SmarterTravel Terms and Conditions of Use & Sale
Last Updated: May 31, 2023
IF YOU DO NOT AGREE WITH THESE TERMS, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE SOLUTION OR ANY COMPONENT THEREOF, AND ARE INSTRUCTED TO EXIT THE SOLUTION IMMEDIATELY.
THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITIES. THESE TERMS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT.
THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN.
SmarterTravel reserves the right to update and change, from time to time, these Terms and all documents incorporated by reference by posting updates and/or changes to the Site or in the App, or mailing and/or emailing notice of such change to you. In addition, SmarterTravel may add, modify, or delete any aspect, program, or feature of the Solution, but SmarterTravel is not under any obligation to add any upgrade, enhancement, or modification. Your continued use of the Solution following any announced change will be conclusively deemed acceptance of any change to these Terms (and acceptance of the version of the Terms then in effect). Accordingly, please review the Terms found at this location on a periodic basis.
Table of Contents (by section number)
- License Grant and Intended Use
- Proprietary Rights and License Restrictions
- Accounts and Registration
- SUPPLIER RULES AND RESTRICTIONS; REFUND POLICY
- Hotel Star Ratings and Guest Reviews
- Hotel Overbookings; Denied Check-Ins
- PURCHASES AND PAYMENTS; TRAVEL MEMBERSHIP & SUBSCRIPTION AND AUTOMATIC PAYMENT
- International Travel
- DISCLAIMERS OF OTHER WARRANTIES
- LIMITATION OF LIABILITY
- DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION; CLASS ACTION WAIVER
- SmarterTravel's Additional Remedies
- Notice and Takedown Procedures; Copyright Act
- Third-Party Links
- Data Collection, Communications, and Updates
- Additional Terms and Conditions for Apple Users
- Mobile Data Usage
- Enforcing Security
- Term and Termination
- No Waiver
- Governing Law and Venue
- Updates to the Agreement
- Entire Agreement
- Contacting Us
- Force Majeure
SECTION 1 – LICENSE GRANT AND INTENDED USE
This Agreement provides to you a personal, revocable, limited, non-exclusive, non-sublicensable, non-transferable license to use the Solution, conditioned on your continued compliance with these Terms. The Solution is intended for use by adults or by minors who are supervised by an adult at all times. If you use the Solution, you are affirming that you are at least 18 years old or the legal age of majority in your state or province of residence (whichever is greater), have the legal capacity to enter into a binding contract with us, and have read this Agreement and understand and agree to these Terms. You are further affirming that you will only use the Solution to make legitimate reservations for you or for another person for whom you are legally authorized to act, and that you will inform such other person about these Terms and any other legal restrictions of which you are aware that apply to the reservations you have made on their behalf, including all rules and restrictions applicable thereto. We retain the right at our sole discretion to deny or suspend access to anyone to the Solution and the services we offer, at any time and for any reason, including without limitation for violation of these Terms.
SECTION 2 – PROPRIETARY RIGHTS AND LICENSE RESTRICTIONS
All aspects of our Solution are protected by U.S. and international copyright, trademark, and other intellectual property laws, including all content, information, design elements, text material, logos, taglines, metatags, hashtags, photographic images, testimonials, personal stories, icons, video and audio clips, and downloads. No material on the Solution may be copied, reproduced, distributed, republished, uploaded, displayed, posted, or transmitted in any way whatsoever without SmarterTravel's express prior written consent. The SmarterTravel trademark and logo are proprietary marks of SmarterTravel, and any use of those marks without SmarterTravel's express prior written permission is strictly prohibited. Nothing herein gives you the right to use, copy, register as a domain name, reproduce, or otherwise display any logo, tagline, copyrighted material, trademark, trade name, patent, trade dress, trade secret, or confidential information owned by SmarterTravel.
You may not modify, translate, decompile, create derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, publish, remove or alter any proprietary notices or labels, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use the Solution in any manner not expressly permitted herein. Moreover, you shall not, nor shall you permit any third party or person to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure implemented by SmarterTravel for use of the Solution.
