Last updated February 28, 2023, to incorporate changes in laws and regulations and to update and clarify terms, including terms governing the use of new services.
These Terms of Service (“Terms”) govern the use of the smrtPhone.io website (the “Site”) and smrtPhone’s enterprise communications services, including, but not limited to smrtPhone cloud phone systems, smrtDialer, the smrtPhone mobile apps, smrtPhone for Real Estate, messaging and other services smrtPhone may offer from time to time (“Services”). By accessing, visiting or using Our Website, or by creating an account, accessing or using any of Our Services, or expressing acceptance of these Terms, you agree to be bound by these Terms. Unless otherwise expressly agreed in a written agreement signed by an officer of smrtPhone, these Terms constitute a binding contract for Your use of and access to the Site, the Services, and all components thereof. For purposes of these Terms, “You,” “Your,” and “Customer” shall refer to you or your organization, as smrtPhone’s customer; “Your Users” means all users who access or use the Services through Your account; and “We,” “Us,” “Our,” and “smrtPhone” means smrtStudio Global, Inc., a Delaware corporation.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT VISIT OR USE OUR SITE OR USE THE SERVICES. BY USING OUR WEBSITE OR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THE SAME.
You affirm that You are 18 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. If You are under 18 years of age, then please do not use Our Site or Our Services. If You are entering these Terms or establishing an account on behalf of any entity, You represent and warrant that You are a duly-authorized employee of that entity with the power to bind that entity to these Terms.
Capitalized terms shall have the meanings attributed to them in these Terms. Unless context clearly requires otherwise, the singular of any term includes the plural and vice versa, and terms of any gender include all other genders.
smrtPhone may amend these Terms, any posted policies referenced herein, and any pricing plans which may be posted on the Site from time-to-time. All amended terms automatically take effect on the sooner of a) the day You use the Service after the posting of such modified Terms, policies or pricing plans; or b) 10 days after such changes are initially posted on the Site. Your use of the Site or Services following the effective date of any modifications to the Terms will constitute Your acceptance of the Terms, as modified. You agree that notice on the Site of modifications is adequate notice.
- Customer shall create an account through Our online portal accessible through the Site at https://phone.smrt.studio (the “Portal”) and shall order Services, maintain current credit card information or alternative payment method information and take such other actions as required by prompts or instructions within the Portal and by these Terms with respect to Customer’s account. Any Service or pricing plans ordered through the Portal are subject to these Terms and, together with these Terms and any policies or other documents incorporated herein, constitute the contract between You and smrtPhone.
- You are allowed to create two types of user accounts under Your smrtPhone Service:
- “User” means an employee, consultant or contractor who is authorized by You to use Your smrtPhone account. The number of Users who are permitted to use the Services under Your account based upon the Services You ordered through the Portal.
- “Administrator” means a User authorized to act on behalf of You, who is responsible for the administration and management of Your smrtPhone account.
“Users” and “Administrators” must comply all of Customer’s obligations and all restrictions or prohibitions regarding the use of the Services, and with such other specific obligations as set forth in the Sections below.
- Services Offered by smrtPhone
(a) smrtPhone provides Customers with the ability to make, receive and forward voice calls using a phone number provided by smrtPhone (a “smrtPhone Phone Number”) and/or a smrtPhone application (an “Application”). smrtPhone also offers the ability to send and receive SMS messages. smrtPhone may add, discontinue or modify the Services it offers from time to time, in its sole discretion.
(b) smrtPhone is not a “dial-tone” provider and is not a replacement for any phone lines, whether wired, wireless or Internet based. The smrtPhone Service allows You to place outgoing calls (national and international), but selected numbers and services may not be reachable through the smrtPhone Service, and smrtPhone does not guarantee that all numbers available worldwide can be called from the smrtPhone Service. In particular, the smrtPhone Service does not support any emergency calls to any type of emergency call taker, including hospitals, law enforcement agencies, medical care unit or any type of emergency services of any kind. Emergency calls (including calls to 911) must be made using Your local phone service provider (fixed or mobile). It is Your responsibility to inform Your Users that it is not possible to support or carry emergency calls using the smrtPhone Service.
- Because the smrtPhone Services rely upon Your third-party telephone service, any limitations in that service may also limit the manner in which You can use the smrtPhone Service. smrtPhone is not responsible, and shall not be liable, for any restrictions, limitations or other aspects of Your third-party telephone services.
- By connecting to Our Services with any third-party service, You give Us permission to access and use Your information from the third-party service as permitted by that third-party service, to present the information stored in that third-party service to better display such information in Your smrtPhone account or in various screens or displays made available through the Services (including without limitation, caller or called party information in contact lists or on the dialer to display inbound or outbound calls), and to store your log-in credentials for that third-party service. You agree that You will obtain any necessary consents or authorizations from Your third-party service provider to allow Us to access, present and store the information described herein, and will otherwise comply with all applicable service terms imposed by the third-party service provider.
- The Service is not available to any User who has been removed from the Service by Us. Such removal may be temporary or permanent, in Our discretion. If We have barred one of Your Users, We will notify You in writing of that determination. If You thereafter permit a barred User to use the Service, it will be a material breach of these Terms.
