These Terms of Service (“Terms”) govern your use of the websites, mobile application (the “App”), and other services operated by Smart PT (“Smart PT,” “we,” “us” or “our”) where these Terms are posted (collectively, the “Sites”). These Terms represent a binding contract between Smart PT and you. By creating an account or otherwise accessing the Sites, you expressly represent that you are legally competent to enter into this agreement and agree to be bound by these Terms. If you do not agree to be bound by the Terms, you may not use the Sites.

Certain areas, features, or functionalities of the Sites may be subject to different or additional terms, rules, guidelines, or policies (collectively, “Additional Terms”). We may provide such Additional Terms to you via postings, pop-up notices, links, or other means when you access or use the relevant area, feature, or functionality. Any reference to the “Terms” in this agreement includes such Additional Terms. However, if any Additional Terms conflict with these Terms, the Additional Terms will control.

1. IMPORTANT NOTICE ABOUT ARBITRATION

2. SITES DO NOT PROVIDE MEDICAL OR HEALTH CARE SERVICES

3. NO USERS UNDER AGE 18

4. ACCOUNT CREATION & PASSWORDS

5. SUBSCRIPTIONS & PAYMENTS

6. LINKS TO EXTERNAL SITES

7. PRIVACY

8. USER CONTENT & GRANT OF LICENSE TO SMART PT

9. USER CONDUCT

10. COPYRIGHT & TRADEMARK OWNERSHIP

11. DISCLAIMER OF WARRANTIES

12. LIMITATION OF LIABILITY

13. INDEMNIFICATION

14. DISPUTE RESOLUTION & AGREEMENT TO ARBITRATE

15. MODIFICATION & TERMINATION OF THESE TERMS & THE SITES

16. CHOICE OF LAW & CHOICE OF FORUM

17. MISCELLANEOUS TERMS

18. CONTACT US

1.             IMPORTANT NOTICE ABOUT ARBITRATION

PLEASE NOTE THE ARBITRATION REQUIREMENT AND CLASS ACTION WAIVER BELOW, WHICH, WITH LIMITED EXCEPTIONS, REQUIRES YOU TO ARBITRATE CLAIMS YOU MAY HAVE AGAINST US ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT TO A JUDGE OR JURY TO DECIDE YOUR CLAIMS. IT ALSO MEANS YOU MAY NOT PROCEED WITH YOUR CLAIMS IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.

2.             SITES DO NOT PROVIDE MEDICAL OR HEALTH CARE SERVICES

(a)           General Educational & Informational Purposes of the Sites. The content provided through the Sites may include text, audio, videos, photographs, illustrations, graphics, electronic communications, and other media depicting or relating to movement- and exercise-based therapy. We provide this content for general educational and informational purposes only. The Sites do not, and are not intended to, provide services constituting the prevention, evaluation, diagnosis, correction, rehabilitation, or treatment of, or any prescription for, any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition that you or any other person may have.

(b)          Consulting with a Health Care Provider. While the Sites may contain perspectives and opinions on matters relating to movement- and exercise-based therapy and related issues, such content does not take into account your or any other person’s specific circumstances. Before using the Sites and undertaking any exercise or stretching routine, you should consider consulting with your physician, physical therapist, or other health care provider on the appropriateness of such exercise or stretching routine for you. If you have any health problems or health care-related questions while using the Sites, you should promptly call or visit your provider. If you have an emergency medical condition, call 911. The Sites are not intended as a substitute for professional advice from a qualified health care provider that is tailored to your individual circumstances. Your use of the Sites, including any communications you send to or receive from us or any Affiliated Parties, will not make you a patient of Smart PT or any Affiliated Parties, or require Smart PT or any Affiliated Parties to provide any health care service to you or any other person. For purposes of these Terms, “Affiliated Parties” include Smart PT, its affiliates and subsidiaries, and their respective owners, directors, officers, managers, employees, agents, contractors, advertisers, and representatives.

(c)           ASSUMPTION OF RISKS. You acknowledge your awareness of, and KNOWINGLY AND VOLUNTARILY assume responsibility for, all risks, including, without limitation, the risks of injury, associated with your use of the Sites, the performance of any exercise or stretching routine, and your reliance on any content or information accessible through the Sites. Smart PT AND THE AFFILIATED PARTIES are in no way responsible for these risks or any damages you or any other person may suffer in connection with your use of the Sites.

3.             NO USERS UNDER AGE 18

The Sites are not intended for users under 18 years of age. No one under age 18 may provide any information to or through the Sites. We do not knowingly collect personal information from users under age 18. If you are under age 18, do not use our Sites or provide any information on our Sites. If we learn that we have collected or received information from a user under age 18, we will delete that information and terminate any associated account.