You agree not to use or attempt to use the Solution or any software in any unlawful manner or a manner harmful to SmarterTravel. You further agree not to commit any harmful or unlawful act or attempt to commit any harmful or unlawful act on or through the Solution or use of the software including, but not limited to, refraining from:
- any violation of applicable law or regulation; unlawful, fraudulent, or unethical business practice; statements or activities that would cause injury to SmarterTravel's reputation; hacking and other digital or physical attacks on the Solution; and the violation of the rights of SmarterTravel or any third party;
- any communications sent or authorized by you reasonably deemed "spamming," or any other unsolicited solicitations (including without limitation postings on social media or third party blogs); and/or
- any communication sent, posted, or authorized by you, including without limitation postings on any website operated by you, or social media or blog, which are: sexually explicit, obscene, vulgar, or pornographic; offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory; graphically violent; solicitous of unlawful behavior; promoting the sale or use of illegal drugs; or that violates the personal or proprietary rights of any individual.
By posting or submitting any material (including without limitation comments, blog entries, social media posts, photos and videos) (each a "Submission" and collectively, "Submissions") to us via the Solution, internet groups, social media venues, or to any of our staff via email, text or otherwise, you are representing that you are the owner of the Submission, or are making your Submission with the express consent of the owner of the Submission. In addition, when you submit, email, text or deliver or post any material, you are granting us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such material, in whole or in part, in any manner or medium, now known or hereafter developed, for any purpose. The foregoing grant shall include the right to exploit any proprietary rights in such Submission, including, but not limited to, rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. Also, in connection with the exercise of such rights, you grant us, and anyone authorized by us, the right to identify you as the author of any of your Submissions by name, email address or screen name, as we deem appropriate. You also acknowledge that such Submissions (in the form received or provided by you) are non-confidential for all purposes and that SmarterTravel owes no obligation of confidentiality, attribution, or approval, and has no control over the extent to which any idea or information may be used by any other party or person. You will receive no compensation for any Submission(s) and hereby waive any right to enforce any intellectual property or proprietary right against SmarterTravel and its parent, affiliates, and subsidiaries as a result of or on the basis of any use or exploitation of any Submission.
SECTION 4 – ACCOUNTS AND REGISTRATION
You may be required to register to use the Solution or certain features of the Solution. Each registration is for a single user only, unless otherwise expressly agreed upon by SmarterTravel. Registration for access to and use of the Solution may also require access credentials, such as a user name and a password, or adherence to other particular access requirements as designated by SmarterTravel in its sole discretion from time to time. You hereby agree to consider your access credentials, such as a user name and password, as confidential information and not to disclose such information to any third party without the prior express written consent of SmarterTravel, which may be withheld in its sole discretion. You shall immediately notify SmarterTravel if you suspect or become aware of any loss or theft of your password or any unauthorized use of your user name and password. SmarterTravel will not be liable for any loss or damage arising from your failure (whether inadvertent or intentional) to comply with these obligations. By submitting the requested information to the registration form on the Solution, You represent and warrant that the information you submit for registration is complete, true, accurate, and current in all respects. You must maintain and promptly update your submitted account information to ensure that such information is complete, true, accurate, and current. SmarterTravel reserves the right to suspend, terminate, or otherwise discontinue your account and/or pending registration if SmarterTravel has reasonable grounds to suspect that any information you have submitted is untrue, inaccurate, not current, or incomplete, or that your registration, account, or use of the Solution is in violation of applicable law, regulation, or any provision of this Agreement.
SECTION 5 – SUPPLIER RULES AND RESTRICTIONS; REFUND POLICY
Additional terms and conditions of third-party suppliers (including without limitation the hotels with which you make reservations through the Solution) (collectively, "Suppliers"), will apply to your reservation and purchase of travel-related products and services that you select. Please read these additional terms and conditions carefully. You agree to abide by the terms and conditions of purchase imposed by any Supplier with whom you elect to transact, including without limitation the payment of all amounts when due, and the Supplier's rules and restrictions regarding availability and use of products, services, promotions, refunds, or other benefits.