- smrtPhone will not be bound by any representation of any employee, agent or distributor that is contrary to these Terms or the terms of the applicable subscription plan posted on Our Site.
- Quality and maintenance
(a) The Services rely on third-party networks (including without limitation, the Internet and the public switched telephone network) and devices, and are provided on an “as is,” “as available,” “reasonable efforts” basis. Without limiting the generality of the foregoing, smrtPhone cannot guarantee that any Service will always function without disruptions, delay or other imperfections, that all calls or messages placed through the Services will be completed as intended, that Internet or any other network will not experience outages that make the Services unavailable, or that network issues (including interference to wireless networks) may not cause the delivery of communications to be delayed or incomplete. Except as otherwise expressly stated in these Terms, smrtPhone will not be liable to You, any of Your Users, or any third party with whom You communicate using the Services for any Service outages, disruptions, delays or other failures of the Services to meet any party’s expectations.
(b) smrtPhone may, in its sole and absolute discretion, change technical features in order to keep pace with prevailing industry standards or technological developments or to comply with any applicable laws. smrtPhone may also determine, in its sole discretion and from time to time, that it is necessary or desirable to repair, improve, and/or upgrade the smrtPhone Service and this may require us to restrict, limit, suspend, interfere and/or interrupt the Service at any time at Our sole discretion. smrtPhone will use commercially reasonable efforts to post notice on the Site of planned outages to accommodate changes, repairs, improvements, upgrades or maintenance to the Services.
- Limited License
(a) smrtPhone grants You a limited, revocable, non-exclusive, non-transferable license to use the Services (which license includes a limited right to use, display and perform any software included with or in the Services) ordered through Your account, for Your own business or enterprise use, subject to the other terms of these Terms. The license granted hereunder does not permit You to resell any Services without prior written permission from smrtPhone, which permission may be withheld in smrtPhone’s sole and absolute discretion and which, if granted, may be subject to such additional conditions as smrtPhone may require.
(b) In addition to the prohibitions on use of the Services set forth in Section 5 hereof, the following activities are prohibited under the limited license granted herein, and You may not:
- modify, reverse engineer, decompile or disassemble any part of any Service;
- (ii) copy, adapt, alter, modify, translate, or create derivative works of the Service without written authorization of smrtPhone, which authorization may be withheld in smrtPhone’s sole and absolute discretion;
- permit any individuals other than Your authorized Users and Administrators to use the Service, including but not limited to shared use via a network connection, except under the terms of these Terms;
- rent, lease, loan, sublicense, distribute, or otherwise transfer rights to the Service; and/or
- circumvent or disable any technological features or measures in any Service for protection of intellectual property rights.
In the event of any use of the Services or any component thereof that is not authorized by the limited license granted under this Section 4, We shall have the right to immediately suspend Services to Your account, and may, in Our discretion, terminate the license granted to Your or any of Your Users.
- Use of the Services; Acceptable Use
- In addition to Your other obligations under these Terms, You are responsible for the acts and omissions of anyone using Your smrtPhone account, whether or not such person is a User as defined herein, and You and all such persons are responsible and liable to smrtPhone for any use of smrtPhone Services, whether by website or mobile device. You shall immediately notify smrtPhone, which notice may be made by email to firstname.lastname@example.org, of any fraudulent or unauthorized access to or use of Your account of which You become aware. Without limiting the generality of the foregoing, You remain responsible for all charges associated with the use of Services under Your account, regardless of whether or not such use was authorized by You or was due to fraud.
- You agree not to access, copy, or otherwise use smrtPhone Services, the Site or the Portal unless such use is authorized by these Terms or otherwise authorized by Us in writing.
- You agree that any information You provide to smrtPhone is complete and accurate.
- You will not use the smrtPhone Services in any illegal, abusive, interfering or otherwise unacceptable or inappropriate manner, including without limitation:
(i) to violate any applicable law, regulation, judicial or administrative order, or other published policy (including those relating to the recording of telephone calls telemarketing, and the sending of text or SMS messages);
(ii) to violate or infringe on intellectual property, privacy rights, or other rights of another;
(iii) to violate any agreement, rules or policies that govern the use of Your mobile device or Your third-party services used in conjunction with the Services;
(iv) to transmit any content that is illegal, abusive, harassing, racist, hateful, or, in Our sole discretion, objectionable;
(v) to transmit sexually explicit, pornographic, obscene, or other content which, in Our sole discretion, We find objectionable;
(vi) to sell, trade, resell or otherwise exploit for any unauthorized commercial purpose or transfer any smrtPhone account;
(vii) to stalk, harass, or harm another individual;
(viii) to impersonate another, misrepresent or falsely identify Yourself;
(ix) to violate any applicable third-party policies or requirements that smrtPhone has communicated to You;
(x) to engage in fraudulent activity with respect to third parties or otherwise using Your account to bypass phone identification systems;
(xi) to engage in spamming or other unsolicited advertising, marketing or other activities in connection with any unsolicited or harassing messages (commercial or otherwise), including but not limited to unsolicited or unwanted phone calls or voice mails or text messages;
(xii) to engage in unauthorized or unlawful commercial activities and/or sales except in strict accordance with law, such as advertising, solicitations, contests, sweepstakes, barter, pyramid schemes, unsolicited marketing or other activities, including any activities that violate anti-spam laws and regulations including the CAN SPAM Act of 2003, the TCPA Rules (as defined below), and the Do-Not-Call Registry (or any similar or analogous anti-spam, data protection, or privacy legislation in any other jurisdiction);
- to use any robot, spider, other automatic device, or manual process to monitor, copy, or “scrape” web pages or the content contained in the Site or for any other unauthorized purpose without Our prior written consent;
