IMPORTANT NOTICE: DISPUTES ABOUT THESE TERMS AND THE SMB GUIDE SERVICES ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW.
You acknowledge and agree that, by accessing or using the Services you are indicating that you have read, understand, and agree to be bound by these Terms. If you do not agree to these Terms, then you have no right to access or use the Services.
We may, from time to time, modify these Terms. Please check this page periodically for updates. Any changes will be posted on the Services. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Services. The updated Terms will take effect after their posting and will apply on a going-forward basis, unless otherwise provided in a notice to you, and except as provided in the Mandatory Arbitration and Class Action Waiver section of these Terms. Your continued use of the Services after any such update constitutes your binding acceptance of such changes.
1. ELIGIBILITY AND SCOPE
1.1 Eligibility. To use the Services you must be, and represent and warrant that you are, of legal age and competence. By using the Services on behalf of any third party, you are representing to us that you are an authorized representative of that third party and that your use of the Services constitutes that third party’s acceptance of these Terms. If you have been previously prohibited from accessing the Services by The SMB Guide, you are not permitted to access the Services.
1.2 Use Outside the United States of America. The Services are controlled and offered by The SMB Guide from the United States of America. The SMB Guide makes no representations that the Services are appropriate for use in other locations. Those who access or use the Services from other locations do so at their own risk and are responsible for compliance with local law.
2. OUR PROPRIETARY RIGHTS
2.1 Intellectual Property Rights. The Services are owned and operated by The SMB Guide and contain material which is derived in whole or in part from material supplied by The SMB Guide and its partners, as well as other sources, and is protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Services are also protected as a collective work or compilation under U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Services. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by The SMB Guide and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of The SMB Guide and such others. You agree to protect the proprietary rights of The SMB Guide and all others having rights in the Services during and after the term of these Terms and to comply with all reasonable written requests made by The SMB Guide or its suppliers and licensors of content or otherwise (“Suppliers”) to protect their and others’ contractual, statutory, and common law rights in the Services. You agree to notify The SMB Guide immediately upon becoming aware of any unauthorized access or use of the Services by any individual or entity or of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Services shall, as between you and The SMB Guide, at all times be and remain the sole and exclusive property of The SMB Guide.
2.2 Use of Marks. You may not use any of The SMB Guide's trademarks, trade names, service marks, copyrights, or logos in any manner which creates the impression that such items belong to or are associated with you or, except as otherwise provided herein, are used with The SMB Guide's consent, and you acknowledge that you have no ownership rights in or to any such items.
3. LICENSE AND PROHIBITED CONDUCT
3.1 Your License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to access and use the Services for your own personal use consistent with the Terms.
3.2 Prohibited Uses. Use of the Services for any illegal purpose, or any other purpose not expressly permitted in these Terms, is strictly prohibited. Without limitation, you will not:
Copy, download (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), modify, distribute, post, transmit, display, perform, reproduce, broadcast, duplicate, publish, republish, upload, license, reverse engineer, create derivative works from, or offer for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms or with the prior written consent of The SMB Guide; Scrape, access, monitor, index, frame, link, or copy any content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any approved API; Violate the restrictions in any robot exclusion headers of the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the Services;
4. TERMS OF SALE
To the extent that you make a purchase of products offered by The SMB Guide on the Services, such purchase will be subject to separate terms of sale presented on the website or online service where the purchase is made.
5. WARRANTIES AND DISCLAIMERS
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
THE WARRANTIES, IF ANY, APPLICABLE TO EACH PRODUCT AVAILABLE THROUGH THE SERVICES ARE PROVIDED BY THE MANUFACTURER OF SUCH PRODUCT. ALL PRODUCTS ARE MANUFACTURED BY THIRD PARTIES. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. THE SMB GUIDE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, AND NON-INFRINGEMENT. THE SMB GUIDE ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO PROVIDE ANY CONTENT OR TO STORE ANY PERSONALIZATION SETTINGS OR USER MATERIALS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICES IS DOWNLOADED AND USED AT YOUR SOLE DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, SOFTWARE, TECHNOLOGY OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PURTHE SMB GUIDE OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY. THE SERVICES DO NOT PROVIDE MEDICAL OR LEGAL ADVICE. CONSULT WITH YOUR DOCTOR REGARDING ALL ISSUES RELATING TO THE PREVENTION, DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION, AND WITH YOUR LEGAL COUNSEL REGARDING ANY LEGAL CONCERNS. THE SMB GUIDE MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR PROMISE THAT THE PRODUCTS OR SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY PARTICULAR RESULTS, INCLUDING EMPLOYMENT OPPORTUNITIES. THE SMB GUIDE WILL NOT BE RESPONSIBLE FOR ANY THIRD-PARTY CONTENT ON SERVICES, ANY LINKS TO THIRD-PARTY WEBSITES OR ANY THIRD-PARTY WEBSITES. THE SMB GUIDE DOES NOT VET OR VERIFY USERS THAT IDENTIFY THEMSELVES AS EXPERTS ON PARTICULAR TOPICS THROUGH THE SERVICES, AND YOU AGREE NOT TO HOLD THE SMB GUIDE RESPONSIBLE FOR RELIANCE ON SUCH EXPERTS IF YOU DO NOT ACHIEVE THE RESULT S YOU EXPECT IN RELYING ON SUCH EXPERTS. PACKAGING, LABELS AND INSTRUCTIONS MAY CONTAIN MANUFACTURER DISCLAIMERS AND LIMITATIONS OF LIABILITY THAT APPLY TO THE PRODUCTS YOU PURCHASE. THE SMB GUIDE MAKES ALL DISCLAIMERS IN THIS PARAGRAPH ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS.