Some hotel Suppliers may require you to present a credit card or cash deposit upon check-in to cover additional expenses during your stay. Such deposit is unrelated to any payment made to us through the Solution or otherwise.
You acknowledge that Suppliers offering certain services and/or activities may require you to sign their liability waiver prior to participating in the service and/or activity they offer. You expressly agree to abide by any such Supplier's rules and restrictions governing your purchase of any Supplier's products or services, including without limitation any hotel reservations or stays. You understand that any violation of any such Supplier's rules and restrictions may result in cancellation of your reservations, in your being denied access to the applicable travel product or services, and/or in your forfeiting any monies paid for such reservations.
WE ACT ONLY AS A BOOKING, RESERVATION AND/OR PURCHASE PLATFORM FOR SUPPLIERS OF HOTEL AND HOSPITALITY PRODUCTS AND SERVICES. WE DO NOT SET ANY OF THE FINAL PRICES FOR HOTEL RESERVATIONS OR OTHER SUPPLIER PRODUCTS AND SERVICES, WHETHER MADE AVAILABLE THROUGH THE SOLUTION OR OTHERWISE. NOR DO WE CONTROL WHETHER OR WHEN SUPPLIERS CLASSIFY CERTAIN BOOKINGS, RESERVATIONS AND/OR PURCHASES AS NON-REFUNDABLE. PLEASE ADHERE TO THE ADDITIONAL TERMS AND CONDITIONS IMPOSED ON YOU BY SUPPLIERS. YOU ACKNOWLEDGE THAT SUPPLIERS ARE THIRD PARTIES WHO ARE NOT AFFILIATED WITH SMARTERTRAVEL. ACCORDINGLY, YOU AGREE THAT SMARTERTRAVEL WILL HAVE NO LIABILITY OR RESPONSIBILITY HEREUNDER FOR ANY ACT OR OMISSION OF SUPPLIERS OR THEIR SUBCONTRACTORS, INCLUDING WITHOUT LIMITATION ANY BREACH OF ANY SEPARATE CONTRACT OR SET OF LEGAL TERMS BETWEEN YOU AND SUCH SUPPLIERS. SMARTERTRAVEL DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING ANY SUPPLIER'S HOTELS, PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
REFUND POLICY: If you use the Solution to make a booking, reservation or purchase which the Supplier has classified as non-refundable, please be aware that you will not be entitled to receive a refund from (or at the expense of) SmarterTravel. This policy applies even if you are dissatisfied with the Supplier’s property(ies), products or services for any reason, or if circumstances somehow prevent you from experiencing them fully (or at all). If a user pays for such a non-refundable transaction through a credit card or other third-party payment processor, and then later attempts to dispute or otherwise reverse the payment(s) to SmarterTravel, we will contest any such charge-back(s) by making the third party aware of this conspicuous policy.
SECTION 6 – HOTEL STAR RATINGS AND GUEST REVIEWS
We do not warrant or guarantee that our star rating system is equal to or consistent with any other star rating system, and reserve the right to change a hotel's rating at any time with or without notice. We do not make any express or implied representation, warranty, or guarantee about the quality of any hotel, regardless of its posted rating, nor do we make any representation or warranty about the accuracy or content of any guest review.
SECTION 7 - HOTEL OVERBOOKINGS; DENIED CHECK-INS
If a Supplier hotel has overbooked and is sold out, it is the Supplier's responsibility to find you a convenient and comparable accommodation. You should notify us as soon as possible in the event that the hotel is unable to find you an available room at check-in, or if the hotel is unable or unwilling to locate or honor your reservation, so that we may assist in the process. However, we do not bear any ultimate responsibility or liability for a Supplier's failure or refusal to process your reservation at check-in. We will endeavor to enforce our agreements with Suppliers, but we are not responsible to you if the hotel does not, for whatever reason, find or place you in an available or acceptable room.