- to use any device, software, or routine to interfere or attempt to interfere with the proper working of the Services;
- to take any action that uses unreasonably large amounts of bandwidth or otherwise imposes an unreasonable or disproportionately large burden on the Services, including any of Our hardware and software infrastructure, or upon the networks, facilities or services of any of Our vendors or suppliers;
- use the Services for any purpose other than those that are for your legitimate internal business purposes;
- to use the Services in a manner that violates applicable industry standards, third-party policies (including all of the applicable guidelines published by the CTIA or the Mobile Marketing Association), or any other accepted industry associations, carrier guidelines (or any similar or analogous industry standards, third-party policies or requirements in any other jurisdiction);
- to access or use the personal or confidential information of any third party without their permission, or attempt to do so;
- to use the Services for purposes of competitive analysis or the development or provision of a competing service or product;
- to mislead recipients of any call, text, email or other message as to Customer’s identity, including without limitation by creating a false caller ID (e.g., ID spoofing), forging addresses or headers, or fraudulently undertaking other technical measures to misrepresent the origin or identity of the sender or caller;
- to perform auto-dialing or “predictive dialing” in a manner that violates applicable industry standards, the TCPA, the TCPA Rules, and the Do-Not-Call Registry (or any similar or analogous anti-spam, data protection, or privacy legislation in any other jurisdiction);
(xxii) to impersonate another person, act as another entity without authorization, or create multiple accounts;
- to upload pictures, data, audio or visual files, or any other content that is excessive in size, as determined by us in Our sole discretion;
- to attempt to circumvent the User limitations of Your service plan or otherwise avoid payment for the Services You use; or
(xxv) to attempt to circumvent any of the restrictions set forth above or contained elsewhere in these Terms.
(e) You are solely responsible for complying by all applicable laws in your use of the Service, including without limitation any relating to the sending of text or SMS messages through the Service, and including all applicable regulations, orders and policies of any regulatory agency with jurisdiction over or regulatory regimes applicable to the Services or the conduct of Your business, including without limitation, the following:
Federal Trade Commission, http://www.ftc.gov
Federal Communications Commission, http://www.fcc.gov
(f) Customers subscribing to text or SMS Services are responsible for registering their campaigns in accordance with prevailing industry practices. smrtPhone may provide links within the Portal to permit Customers to complete the registration process. You and agree acknowledge that increased message filtering and fees may apply to messages that are sent without registration and that unregistered messaging via long code numbers may be blocked or may not be supported or delivered. smrtPhone shall have no liability to You for any failure of You to register in accordance with then-prevailing wireless industry practices and policies.
(g) Without limiting the generality of any other provision hereof, You acknowledge that the Telephone Consumer Protection Act of 1991 (“TCPA”) together with final rules and regulations (collectively, “TCPA Rules”), generally restrict telemarketing and the use of automated phone equipment and limit the use of pre-recorded voice messages, automatic dialing, SMS and fax use. You understand and agree that You are solely responsible for complying with, and ensuring the compliance of Your Users with, the TCPA Rules and any other state, federal or local laws, rules and regulations, in effect from time to time, governing electronic communications between You and consumers to which You initiate calls or text messages through the Services. Without limiting the foregoing, You represent and warrant that the consumers have given prior express consent or otherwise opted-in to the receipt of such calls or messages as required by any applicable law or regulation. You agree that You will include clear opt-out/unsubscribe information on Your calls or messages when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, to the extent applicable. You agree that will not make unwanted, unsolicited sales calls and that will honor the National Do Not Call Registry. You further agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on Your own DNC accounts list and You further agree that You will not initiate any subsequent messages or calls to any individuals who after they request DNC status. smrtPhone is not providing and will not provide You with any legal advice or interpret any laws, rules, or regulations. The information herein is provided merely as a courtesy and is not intended to replace Your responsibility to familiarize yourself with and abide by the legal requirements pertaining to Your or Your Users’ use of the Services to initiate calls or messages.
(h) You and Your Administrators may appoint additional Administrators of Your smrtPhone account, and each Administrator shall be required to accept and agree to these Terms. You or Your Administrator(s) shall also notify all Users under Your account of these Terms and of Your obligations hereunder. Non-compliance with any provision hereof by any Administrator or User shall be deemed a breach by You of these Terms.
(i) You understand that all information, data, text, software, music, sound, photographs, graphics, audio, video, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that You, and not smrtPhone, are entirely responsible for all Content that You upload, post, email, transmit or otherwise make available via the Service. smrtPhone does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will smrtPhone be liable in any way for any Content, 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 posted, emailed, transmitted or otherwise made available via the Service. smrtPhone is solely a facilitator of the voice and message communications made using the Services and has no control over individual calls and messages that are transmitted through smrtPhone. smrtPhone therefore has no responsibility or liability with respect to the Content of any individual call or message. Notwithstanding the foregoing, smrtPhone (i) may (but shall not be obligated to) use programmatic means to filter (pre-screen) Your messages and block Your campaigns or account due to message keywords that smrtPhone has determined, in its sole discretion, may violate an applicable, rule, regulation, or law; and (ii) will cooperate with law enforcement to access to Your calls, messages and any Content transmitted by You using the Service in accordance with applicable law.