6. LIMITATION OF LIABILITY
IN NO EVENT WILL THE SMB GUIDE, ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING) (COLLECTIVELY “THE SMB GUIDE” FOR PURPOSES OF THIS SECTION) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM THE PERFORMANCE, USE OF OR THE INABILITY TO USE THE SERVICES OR PRODUCTS, EVEN IF THE SMB GUIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE OR OTHERWISE. THE SMB GUIDE WILL NOT BE LIABLE FOR THE COST OF REPLACEMENT PRODUCTS, LOSS OF REVENUE OR LOSS OF GOOD WILL. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT OR SERVICE TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, $100.
THE SMB GUIDE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICE, AND THE SMB GUIDE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. THE SMB GUIDE WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that The SMB Guide shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on or through the Services.
9. THIRD-PARTY LINKS AND SERVICES
10. MODIFICATION AND TERMINATION
10.1 Modification of Services. The SMB Guide reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof), with or without notice. You agree that The SMB Guide shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services.
10.2 Termination. These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion, deny you access to all or part of the Services at any time for any or no reason at all, with or without notice to you. Grounds for such termination shall include, but not be limited to, (a) breaches or violations of these Terms or other agreements, (b) requests by law enforcement or government agencies, (c) discontinuance or material modification of the Services (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity (f) activities related to protecting the rights, property or safety of The SMB Guide, its agents and affiliates, its users and the public; or (g) if you provide any information, including registration information, that is false, inaccurate, out-of-date, or incomplete. If we terminate for no reason your right to access the Services, we will fulfill our obligations to you related to any order outstanding at the time of termination. If you terminate your account, you will remain liable under these Terms for any purchase made prior to termination. If we terminate your right to access the Services, these Terms will terminate and all rights you have to access the Services will immediately terminate; however, certain provisions of these Terms will still apply post termination, including without limitation, the Mandatory Arbitration and Class Action Waiver provisions. Termination of your account may also include, at The SMB Guide sole discretion, the deletion of your account and/or User Content.
11. MANDATORY ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
11.1 Application. You and The SMB Guide agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
11.2 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at email@example.com, and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with The SMB Guide, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
11.3 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in section 11.7 below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of The SMB Guide shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
11.4 Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
11.5 Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco California 94111; and (c) Send one copy of the Demand for Arbitration to us at The SMB Guide, Attn: Legal Department, 2093 Philadelphia Pike #2555 Claymont DE 19703-2424 United States.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, The SMB Guide will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, The SMB Guide will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration.
11.6 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND THE SMB GUIDE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
11.7 Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
11.8 30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to at firstname.lastname@example.org with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty days of your first use of the Services. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, The SMB Guide also will not be bound by them.
11.9 Changes to This Section: The SMB Guide will provide thirty (30) days’ notice of any changes to this section by posting on the Services. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Services.
12. Controlling Law and Severability
These Terms will be interpreted in accordance with the laws of the State of California, without regard to its conflict-of-law provisions. If any part of these Terms is considered invalid, it shall be enforced as effectively as possible while all other provisions remain in full effect.
13. GENERAL TERMS
13.1 Force Majeure. Under no circumstances shall The SMB Guide or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
13.2 No Waiver; Severability. No waiver of any term of these Terms will be binding unless in writing, no waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term, and the failure of The SMB Guide to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
13.3 Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
13.4 Miscellaneous. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and The SMB Guide and govern your use of the Services, Services and products provided by The SMB Guide, and supersede any prior agreements between you and The SMB Guide on the subject matter. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by The SMB Guide without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of The SMB Guide. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. These Terms will not be construed against the drafter. “Include(s)” or “including” means, respectively, “include(s) without limitation” or “including without limitation”, unless expressly stated otherwise. If you are using the Services for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect.
13.5 Notices. We may deliver notice to you by e-mail, posting a notice on the Services or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address: (1) The SMB Guide, 2093 Philadelphia Pike #2555 Claymont DE 19703-2424 United States; or (2) email@example.com.
If you have any questions about these Terms, please contact us by email at firstname.lastname@example.org. Last Updated: August 17, 2018.