SECTION 8 – PURCHASES AND PAYMENTS; TRAVEL MEMBERSHIP & SUBSCRIPTION AND AUTOMATIC PAYMENT
The Solution may contain the option for you to purchase a payment plan, membership plan, subscription, or other related products and services. The applicable fees (and any applicable discounts, if available), period of plan or subscription, renewal opportunities, and permitted payment methods (e.g., credit or debit) will be specified through the Solution at the time of order. All purchases are final and there will be no refunds or credits except as otherwise provided in these Terms, indicated by SmarterTravel in writing, or as may be required under applicable law. All transactions are void where prohibited by law, and SmarterTravel may request information in order to confirm the order and method of payment. SmarterTravel reserves the right to terminate or suspend access to the Solution or any related plan, subscription, product, or service if you fail to pay any amounts when due. You shall reimburse SmarterTravel for all reasonable costs incurred (including reasonable attorney's fees) in collecting past-due amounts. Unless otherwise specified herein, all obligations with respect to the amounts due to SmarterTravel under the TOU shall survive the expiration or termination of the Agreement for any reason.
Upon placing an order with SmarterTravel, you agree to pay using the payment methods indicated and grant authorization to SmarterTravel and/or the applicable third party payment-processor to charge your payment methods indicated. SmarterTravel and/or the applicable third-party payment processor shall charge and you shall be responsible for payment of all taxes, tariffs, levies, or duties applicable to your payment. All amounts loaded to your account will be denominated in the currency of the United States, and all transactions listed through the Solution are denominated in U.S. dollars. You are responsible for: (a) the accuracy of all credit and debit card information that you provide to us; and (b) maintaining the confidentiality and security of your account information. You should not disclose your account information to anyone. If your account information is lost or stolen, anyone who obtains possession of either could use your account. You are responsible for all transactions on your account, including unauthorized transactions.
If you enroll in one of our membership or subscription travel plans, you further acknowledge and agree that payments are due on a recurring basis in accordance with the payment terms for the specific service purchased (unless the membership or subscription travel plan is cancelled or terminated in accordance with these Terms) and therefore authorize the automatic payment collection terms applicable to that specific service (e.g., on a monthly or yearly basis and for a specific amount).
IF YOU ARE A SOLUTION USER WITH A MEMBERSHIP OR SUBSCRIPTION TRAVEL PLAN AND YOU HAVE PROVIDED US WITH A VALID PAYMENT CARD NUMBER OR OTHER METHOD OF PAYMENT, EACH PAYMENT WILL BE AUTOMATICALLY PROCESSED AT THE TIME OF YOUR DESIGNATED PAYMENT DATE (MONTHLY OR YEARLY) AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR ENROLLMENT. IF YOU WISH TO CANCEL YOUR MEMBERSHIP OR SUBSCRIPTION TRAVEL PLAN, YOU MAY DO SO BY E-MAILING [email protected] BEFORE THE FIRST DAY OF YOUR NEXT SUBSCRIPTION MONTH OR YEAR AND YOUR ACCOUNT WILL BE CLOSED AT THE END OF YOUR BILLING PERIOD.
SECTION 9 – INTERNATIONAL TRAVEL
You are responsible for ensuring that you meet foreign entry requirements and that your travel documents, such as passports and visas (transit, business, tourist, and otherwise), are in order and any other foreign entry requirements are met. SmarterTravel has no special knowledge regarding foreign entry requirements or travel documents. We urge customers to review travel prohibitions, warnings, announcements, and advisories issued by the relevant governments prior to booking travel to international destinations. We will have no liability to you if you are refused entry onto a flight or into any country. This includes all stops made by the aircraft, even if you do not leave the aircraft or airport. It is your responsibility to ensure that you meet all entry requirements, obtain and take all recommended medication, receive all required inoculations, and follow all required health, legal, and regulatory procedures that apply to your travels. Nothing in the Solution shall constitute or be construed as any formal or professional advice on these subjects or requirements.