(j) You shall inform each User that You and Your Administrators may obtain and use their personal and traffic data on the smrtPhone Numbers assigned to such User. You acknowledge and agree that You shall process (and shall ensure that Your Administrators shall process) such personal data in accordance with all applicable data protection laws. You represent and warrant to keep all such personal and traffic data confidential and use and protect it strictly in compliance with applicable data protection laws.
(k) Under no circumstances shall You send (or allow Your Administrators and/or Users to send) or procure the sending of any communications, including email messages on behalf of, or purporting to originate on behalf of, smrtPhone.
- smrtPhone Phone Numbers
(a) Provision of smrtPhone Numbers is subject to applicable numbering rules and regulatory practices, which may change or be amended from time to time. smrtPhone reserves the right to change the terms related to smrtPhone Numbers accordingly, including without limitation to impose or amend local residency requirements and/or to require the provision of further user information for continued access to defined smrtPhone Numbers.
(b) You may purchase and allocate smrtPhone Numbers to your Account subject to compliance with the allocation requirements displayed upon subscription to the smrtPhone Numbers. In particular, You are responsible for compliance with any requirements related to the residence and/or the location of Your Company.
(c) Phone Number costs vary from country to country. If You wish for Us to procure or purchase phone numbers on Your behalf, You may request such numbers via the Portal. We will provide You with a quote setting forth available numbers and the pricing for such numbers, which quote will specify the time period for which the stated pricing will remain in effect. If You accept the quote by selecting and ordering one or more numbers within the specified time period, then and only then, We will procure the requested number(s), which will thereafter become smrtPhone Numbers for purposes of these Terms. Your account will be charged for all costs associated with each smrtPhone Number, which will be billed on a monthly basis to the credit card associated with Your account.
(d). We rely on the wholesalers and vendors We use to provide their services in a manner consistent with the TRACED Act and the implementing regulations thereunder, including validating calls in accordance with the STIR/SHAKEN framework. smrtPhone shall have no liability to Customer, any User or any calling or called party for the level of attestation assigned by smrtPhone or its wholesalers or vendors to calls to or from Customer or any User, nor shall smrtPhone be liable for the refusal of any other carrier or service provider to validate, transmit or terminate any call based on such carrier’s or service provider’s assessment of such calls or the attestation level assigned thereto.
(f) Notwithstanding Our Refund Policy, as posted at https://www.smrtphone.io/refund-policy/ from time to time or any provision hereof, upon Customer request and in Our sole discretion, We may refund the prepaid charges for the first month of Service for up to 10 smrtPhone Numbers per month (in total) that satisfy both of the following conditions:
- (i) Each affected smrtPhone Number has been used to initiate fewer than 10 calls and/or text messages in total for that smrtPhone Number; and
- (ii) Each affected smrtPhone Number has been purchased no more than 7 days prior to Customer’s request for a refund.
- Pricing, Billing and Refund Policy
(a) All charges for the Services posted or quoted by Us are exclusive of any Taxes (as defined below). Except for taxes based on smrtPhone’s net income or for taxes which Customer possesses an exemption certificate, Customer shall be responsible for payment of all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, or other taxes, duties, fees, charges or surcharges (including, but not limited to Universal Service Fund (“USF”) and other regulatory fees), however designated, imposed or based upon the sale or use of the Services (collectively “Taxes”), and all Taxes applicable to Customer’s Services shall be billed to Customer’s credit card on file in accordance with this Section 7. If Customer is entitled to an exemption from any Taxes, Customer is responsible for presenting smrtPhone with a valid exemption certificate (in a form reasonably acceptable to smrtPhone). We will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any Service billed by Us to Customer following Our receipt of such exemption certificate.
(b) Upon ordering any Service, You will provide smrtPhone with a valid credit card number and billing information. You authorize smrtPhone to charge and/or place a hold on Your credit card with respect to any unpaid charges related to the Services. You authorize the issuer of the credit card to pay any amounts described herein (including without limitation all Taxes applicable to Your Service charges) without requiring a signed receipt, and You agree that Your acceptance of these Terms is authorization to the issuer of the credit card to pay all such amounts.
(c) You authorize smrtPhone and/or any other company acting as billing agent for smrtPhone to charge Your credit card on a recurring monthly basis on the monthly anniversary of the Your placement of the order for the Services in the Portal, and to continue to attempt to charge and/or, if We so elect, place holds with respect to all sums described herein, or any portion thereof, to Your credit card until such amounts are paid in full, subject to smrtPhone’s rights of suspension and termination and other remedies for non-payment set forth herein. Notwithstanding the foregoing, smrtPhone is under no obligation to continue to attempt to charge Your credit card prior to exercising any of its other remedies hereunder.
