This Agreement, which is made between James E Smith LLC (“we”, “our”, “us”, or “James E Smith LLC”) and the customer (“you”, “your”, or “Customer”), supersedes all proposals or prior agreements, written, oral, or electronic, and all other communication between the parties or their agents. The Customer acknowledges that he or she has not relied on any representation, warranty, collateral contract, or other assurances made by or on behalf of James E Smith LLC outside of this Agreement, or by a reseller, wholesaler, affiliate, agent, or other party. The Customer waives all rights and remedies which, but for this clause, might otherwise be available.
No waiver of the Terms and Conditions contained herein, or amendment to this Agreement shall be binding on James E Smith LLC unless set out in writing, explicitly stating that it is such a waiver or amendment, and duly signed by an Officer of James E Smith LLC.
1 Limitations of E911 Emergency Services
James E Smith LLC’s telecommunication products cannot be used for emergency calling. The Federal Communications Commission requires wireless service providers to connect emergency calls (i.e. 911) to “Public Safety Answering Points” whether the phone user is one of their subscribers or not. James E Smith LLC’s telecommunication products may be software or hardware applications that operates via your mobile or desktop device; the obligation to connect and make emergency calls falls on your devices’ service provider.
2 Service Term
The term of this Agreement (“Term”) begins on the date that you purchase Services or products from James E Smith LLC. The Term extends until either 1) the end of a 30 day subscription period, if you have not signed a separate agreement with James E Smith LLC, or 2) until the end of the Term agreed upon in the initial service or product agreement. At the end of the current Term, the Term will automatically renew, and extend another 30 days, or for a period equal to the initial agreed upon Term, whichever is longer. When you notify James E Smith LLC of your intention to cancel some or all Services, those Services will not renew at the end of the Term. You understand, and agree, that you are responsible for paying for Services through the end of the current Term. The expiration of the Term does not relieve you of your responsibility for paying all Charges you have incurred under this Agreement. All amounts paid to James E Smith LLC, including for credit balances, are non-refundable.
3 Billing, Credit Determination, Charges, and Payment
3.1 Payment At the time of purchase or activation, Customer must provide James E Smith LLC with valid payment information. Further, Customer agrees to proactively notify James E Smith LLC of any change to the payment information, including but not limited to changes in the billing address or expiration date, or to provide new payment information should the previously provided payment information cease to be valid or cease to have sufficient remaining credit for James E Smith LLC to charge for Services.
Customer hereby authorizes James E Smith LLC to use customer’s selected payment method to receive payments on a recurring basis and without any additional notice or consent, for all charges arising from Customer’s purchase, activation, disconnection, and usage of Services under this Agreement. Customer also understands that the total charges may vary from month to month as a result of toll charges, price changes or changes in the structure of pricing, inflation adjustments, or changes in the level or amount of Service requested by the Customer.
James E Smith LLC shall not be liable or responsible for any charges or levies against the Customer for exceeding Customer’s credit limit, insufficient funds, or any other reason, regardless of the date which James E Smith LLC charges the customer’s selected payment method for Services. In all cases, Customer agrees to make available appropriate payment for Services in advance of the time period during which such Services are provided.
3.2 Chargebacks
You hereby agree that under no circumstances will you initiate a chargeback with your Credit Card issuer or other payment method without first sending notice of the disputed charge to James E Smith LLC and working with James E Smith LLC in good faith for no less than fifteen (15) business days to resolve the dispute.
3.3 Late-payment / Non-payment
If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined credit card charges, James E Smith LLC may suspend or terminate the Services and all accrued charges shall be immediately due.