SECTION 10 – DISCLAIMERS OF OTHER WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, OR OTHERWISE EXPRESSLY PROHIBITED BY APPICABLE LAW:
THE SOLUTION AND ALL CONTENT THEREIN AND COMPONENTS THEREOF ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, WARRANTIES OF NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL REPRESENTATIONS AND WARRANTIES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, AND/OR COMPLETENESS OF ANY INFORMATION ON THE SOLUTION. WE DO NOT REPRESENT OR WARRANT, AND EXPRESSLY DISCLAIM THAT: (A) THE USE OF THE SOLUTION WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SOLUTION SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY INFORMATION PROVIDED TO YOU THROUGH THE SOLUTION WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOLUTION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS IN THE SOLUTION WILL BE CORRECTED; OR (F) THE SOLUTION OR THE SERVER(S) THAT MAKE THE SOLUTION AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
SECTION 11 – LIMITATION OF LIABILITY
IN NO EVENT SHALL THE AMOUNT OF SMARTERTRAVEL'S TOTAL AGGREGATE LIABILITY TO YOU OR YOUR BUSINESS EXCEED THE GREATER OF: (I) THE TOTAL PAYMENTS MADE BY YOU TO SMARTERTRAVEL FOR SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST SMARTERTRAVEL OCCURRED; OR (II) TWO THOUSAND DOLLARS ($2,000).
SECTION 12 – DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION; CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT ANY CLAIM THAT YOU OR YOUR BUSINESS MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THIS SECTION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND YOUR BUSINESS ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU AND YOUR BUSINESS WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU AND YOUR BUSINESS MAY ONLY BRING A CLAIM IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES).
Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
The arbitrator shall follow the substantive law of the Commonwealth of Massachusetts, without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
You and SmarterTravel agree that disputes will only be arbitrated on an individual basis and shall not be consolidated, on a class wide, representative basis, or with any other arbitration(s) or other proceedings that involve any claim or controversy of any other party. You and SmarterTravel expressly waive any right to pursue any class or other representative action against each other.
All claims arising under this Agreement between the parties hereto must be brought within 1 year after the first occurrence of the cause of action giving rise to the claim (the 1 year period includes the 120-day informal resolution procedures described above).
This provision survives termination of your account or relationship with SmarterTravel, including without limitation by the bankruptcy or insolvency of either party, or assignment of the Agreement. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU HEREBY KNOWINGLY AND FULLY WAIVE THIS RIGHT, AND UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THIS ARBITRATION PROVISION.
SECTION 13 – SMARTERTRAVEL'S ADDITIONAL REMEDIES
You acknowledge that any material breach by you of these Terms may cause SmarterTravel to suffer irreparable injury, the extent of which is not readily calculable as money damages. Accordingly, in the event of any breach or threatened breach by you of the provisions of this Agreement or any infringement or threatened infringement by you of the intellectual property of SmarterTravel or a third party, SmarterTravel shall be entitled to seek preliminary and/or final injunctive relief or other equitable relief restraining such breach, threatened breach, infringement, or threatened infringement, in any court of competent jurisdiction (notwithstanding the foregoing provisions regarding arbitration), in addition and without prejudice to any other right or remedy available to SmarterTravel in connection with such breach. You and your business hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, the state and federal courts sitting in Cambridge, Massachusetts for all such claims or actions for equitable relief, and forever waive any challenge to said courts' exclusive jurisdiction or venue.
SECTION 14 – INDEMNIFICATION
SECTION 15 – NOTICE AND TAKEDOWN PROCEDURES; COPYRIGHT ACT
If you believe that materials or content available on the Solution infringes any copyright you own, you or your agent may send SmarterTravel a notice requesting that SmarterTravel remove the materials or content from the Solution. If you believe that someone has wrongly filed a notice of copyright infringement against you, you may send SmarterTravel a counter-notice. Notices and counter-notices should be sent by e-mail to SmarterTravel's copyright agent at [email protected] with the subject line "DMCA Notice" or "DMCA Counter-Notice", and the e-mail must include all information and affirmations required by the Digital Millennium Copyright Act, as follows:
- A clear identification of the copyrighted work that you claim has been infringed.
- A clear identification of the material you claim infringes the copyrighted work, and information that will allow us to locate that material in the Site or App, such as a link to the infringing material.