(d) You will provide smrtPhone with updated credit card information upon smrtPhone’s request and any time the information You previously provided is no longer valid. You are solely responsible for maintaining and updating the credit card information. smrtPhone is not liable for any penalties or administrative fees assessed by Your card issuer for insufficient funds or other charges incurred by You as a result of such attempts to charge, and/or place holds on, Your credit card. If You mistakenly provide a debit card number, instead of a credit card number, You authorize all charges described herein to be applied to such debit card unless and until You provide a credit card number.
(e) Billing and charging of Your credit card on file shall be in accordance with the frequency stated in the plan You selected via the Portal. Except as provided elsewhere herein or particular terms offered by Us with respect to a specific Service plan, monthly services and certain other charges, plus Taxes thereon, are billed and charged one month in advance, and there is no proration of such charges if Service is terminated on other than the last day of Your billing cycle. For annual plans, You will be billed in advance for the first year’s subscription fees, plus Taxes therein, prior to the commencement of Service and Your billing cycle thereafter will be each anniversary of the initial payment date. If any new User or smrtPhone Number is added during the billing cycle, an amount equal to prorated charge for such new User(s) or number(s) for the remaining period in the billing cycle will be charged to Your credit card on the file, and You will be charged for such User(s) or number(s) in future billing cycles in accordance with Your plan. If You cancel an annual plan subscription during the billing cycle, Your subscription will not be renewed after the end of current billing cycle; however, You will not receive a refund of any amounts prepaid for the then-current billing cycle. No refund will be given for the cancellation, removal or discontinuance of any User or smrtPhone Number during any ongoing billing cycle.
(e) Usage based charges, such as for airtime or other measured usage (“Chargeable Time”), plus all applicable Taxes thereon, shall be charged to Your credit card on file monthly in arrears, unless otherwise stated by Us in writing in a specific Service plan. CHARGEABLE TIME IS BILLED IN FULL-MINUTE INCREMENTS, AND ACTUAL AIRTIME AND USAGE ARE ROUNDED UP TO THE NEXT FULL-MINUTE INCREMENT AT THE END OF EACH CALL FOR BILLING PURPOSES. IF PAY PER MINUTE BILLING APPLIES TO THE SERVICES YOU ORERED, WE CHARGE A FULL MINUTE OF AIRTIME USAGE FOR EVERY FRACTION OF THE LAST MINUTE OF AIRTIME USED ON EACH CALL.
(f) Chargeable Time begins for outgoing calls when a connection to the number You are trying to reach is established and recorded in Our system. For customers that subscribe to inbound calling capability, Chargeable Time begins for incoming calls when a signal connection from the caller is established with Our facilities. Chargeable Time ends after the call has ended, either by You, the person You are speaking with or due to a technical malfunction, but not until Your device’s signal of call disconnect is received by us and the call disconnect signal has been confirmed.
(g) All outgoing calls for which We receive answer supervision, including ring time, shall incur a minimum of one minute airtime charge. Answer supervision is generally received when a call is answered; however, answer supervision may also be generated by voicemail systems, private branch exchanges, and interexchange switching equipment. Chargeable Time may include time for us to recognize that only one party has disconnected from the call, time to clear the channels in use, and ring time. Chargeable Time may also occur from other uses of Our facilities, including by way of example, voicemail deposits and retrievals, and call transfers.
(h) If You select a plan that includes a predetermined allotment of Services (for example, a predetermined amount of airtime or messages), unless otherwise specifically provided as a part of such plan, any unused allotment of Services from one billing cycle will not carry over to any other billing cycle.
(i) If We elect to issue You an invoice, We may do so in any format as We determine from time to time. If You request an invoice or additional copies of any invoice(s), or detailed information about Your usage of Services (including without limitation, call detail records), additional charges may apply as We may establish from time to time. Our decision to issue invoices shall not limit Our rights hereunder to automatically charge Your credit card on file on the date specified in Section 7(c).
(j) smrtPhone may change the rates of outgoing calls, incoming calls, text messages, MMS messages or fax messages at any time without notice to You by posting such change at Call Rates and SMS Rates. The new rate will apply to Your next call, text or fax, as the case may be, after the new rates have been published. Please check the latest rates before You use the applicable Service. If You do not accept the new rates, do not use the Service.
(k) You agree to pay for all smrtPhone Services without any right of set-off or deduction, except as may be explicitly set forth in Your service plan. You also remain responsible for paying all non-usage based recurring Service fees if Your Service is suspended for nonpayment or other grounds set forth in Section 20(d).
(l) You agree that for amounts not paid by the due date, We may charge, and You agree to pay, a late payment fee equal to the lesser of 10% of the past due amounts or the maximum allowed by law. In the event You fail to pay billed charges when due and it becomes necessary for us to refer Your account(s) to a third party for collection, or We resort to any other remedy available to Us to collect any amounts that You owe, You will be liable for all costs associated with Our collection efforts, including without limitation, attorneys’ fees and court costs.
(m) Using smrtPhone will not incur charges to Your personal voice plan (cellular or otherwise) unless You redirect calls to a mobile located outside the United States. In that case, Your operator will charge its standard rates for roaming on incoming calls. smrtPhone does not establish, and undertakes no obligation to inform You of, such rates.
