process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement. Notices and counter-notices must meet the then current statutory requirements imposed by the DMCA. Notices and counter notices with respect to the Web Sites should be sent to SmarterX at: By Mail: By Mail:Waste Repurposing International, Inc. d/b/a SmarterX 1007 Pearl Street, Suite 210, Boulder, CO 80302 By Email: operations@smarterx.com To be effective, the notification must be in writing and contain the following information: - an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; - a description of the copyrighted work or other intellectual property that you claim has been infringed; - a description of where the material that you claim is infringing is located on the SmarterX Service, with enough detail that we may find it on the SmarterX Service; your address, telephone number, and email address; - a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and - a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to SmarterX: - your physical or electronic signature; - identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; - a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and - your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the District of Delaware, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received, SmarterX will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
3.11 Repeat Infringer Policy. SmarterX, in its sole discretion, may limit or terminate access to the SmarterX Services for users who are deemed to be repeat infringers. SmarterX may also in its sole discretion limit or prevent access to the SmarterX Services by any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
4. Limitation of Liability and Disclaimer of Warranties.
4.1 SMARTERX, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS (COLLECTIVELY, THE “SMARTERX PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT OR THE SMARTERX SERVICES, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY. THE SMARTERX PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF THE CONTENT OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES, OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE SmarterX SERVICES AND THE CONTENT AT YOUR OWN RISK. THE SMARTERX PARTIES DO NOT WARRANT THAT THE SMARTERX SERVICES WILL OPERATE ERROR-FREE OR THAT THE SMARTERX SERVICES, THEIR SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SMARTERX SERVICES OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO SMARTERX PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS. THE SMARTERX SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE SMARTERX PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. IF YOU ARE A USER FROM NEW JERSEY, THIS SECTION 4 TITLED “LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES” IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
4.2 IN NO EVENT SHALL ANY SmarterX PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SMARTERX SERVICES AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH SMARTERX PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.3 Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, THE LIABILITY OF THE SMARTERX PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
5. Indemnification.
You agree to defend, indemnify, and hold harmless the SmarterX Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your access to, use, or misuse of the Content or SmarterX Services. SmarterX shall provide notice to you of any such claim, suit, or proceeding. SmarterX reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting SmarterX’s defense of such matter.
If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
6. Termination of the Agreement.
6.1 Right to Terminate. SmarterX reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the SmarterX Services or the Content at any time and for any reason without prior notice or liability. SmarterX reserves the right to change, suspend, or discontinue all or any part of the SmarterX Services or the Content at any time without prior notice or liability.
6.2 Surviving Provisions. Sections 2 (SmarterX Services), 3 (Content; Intellectual Property Rights), 4 (Limitation of Liability and Disclaimer of Warranties), 5 (Indemnification), 6 (Termination of the Agreement), 9 (Dispute Resolution By Binding Arbitration), and 10 (Miscellaneous) shall survive the termination of this Agreement.
- User Must Comply with Applicable Laws.
7.1 Hosted Content. These Web Sites are hosted with Amazon Web Services based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Web Sites or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
7.2 Export Controls. The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
8. U.S. Government Restricted Rights.
The Content is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Web Sites or Content by the Government constitutes acknowledgement of our proprietary rights in the Web Sites and Content.
9. Dispute Resolution By Binding Arbitration
9.1 Notice of Arbitration. PLEASE READ THIS SECTION 9 CAREFULLY AS IT AFFECTS YOUR RIGHTS.
9.2 Agreement to Arbitrate. This Section 9 is referred to as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and SmarterX, whether relating to this Agreement (including any alleged breach thereof), the SmarterX Services, any advertising, any aspect of the relationship between us, or otherwise, shall be resolved exclusively through final and binding arbitration, rather than a court in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and SmarterX are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
9.3 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND SmarterX AGREE THAT WE MAY EACH BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND SmarterX AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS 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), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
9.4 Pre-Arbitration Dispute Resolution. SmarterX is always interested in resolving any disputes amicably and efficiently, and most user concerns regarding the Web Sites can be resolved quickly and to the user’s satisfaction by emailing customer support at support@smarterx.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to SmarterX should be sent to 1007 Pearl Street, Suite 210, Boulder, CO 80302 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought. If SmarterX and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or SmarterX may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by SmarterX or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or SmarterX is entitled.
9.5 Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website at http://www.adr.org . Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between the AAA 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 this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless SmarterX and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, SmarterX agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
9.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, SmarterX will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, SmarterX will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, SmarterX will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Finally, if the value of the relief sought is $75,000 or less, SmarterX will pay reasonable attorneys’ fees should you prevail. SmarterX will not seek attorneys’ fees from you. But, if you initiate an arbitration in which you seek more than $75,000 in relief, the payment of attorneys’ fees will be governed by the AAA Rules.
9.7 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.
9.8 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 9.3 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any provision in Section 9.3 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
9.9 Future Changes to Arbitration Agreement. Notwithstanding any provision in this Agreement to the contrary, SmarterX agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the SmarterX Services, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
10. Miscellaneous.
Subject to Section 9 above, this Agreement is governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws provisions. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of SmarterX Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. Failure of SmarterX to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against SmarterX unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. Except as expressly agreed by SmarterX and you, this Agreement constitutes the entire Agreement between you and SmarterX with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. You may not assign this Agreement without the prior written consent of SmarterX, but SmarterX may assign or transfer this Agreement, in whole or in part, without restriction. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees. Any information submitted or provided by you to through the SmarterX Services might be publicly accessible. Important and private information should be protected by you. SmarterX is not liable for protection of privacy of electronic mail or other information transferred through the Internet or any other network that you may use.