- Your contact information so that we can reply to your complaint, preferably including both an email address and a telephone number.
- A statement that you have a "good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law."
- A statement that "the information in the notification is accurate, and under penalty of perjury, the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
- The written notice must be signed by the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
SECTION 16 – THIRD-PARTY LINKS
SmarterTravel may provide links, in its sole discretion, to other applications, websites, or networks for your convenience in locating or accessing related information and/or services, including without limitation the websites and content of Suppliers. These other applications, websites, and/or networks are maintained by third parties over which SmarterTravel exercises no control. Our linking to such third-party sites does not imply an endorsement or sponsorship of such sites, or the information, products, or services offered on or through the sites. Your correspondence or any other dealings with third parties are solely between you and such third party. Accordingly, SmarterTravel hereby expressly disclaims and shall not have any liability or responsibility for such applications, websites, or networks, or in connection with any such dealings between you and such third parties.
SECTION 17 – DATA COLLECTION, COMMUNICATIONS, AND UPDATES
By installing, accessing, or using the Solution, you agree to allow SmarterTravel to collect (on behalf of itself and its affiliates and contractors) certain information regarding your use of the Solution (including, without limitation, certain data regarding your mobile device (e.g., type of device, unique device ID, etc.), operating software, feature utilization, navigation, and personal information (e.g., name, email, phone number, etc.)). In particular, if you elect to use certain location-based features or services, SmarterTravel may collect your precise location. You authorize SmarterTravel to locate your device and to record, compile, and/or display your location.
By creating an account, you agree to receive communications from SmarterTravel, including without limitation email, push notifications, and/or text messages (e.g., two factor authentication) that are necessary for you to use the Solution. These communications are part of your relationship with SmarterTravel and you receive them as part of your use of the Solution. Additionally, you will have the opportunity to separately opt-in to receive text messages concerning account alerts, account notifications, and SmarterTravel’s promotions and marketing. By entering your number and enabling the opt-in functions in the Solution, you are voluntarily enrolling in our text message service and consent to receive the selected type(s) of text messages from us. Similarly, by texting us at (844) 267-3694, you voluntarily opt-in to our chat service and consent to receive text messages from us so that we can respond your questions and facilitate your use of the Solution. Message frequency varies.
By using the Solution you agree that any such notices, agreements, disclosures or other communications that SmarterTravel sends to you by any electronic means will satisfy any legal communication requirements. Furthermore, you understand and agree that installation of the App permits the downloading of updates and upgrades for the purpose(s) of fixing product defects or providing enhancements. You will be given notice and an opportunity to accept or refuse any update or upgrade that SmarterTravel provides. However, your refusal of an update or upgrade may impact performance of the App.
SECTION 18 – ADDITIONAL TERMS AND CONDITIONS FOR APPLE USERS
NOTE – This paragraph applies to you only if you downloaded the App through Apple Inc.'s App Store.You acknowledge that the Agreement is between You and SmarterTravel, and that Apple Inc. ("Apple") bears no responsibility for the App and its content. The license grant under these Terms is a non-transferable license to use the App on any Apple-branded products that You own or control as permitted by the Terms and the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the App may be accessed and used by other accounts associated with You via "Family Sharing" (as defined in the Apple Media Services Terms and Conditions) or volume purchasing. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) of the App to You; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or a third party relating to the App or your use of the App, including without limitation: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. In the event of any third party claim that the App or your possession and use thereof infringes a third party's intellectual property rights, Apple will not be responsible for any investigation, defense, settlement, or discharge thereof. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
SECTION 19 – MOBILE DATA USAGE
The Solution offers various tools or display functionality that are available to you via your mobile phone or other mobile computing device. Please note that your mobile carrier's normal messaging, data, and other rates and fees will apply to your use of the Solution. In addition, downloading, installing, or using the Solution may be prohibited or restricted by your mobile carrier, and not all functionality on the Solution will work with all carriers or devices or in all locations. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Solution is available for your mobile devices; what restrictions, if any, may be applicable to your use of the Solution; and how much such use will cost You. Nevertheless, your use of the Solution shall be strictly in accordance with these Terms.