(n) If You use the smrtPhone Service from a device using a mobile data connection, incoming and outgoing calls will use a part of the data allowance of Your data plan, as established by Your mobile services operator. If You use a mobile data connection outside of Your home country, Your operator may charge You roaming fees.
(o) Separate charges are applicable for incoming calls, and may be applicable for incoming texts, if so stated in Your Service plan.
(p) SMS rates mentioned on the Pricing page at the Site are for single segment, unless otherwise stated under a particular plan. 1 Segment = 160 characters. For example, if You send a 200 characters long message, it will cost You 2 X SMS Cost as 200 characters will be counted as 2 segments.
(q) All refund related requests will be governed by Our publicly available Refund Policy.
- Fair Use Policy
- smrtPhone may currently or in the future offer plans on an “unlimited use” and/or “unlimited minutes” basis (“Unlimited Plans”). Without limiting the applicability of any other provisions of these Terms, all Unlimited Plans:
- May only be used for Customer’s normal business purposes and may not be used for personal or residential use, nor may any Service under an Unlimited Plan be made available for any persons other than Customer’s employees in the performance of their duties;
- Are or will be provided only for live dialog or individualized text conversations between two individuals;
- May not be used for any of the following prohibited uses:
- Trunking or forwarding Your smrtPhone number to another phone number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system.
- Auto- or predictive dialing in a manner that violates applicable industry standards, the TCPA, the TCPA Rules, and the Do-Not-Call Registry (or any similar or analogous anti-spam, data protection, or privacy legislation in any other jurisdiction).
(b) In addition, no Unlimited Plan may be used for bulk call-in lines (including by way of example and not limitation, customer support or sales call centers handling over hundreds of simultaneous calls, sports-line numbers, etc.).
(c) If Your account reaches the above fair use limit under any Unlimited Plan, You will receive an alert message and smrtPhone thereafter may, in its sole discretion, restrict call or message usage or take any other call limit measures in order to prevent system overload.
(d) In the event that Customer determines that it cannot comply with the “Fair Use Policy” set forth in this Section 8 or any other restrictions in an Unlimited Plan subscribed to by Customer, Customer may upgrade to a custom enterprise plan without penalty, which can be obtained by contacting email@example.com.
(e) smrtPhone reserves the right upon prior notice to disconnect or suspend Your Service if smrtPhone determines that Your use of the Service violates any point of the Fair Use Policy above.
- Portability and Reclaiming Numbers
- Phone numbers for specific countries only, like the United States, UK and Australia can be ported in smrtPhone. We will investigate the possibility to manually port a number, after assessing the implied cost. Any telephone number ported into Your account will, after the completion of such, port be deemed a smrtPhone Number.
(b) You may port Your smrtPhone Number to another provider as long as You have subscribed to a paid plan (i.e., You are not using the free trial). If You wish to port Your smrtPhone Number to another service, You should request Your new service provider to take responsibility for this process. smrtPhone will not charge You for porting Your smrtPhone Number out of the smrtPhone Service, but Your new service provider may charge You a fee for the portability.
- Protection of Data
(a) smrtPhone will maintain appropriate and reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity Your data.
- The Services may be provided using equipment or facilities located in the European Union or the United States.
- Responsibility for Call Recording
Please note that while smrtPhone offers the option for You to record calls, if You choose to use this functionality of the Service, then You must comply with all state and federal laws, regulations and rules prior to recording any telephone calls and You expressly warrant and represent to smrtPhone that You shall comply at all times. We make no representations or warranties with respect to call recording. You represent, warrant and covenant that You shall always secure consent of all parties to any call made using the Services before recording. You acknowledge that the foregoing representation, warranty and covenant is a material inducement to smrtPhone providing You with access to call recording functionality and You further agree to indemnify, defend and hold smrtPhone and its officers, directors, owners, employees, agents, consultants and vendors harmless from and against any and all liabilities, losses, claims, damages, causes of action, costs and expenses (including attorneys’ fees) that may be incurred by smrtPhone arising out of or related to Your acts or omissions in connection with call recordings, whether such claims arise under contract, tort, statute or other legal theory.
- Proprietary Rights
- All right, title and interest in the Service and any content contained herein is the exclusive property of smrtPhone, except as otherwise stated. Unless otherwise specified, this Service is for Your legitimate business use only.
- You may print, copy and download any information or portion of the Site for Your use only.
- If You copy or download any information or software from this Site, You agree that You will not remove or obscure any copyright or other notices or legends contained in any such information. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes, in whole or in part, any information, software, products or services obtained from the Service, except for the purposes expressly provided herein, without smrtPhone’s prior written approval.
- All trademarks, trade names, service marks and logos displayed on the Site are proprietary to smrtPhone. Your use of any marks on the Site in any manner other than as authorized in these Terms, or as authorized in writing by smrtPhone, is strictly prohibited.
- Content License
You grant smrtPhone a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise any and all rights that You have, as the copyright owner or otherwise, in any content, ideas, suggestions or feedback that You provide to us.