4.             ACCOUNT CREATION & PASSWORDS

(a)           Account Creation. To access certain portions of the Sites, you must create an account. You agree to provide truthful and accurate information during the account creation process. You also agree to maintain the accuracy of any submitted data. If you provide any information that is untrue, inaccurate, or incomplete, we may terminate your account and suspend your use of any and all Sites.

(b)          Passwords. You are solely responsible for preserving the confidentiality of your account password and will notify us of any known or suspected unauthorized use of your account. You agree that you are responsible for all acts and omissions that occur on your account while your password is being used.

5.             SUBSCRIPTIONS & PAYMENT

(a)           Paid Subscriptions. Some aspects of the Sites and the services offered on the Sites, including content available through our Total Programs and Training Library, require payment before they can be accessed or used (“Paid Subscriptions”). While Paid Subscription options may vary from time to time, they will require you to pay a recurring fee on a monthly, bi-annual, or annual basis, or at some other recurring interval disclosed to you prior to purchase (the “Subscription Period”).

(b)          Additional Terms. Your Paid Subscription will typically be subject to Additional Terms presented to you prior to purchase. Please carefully review the terms of the applicable offer before registering for a Paid Subscription. We may change the price of Paid Subscriptions from time to time, but we will communicate any price changes to you as required by applicable law (if any) and, if applicable, we will tell you how to accept those changes. Price changes for Paid Subscriptions will take effect at the start of the next Subscription Period.

(c)           Charges to Credit Cards & Other Accounts. By registering for a Paid Subscription, you agree to supply and, as applicable, promptly update certain information relevant to your payment for a Paid Subscription, including, without limitation, information about your method of payment (such as your payment card number and expiration date) and your billing address. You also authorize us (or the app store that you use to download our App) to charge your credit card or other account that you have designated, on a recurring basis, for the applicable subscription fee at the then current rate plus applicable tax, if any. All fees are charged in United States dollars (USD). YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD OR OTHER PAYMENT METHOD UTILIZED IN CONNECTION WITH ANY TRANSACTION INVOLVING A PAID SUBSCRIPTION.

(d)          Auto-Renewal & Cancellation. The subscription fee for a Paid Subscription will be billed at the beginning of your Subscription Period or expiration of your free trial period, if any. Paid Subscriptions automatically renew until they are cancelled as described below. This means that, after your initial Subscription Period, and again after any subsequent Subscription Periods, you will automatically be billed for an additional period of the same length. For example, if you select a monthly subscription, you will be billed for an additional month at the beginning of the next month, and then for each month after that, until you cancel your subscription.

(e)           No Refunds; Cancellation. The subscription fee for a Paid Subscription is not refundable. You may cancel your subscription at any time, without fee or penalty, by doing one of the following: (i) emailing info@smartpt123.com and requesting cancellation of your subscription; (ii) if you purchased your Paid Subscription through an Apple ID account, following the instructions available at the following link: https://support.apple.com/en-us/HT202039; or (iii) if you purchased your Paid Subscription with a Google Play account, following the instructions available at the following link: https://support.google.com/googleplay/answer/7018481?hl=en&co=GENIE.Platform%3DAndroid. If you cancel your subscription, cancellation will be effective at the end of the current Subscription Period. After cancellation, you will have continued access to the applicable content and/or services for the remainder of the current Subscription Period, but you will not receive any refund, unless specifically agreed to by Smart PT in writing.

(f)            Free Trials. On certain occasions, Smart PT may offer free trials of its paid services. If we offer you a free trial, the specific terms of the free trial will be stated on the relevant portion of the Sites or the marketing material describing the free trial. If you do not cancel your free trial within the trial period set out in the terms of the free trial, it will automatically convert to a Paid Subscription. This means that we (or the app store that you use to download our App) will charge your payment card for the applicable subscription fee once your free trial period ends and we (or the app store that you use to download our App) will continue charging you for each recurring Subscription Period until you cancel the subscription. You may cancel your subscription at any time by following the process described above. The free trial offer terms will present the details of the free trial and the Paid Subscription that will result if you do not cancel.

(g)           Accuracy of Pricing & Other Site Information. Smart PT strives to be as accurate as possible and eliminate errors on the Sites. However, there may be information on the Sites that contains typographical errors, inaccuracies, or omissions relating to pricing, promotions, offers, and/or trials. We reserve the right to correct any such errors, inaccuracies, or omissions and to change or update information on the Sites at any time and without prior notice (including after you have purchased a Paid Subscription), at our sole discretion. In the event any errors, inaccuracies, or omissions affect a Paid Subscription you have already purchased, your sole remedy is to cancel your Paid Subscription following the process described above.

6.             LINKS TO EXTERNAL SITES

The Sites may contain links to other websites. We are not responsible for the availability of these external websites nor do we necessarily endorse the activities or services provided by these websites. Under no circumstances are we responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to you or any other person in connection with the use of or reliance on any content, goods, or services available on such external websites.