SECTION 20 – ENFORCING SECURITY
SmarterTravel reserves the right to view, monitor, and record activity on the Solution without notice or permission from you. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal or unlawful activity on the Solution as well as to disclosures required by or under applicable law or related government agency actions. SmarterTravel will also comply with all court orders or subpoenas involving requests for such information.
SECTION 21 – TERM AND TERMINATION
These Terms will take effect (or re-take effect) at the moment you click "I AGREE" or similar buttons or begin downloading, accessing, or using the Solution, whichever is earliest. SmarterTravel reserves the right at any time and on any grounds, including without limitation any reasonable belief of fraudulent or unlawful activity or acts or omissions that violate any term or condition of these Terms, to deny your access to the Solution or to any portion thereof in order to protect its name and goodwill, its business, and/or the rights of third parties. The Agreement will terminate automatically if you fail to comply with its provisions, subject to the survival rights of certain provisions identified below. Termination will be effective without prior notice and may impact (and prohibit) submission of any information. You may also terminate the Agreement at any time by ceasing to use the Solution, but all applicable provisions of these Terms will survive termination, as identified below, and each re-access or use of the Solution will reapply the Terms (then in effect) to You. Sections 2, 5 through 7, 9 through 14, and 22 through 27 of this Agreement, as well as any representations, warranties, assignments and other obligations made or undertaken by you, shall survive the termination of this Agreement and/or your account or relationship with SmarterTravel.
SECTION 22 – NO WAIVER
No failure or delay on the part of SmarterTravel in exercising any right, power or remedy under this Agreement may operate as a waiver, nor may any single or partial exercise of any such right, power, or remedy preclude any other or further exercise of such right, power, or remedy, or the exercise of any other rights, power, or remedy under this Agreement. A waiver by SmarterTravel of any right or obligation under this Agreement shall only be effective if in writing and signed by SmarterTravel.
SECTION 23 – GOVERNING LAW AND VENUE
This Agreement and any issue or dispute arising out of or otherwise related to this Agreement or your access to or use of the Solution, including your purchase and use or attempted use of any service or product offered or made available to you through the Solution, shall be governed exclusively by the laws of the Commonwealth of Massachusetts, without reference to its principles of conflict of laws. To the extent that any claim or dispute is found by the arbitrator or (if proper) a court of competent jurisdiction to be excluded from the arbitration agreement in Section 12 above, the parties agree that any such claim or dispute shall be exclusively brought in and decided by the state or federal courts sitting in Cambridge, Massachusetts, and the parties hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, such courts, and forever waive any challenge to said courts' exclusive jurisdiction or venue.
SECTION 24 – ASSIGNMENT
SmarterTravel may assign its rights under this Agreement at any time to any third party, without notice to you. You may not assign any right, benefit, or obligation under this Agreement without SmarterTravel's express written consent, to be granted or withheld in SmarterTravel's sole discretion.
SECTION 25 – UPDATES TO THE AGREEMENT
SECTION 26 – SEVERABILITY
If any provision of this Agreement is found by the arbitrator or (if proper) a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall continue in full force and effect, and such provision may be modified or severed from this Agreement to the extent necessary to make such provision enforceable and consistent with the remainder of the Agreement, to the maximum extent permitted under applicable law.
SECTION 27 – ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between you and SmarterTravel with respect to its subject matter, and supersedes and replaces any prior or contemporaneous agreements, representations, communications, and proposals, whether oral or written, between you and SmarterTravel.
SECTION 28 – CONTACTING US
1 Washington Mall #1150
Boston MA 02108
SECTION 29 - FORCE MAJEURE
The performance by SmarterTravel and its Suppliers of any covenant or obligation on their part to be performed under this Agreement shall be excused by floods, riots, fires, accidents, wars, embargoes, acts, global health/disease crises, injunctions, or restraints of government, or any other cause preventing such performance, beyond their reasonable control and which is not due to their fault or negligence (“Force Majeure Event”). SmarterTravel has the right to terminate if a Force Majeure Event occurs that affects your booked trip.