Except as expressly provided herein, the Services, all components thereof, the Site, and all materials on smrtPhone’s Site are provided “as is”. smrtPhone makes no warranties, expressed or implied, and hereby disclaims and negates all such warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, smrtPhone does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Site, obtained through the Services, or on any sites linked to the Site. smrtPhone does not warrant that any of the materials on its Site are accurate, complete, or current. Since the smrtPhone Service is dependent on the IP network, the availability of an adequate power supply, and correct equipment configuration, We do not guarantee that any portion of the Service will be continuous or error-free. You also acknowledge and understand that We cannot guarantee that IP based communications are completely secure. Therefore, the smrtPhone Service should not be used with any third-party services or devices such as monitored burglar alarms, monitored fire alarms, and/or medical monitoring systems or devices.
- Limitations of Liability
- YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY (1) SUSPENSION OR LOSS OF THE SERVICES (2) USE OF THE SERVICES, (3) INTERRUPTION OF THE SERVICES OR INTERRUPTION OF YOUR BUSINESS, (4) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO OUR SITE OR SERVICES OR DELAYS OR ACCESS INTERRUPTIONS YOU EXPERIENCE IN RELATION TO THE SERVICES; (5) LOSS OR LIABILITY RESULTING FROM ACTS OF OR EVENTS BEYOND OUR CONTROL INCLUDING , BUT NOT LIMITED TO ANY ERRORS OR TECHNICAL ISSUES OF ANY DOMAIN NAME REGISTRY OR OTHER THIRD PARTY PROVIDER, (6) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (7) OR LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD.
- YOU ALSO AGREE THAT WE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) OR FOR ANY FINANCIAL OR ECONOMIC LOSS OR FOR LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL OR SIMILAR LOSSES, LOSS OF ANTICIPATED SAVINGS OR LOSS OR CORRUPTION OF DATA OR INFORMATION, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- NO EVENT WILL THE COLLECTIVE LIABILITY OF smrtPhone OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, ATTORNEYS, AND BUSINESS PARTNERS TO ANY PARTY, REGARDLESS OF THE TYPE OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT THAT YOU HAVE PAID TO smrtPhone IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR ACCRUED.
- Any cause of action You may have with respect to Your use of the Site or the Service must be commenced within one (1) year after the claim or cause of action arises, in accordance with the arbitration provisions hereof.
- Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to You.
- Assumption of Risk
- You use the Internet, including the Site, the Portal, and/or if accessed through the Service, solely at Your own risk and subject to all applicable local, state, national, and international laws and regulations. The confidentiality of any communication or material transmitted to/from a Service over the Internet cannot be guaranteed. Accordingly, smrtPhone is not responsible for the security of any information transmitted via the Internet, the accuracy of the information contained on the Site, or for the consequences of any reliance on such information. smrtPhone shall have no liability for interruptions or omissions in Internet, network or hosting services. You assume the sole and complete risk of using the Site and the Service.
- You further agree that smrtPhone shall have no responsibility or liability for any other websites that may be linked or accessed via the Site or the Portal. The inclusion of any link on the Site, the Portal or in any Service does not imply endorsement by smrtPhone of the linked website. Any material downloaded or otherwise obtained through the use of the Site, the Portal or the Service is done at Your own discretion and risk. You will be solely responsible for any damage to Your computer system, mobile phone or any other device, and/or loss of data, that results from the download of any such material.
- Your Responsibility to Protect Data and Password
It is Your responsibility to protect Your personal data and maintain the confidentiality of all User and Administrator information, usernames and passwords associated or used with Your account. You are also responsible for immediately notifying smrtPhone of any unauthorized use of Your account, or breach of Your account information or password. smrtPhone will not be liable for any loss that You may incur as a result of someone else using any username or password associated with Your account, either with or without Your knowledge. To the extent allowable by law, You shall be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney’s fees for Your failure to safeguard user and password information and/or timely notify smrtPhone about unauthorized use of Your account or breach of Your account information or password.
- Enforcing Security
Actual or attempted unauthorized use of any of the Site may result in criminal and/or civil prosecution. We reserve the right to view, monitor, and record activity on the Site without notice or further permission from You, to the fullest extent permitted by applicable law; provided that We will be under no obligation to do so. This right extends to Our review of message content and details pertaining to claimed violations of these Terms. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the Site.
You will indemnify, defend, and hold smrtPhone, its affiliates, officers, directors, employees, agents, legal representatives, licensors, subsidiaries, joint ventures and suppliers, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Your breach of these Terms, Your violation of any law, or Your violation of the rights of a third party.
- Termination of Agreement; Suspension
- smrtPhone may terminate Your account and Your right to use any or all Services (a) with or without cause at any time, upon no less than thirty (30) days’ prior written notice; or (b) if You fail to comply with any provision of these Terms and do not cure such failure within ten (10) days following notice from smrtPhone.
- You may terminate these Terms at any time directly from Your smrtPhone account. Such termination of these Terms becomes effective at the end of the then-current billing cycle.
- Upon termination for any reason, Your right to use or access the Services will immediately cease. Your obligation to pay accrued charges and fees shall survive any termination of these Terms. In the event of any termination of Your account, the provision of these Terms which by their nature should survive the termination thereof, including without limitation the provisions set forth in Section 7 (Pricing, Billing and Refund Policy) and Sections 14, 15, 21 through 26 and 28 through 32, shall survive such termination, and You agree to be bound by those terms.