3.4 Billing Disputes
Customer must dispute any charges for the Services in writing within thirty (30) days of the date of the charge by James E Smith LLC or Customer waives any objection and further recourse. Written statements disputing charges must be sent to: support@jamesesmithllc.com
4 Prohibited Uses
Any use of the Services or any other action that causes a disruption in the network integrity of James E Smith LLC or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services at the sole discretion of James E Smith LLC. Customer understands that neither James E Smith LLC nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. Customer agrees that it will NOT use the Services in ways that violate laws (including but not limited to laws prohibiting transmission of unsolicited fax advertisements), infringe the rights of others, or interfere with the users, or services, of the network. Customer agrees and represents that it is purchasing the Services for its own internal use only, and shall not resell, transfer or make a charge for the Services without the advance express written permission of James E Smith LLC. Customer shall not transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Customers further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Any use found to be inconsistent with this restriction will result in termination of the Service.
5 Fraudulent Calls
Customer shall indemnify and hold James E Smith LLC harmless from any and all costs, expenses, damages, claims or actions arising from fraudulent calls of any nature which originate from the Customer’s account.
6 Changes to the Agreement, Services, or Plan
James E Smith LLC may from time to time post a new version of these terms of service on its website at “https://www.jamesesmithllc.com/terms-and-conditions/”. These new terms will become the new Agreement immediately upon posting. James E Smith LLC may not through this clause retroactively alter or amend any term, retroactively alter the rights or responsibilities of the parties, or affect the dispute resolution, remedies, liability, or indemnification of any existing claim or cause of action. You should check our terms periodically and agree that your continued use of our service constitutes your agreement to any updated Agreement.
7 Notices
Notice will be considered received by Customers and such changes will become binding to Customers, on the date the changes are posted to the Web Site (“Change Date”), and no additional notice will be required. If Customer does not send James E Smith LLC notification of their desire to terminate this agreement or uses the Service after the Change Date, Customer is deemed to have accepted and consented to the change of terms and conditions of the Service. If Customer does not consent to the change of service and terminates this agreement, Customer will be responsible for any sums due hereunder.
8 Termination
Customer shall be responsible for the full 30 day service fee for the subscription during which the notice of termination of service is provided to James E Smith LLC. James E Smith LLC reserves the right, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, Customer’s breach of this Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer that adversely affects the Services, James E Smith LLC, James E Smith LLC’s network or other Customers’ use of the Services. James E Smith LLC reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and Customer agrees that James E Smith LLC’s determination is final and binding on Customer.
9 Privacy
James E Smith LLC is committed to respecting a Customer’s privacy. Once Customer chooses to provide personally identifiable information, it will only be used in the context of the Customer’s relationship with James E Smith LLC.
10 Technical Support
James E Smith LLC provides certain technical support depending on a number of factors, including the Services that you are using and problems that you report experiencing. Our support services may be utilized via email for the Services provided under this Agreement. James E Smith LLC cannot provide support for third party products or services, applications, or customer uses of the Services. If during the course of investigating a reported problem, James E Smith LLC suspects, in its sole and absolute discretion, that the problem relates to non-James E Smith LLC products or services, James E Smith LLC may politely inform you that we cannot continue to provide support for the issue. This measure is intended to keep costs low for all customers. James E Smith LLC may change the methods or scope of the technical support services that we offer at any time.
11 INDEMNIFICATION
CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS James E Smith LLC, ITS OFFICERS, DIRECTORS, EMPLOYEES, VENDORS, WHOLESALERS, RESELLERS, AFFILIATES, AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) RELATING TO THE SERVICES UNDER THIS AGREEMENT.
12 DISCLAIMER OF CONSEQUENTIAL DAMAGES
IN NO EVENT, AND UNDER NO THEORY OF LIABILITY, SHALL James E Smith LLC OR ITS VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF James E Smith LLC OR ITS VENDORS OR OTHERWISE.
13 WARRANTY AND LIMITATIONS OF LIABILITY
James E Smith LLC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS.
Without limiting the above, James E Smith LLC explicitly does not warrant that the Service will be without failure, delay, interruption, error, degradation of voice quality, or loss of content, data, or other information. Statements and descriptions concerning the Service, if any, by James E Smith LLC, or James E Smith LLC’s agents, distributors, or resellers are informational ONLY in nature and are NOT given as a warranty of any kind.