- smrtPhone may immediately suspend any or all Services to Your Account, with or without notice, in its sole discretion and without liability, in the event that (i) You fail to make any payment when due; (ii) Your credit card on file declines any charges when due; (iii) You violate any of the provisions of these Terms governing use of the Services, limitations or restrictions on the Your license, or the intellectual property rights of third parties; (iv) smrtPhone believes that You, any User under Your account or any person accessing Your account has used any Services in violation of any applicable law, for any fraudulent or unlawful purpose, or in a manner that may damage the services, networks or facilities of smrtPhone or any of its vendors, suppliers or other customers.
- All disputes arising out of or related to the Site, the Services or Your account, including without limitation those regarding the formation, interpretation, breach or termination of the agreement between You and smrtPhone, or any issue regarding whether a dispute is subject to arbitration hereunder, that cannot be settled by good faith negotiation between the parties within a reasonable period of time, will be conclusively determined by a final and binding arbitration proceeding to take place in the County of New Castle in the State of Delaware. Such proceeding will be conducted in English and administered by JAMS pursuant to the JAMS Comprehensive Arbitration Rules and Procedures then in effect, or in the event one of the parties is located outside of the United States, pursuant to the JAMS International Arbitration Rules then in effect, before a panel of one arbitrator chosen in accordance with such rules. The arbitrator will not award punitive or exemplary damages, and will not have the authority to limit, expand or otherwise modify these Terms. The ruling by the arbitrator may be entered in any court having jurisdiction over the parties or any of their assets. The parties will evenly split the cost of the arbitrator’s fees, but each party will bear their own attorneys’ fees and other costs associated with the arbitration. The parties agree that this arbitration provision may be enforced by injunction or other equitable order, and no bond or security of any kind will be required with respect to any such injunction or order. The parties, their representatives, other participants and the arbitrator will hold the existence, content and result of arbitration in confidence.
- Notwithstanding Section 21(a), in the event of Customer’s violation of law or breach of the provisions of Sections 5 and 8, You agree that such violation or breach may cause irreparable harm to smrtPhone, which harm may not be adequately compensated by monetary damages. Therefore, in addition to smrtPhone’s other remedies hereunder, smrtPhone may forego arbitration and seek immediate injunctive relief from any court of competent jurisdiction, without the necessity of posting bond.
- Governing Law
Any claim arising out of or relating to the Site, the Services or these Terms shall be governed by the laws of the state of Delaware without regard to its conflict of law provisions.
- Waiver of Jury Trial
Each of the parties waives its rights to a trial by jury of all claims or causes of action (including counterclaims) related to or arising out of this agreement brought by either party against the other. This waiver will apply to any subsequent amendments of or modifications to these Terms.
- No Class Actions
All claims between the parties related to these Terms will be resolved individually pursuant to Section 21 hereof, and You will not consolidate or seek class treatment for any claim arising out of these Terms or with respect to the Services or the Site.
If for any reason a court of competent jurisdiction finds any provision of this agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of these Terms, and the remainder of these Terms shall continue in full force and effect. A printed version of these Terms, including the then-current Terms, shall be admissible in judicial or administrative proceedings.
- Waiver of Compliance of these Terms
(a) Even if We do not require strict compliance with these Terms in each instance, You will be obligated to comply with these Terms. Our failure to enforce, at any time, any of the provisions, conditions or requirements of these Terms, or the failure to require, at any time, performance by You of any of the provisions of these Terms, will in no way waive Your obligation to comply with any of the provisions of these Terms or Our ability to enforce each and every such provision as written.
(b) Any and all waivers by smrtPhone of any provision, condition or requirement of these Terms will only be effective against smrtPhone if it is in writing and signed by an authorized officer of smrtPhone, and any such written waiver will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
- Assignment and Delegation
You may not assign or delegate any rights or obligations under these Terms, without Our prior written consent, which may be granted or withheld in Our discretion. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under these Terms, fully or partially without notice to You. We may also substitute for Us, by way of unilateral novation, effective upon notice to You, any third party that assumes Our rights and obligations under these Terms.
- No Injunctive Relief
In no event shall You seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, exploitation of any advertising or other materials issued in connection therewith, or any acts undertaken by smrtPhone in connection with these Terms, the Site, the Portal or the Services.
- Remedies Cumulative.
All remedies of smrtPhone hereunder are cumulative and the exercise or failure to exercise any remedy hereunder shall not foreclose the exercise of any other remedies by smrtPhone.
- Contact Information
If You have any questions, concerns, or complaints about Our Services or anything found in these Terms or other agreements with us, please contact us by email to firstname.lastname@example.org or by hand delivery or nationally recognized overnight courier to:
smrtStudio Global, Inc
651 N. Broad Street, Suite 206 Middletown DE 19709 United States
- No Third-Party Beneficiaries.
These Terms, and the contract between You and smrtPhone of which these Terms are a part, are solely for the benefit of the parties and their permitted successors and assigns. There are no third-party beneficiaries to these Terms.
Section headings in these Terms are for convenience of reference only and shall not affect the interpretation of any provision hereof.
IF YOU DO NOT AGREE TO THE TERMS STATED ABOVE OR TO ANY CHANGES MADE IN THESE TERMS OF SERVICE, PLEASE EXIT THIS SITE IMMEDIATELY AND DO NOT USE ANY OF OUR SERVICES.