Regardless of any statute or law to the contrary, any claim against James E Smith LLC or arising out of or related to use of the Service or the Agreement must be made within 90 days of the event of the claim or 90 days from the termination of service, whichever is earlier, and without regard to the timing of discovery, or be forever barred. James E Smith LLC’s liability is limited to credit, or refund. James E Smith LLC may elect to provide a refund in lieu of credit. In no event shall James E Smith LLC’s total liability hereunder exceed the amounts paid by Customer to James E Smith LLC in the prior twelve (12) months from date of claim.
14 Export Compliance
Customer agrees to comply with U.S. export laws concerning the transmission of technical data and other regulated materials via the Services. Customer agrees to comply with applicable local, state and federal regulations governing the locality in which the Services are used.
15 Phone Numbers and Web Portal Discontinuance
Upon expiration, cancellation, or termination of the Services, Customer shall relinquish and discontinue use of any numbers, and/or web portals assigned to Customer by James E Smith LLC or its vendors.
16 Software Copyright
Any software used by James E Smith LLC to provide the Services and any software provided to Customer in conjunction with providing the Services are protected by copyright law and international treaty provisions. Customer may not copy the software or any portion of it that is not submitted to an opensource repository with a GPL license.
17 Force Majeure
If James E Smith LLC’s performance under this Agreement is prevented, restricted, or interfered with by factors beyond its reasonable control, including, but not limited to, acts of God (whether or not Customer believes in one), fire, flood, explosion, earthquake, volcanic activity, accident, vandalism, cable cut by a third party, loss of power, hurricane, tsunami, storm or other similar occurrence, any law, order, regulation, direction, action, or request of a national, state, provincial, or local government, or of any department, agency, commission, court, bureau, corporation, or other instrumentality of any one or more such governments, or of any civil or military authority, or by national emergency, insurrection, riot, war, police action, act of terrorism, embargo, strike, lockout, work stoppage, or other labor difficulties, equipment failure, supplier or vendor failure, shortage, breach, or delay, outages of third-party carriers, downtime of the root DNS servers, or other difficulties James E Smith LLC may encounter in spite of James E Smith LLC’s best efforts, then James E Smith LLC shall be excused from such performance, and shall in no case be liable to the Customer for any resulting losses, damages, or interruptions in service.
Your ISP, last-mile provider, network consultant, or other third party may interfere with your James E Smith LLC Services, either intentionally or unknowingly, by blocking certain ports, instituting private addresses or Network Address Translation (“NAT”), instituting Differential Service (“DiffServ”), Quality of Service (“QoS”), or other technological or contractual means. These measures may reduce the quality and reliability of your James E Smith LLC Services, or they may prevent your James E Smith LLC Services from working at all.
If you believe that a third party may be interfering with your service, you should alert James E Smith LLC support. We will work with you to attempt to resolve the issue. Please understand that the involvement of a third party means that we MAY NOT be able to effect a complete or even partial resolution, and that this in no way diminishes your responsibilities under this Agreement.
You acknowledge that James E Smith LLC cannot be held responsible for problems with your Services caused by third parties, including your ISP. Further, you understand and acknowledge that you are responsible for payment of Services without regard to these issues.
Customer acknowledges and understands that this provision constitutes a waiver of any right to a jury trial. Further, Customer agrees to not pursue actions in any small claims court, even as may be otherwise permitted by law.
18 Choice of Law
The Agreement and the relationship between Customer and James E Smith LLC shall be governed by the laws of the State of Pennsylvania without regard to its conflict of law provisions.
19 No Waiver
The failure of James E Smith LLC to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
20 Assignment
This agreement shall be binding upon the heirs, successors, and assigns of James E Smith LLC and Customer. Customer may not assign this agreement, and any such assignment will be considered null and void.
21 Relationship
The parties agree that they are each independent entities and that nothing in this Agreement shall be construed to deem Customer an agent, employee, partner, contractor, joint venture partner, or any other similar relationship.
22 Interpretation
The Terms and Conditions of this Agreement shall be construed according to their plain and fair meaning and not against the drafting party. The words and phrases used herein shall have the meaning generally understood in the communications industry.
23 Survival
The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.