7.             PRIVACY

We respect your privacy and have taken specific steps to protect it. Your submission of personal information through the Sites is governed by our Privacy Policy available at [https://www.smartpt123.com/privacy].  

8.             USER CONTENT & GRANT OF LICENSE TO SMART PT

(a)           User Content. Certain aspects of the Sites may permit you and/or other users to submit, post, link, share, or otherwise make available information and content (“User Content”). User Content has not necessarily been reviewed or approved by Smart PT.  Therefore, we make no representations or warranties as to the accuracy, reliability, completeness, or timeliness of any User Content. Any views or opinions expressed in User Content belong solely to the respective users who shared the content and not to Smart PT or any Affiliated Parties. Your reliance on any User Content is done entirely at your own risk. You understand and agree that we are not responsible for, and have no liability related to, any User Content, including your reliance on any such content.

(b)          Smart PT’s License to User Content. You will retain ownership and any intellectual property rights in your User Content, but, in exchange for the opportunity to use the Sites and submit, post, link, share, or otherwise make available that User Content, you automatically grant, or warrant that you and/or the owner of such content has expressly granted, Smart PT a royalty-free, perpetual, irrevocable, worldwide, unlimited, nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display your User Content in any media or medium, or any form, format, or forum now known or later developed. We may sublicense these rights through multiple tiers of sublicenses and receive compensation, which we will retain in full, for those sublicenses.

(c)           User Content Not Confidential. User Content is not confidential, and Smart PT has no obligation to keep any such material confidential. Smart PT is at all times free to use any ideas, concepts, know-how, or techniques contained in User Content for any purpose whatsoever, including, without limitation, developing, manufacturing, and marketing products incorporating such User Content. You are responsible for your User Content and acknowledge that once published, we cannot always remove it.

9.             USER CONDUCT

By using the Sites, you agree to not use the Sites in any manner that:

·      Is designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment (including by means of software viruses or any other computer code, files, or programs);

·      Interferes with or disrupts in any way the Sites, operations or services of the Sites, or services connected to the Sites;

·      Infringes any copyright, trademark, trade secret, patent, or other right of any party, or defames or invades the publicity rights or the privacy of any person, living or deceased (or impersonates any such person);

·      Consists of any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

·      Causes Smart PT to lose (in whole or in part) the services of our Internet service providers or other suppliers;

·      Links to materials or other content, directly or indirectly, to which you do not have a right to link;

·      Is false, misleading, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, as determined by Smart PT in our sole discretion;

·      Copies, modifies, creates a derivative work of, reverse engineers, decompiles, or otherwise attempts to extract the source code of the software underlying the Sites or any portion thereof;

·      Violates, or encourages anyone to violate, these Terms, any Additional Terms or any ancillary terms and conditions listed on the Sites, or the Privacy Policy; or

·      Violates, or encourages any person to violate, any applicable local, state, national, or international law, regulation, or order.

Smart PT has the right, but is under no obligation, to monitor, evaluate, and analyze any use of and access to the Sites and/or to remove any User Content from the Sites, for any reason, including to determine compliance with these Terms.

10.          COPYRIGHT & TRADEMARK OWNERSHIP

(a)           Smart PT Content. The Sites and their content, features, and functionality, including, without limitation, information, text, graphics, logos, button icons, images, audio clips, video clips, data compilations, and the design, selection, and arrangement thereof (collectively, the “Smart PT Content”), are the exclusive property of Smart PT, our licensors, or other content suppliers, and are protected by United States and international copyright, trademark, patent and other intellectual property or proprietary rights laws. Smart PT Content may not be used or exploited in any way without our prior written consent.

(b)          Limited License to Use the Sites. We are providing you with access to the Sites pursuant to a limited, non-exclusive, non-sub-licensable, non-transferable, revocable license. You can use the Sites for personal, non-commercial use, and subject to these Terms. This license is available to you as long as you are not barred from the Sites by applicable law and your access is not terminated by us. If these Terms are not enforceable where you are located, you may not use the Sites. Smart PT reserves all right, title, and interest not expressly granted under this license to the fullest extent possible under applicable laws.

(c)           Restrictions on License to Use the Sites. Under this license, you may download information from the Sites and print out a hard copy for your personal, non-commercial use, provided that you keep intact and do not remove or alter any copyright or other notice (e.g., trademark, patent, etc.) contained thereon. Except as otherwise expressly stated herein, you may not modify, copy, distribute, display, reproduce, sell, license, or create derivative works from any Smart PT Content, in whole or in part, including any text, images, audio, and video in any manner, without the prior written authorization of Smart PT or any applicable third party suppliers. Further, without the prior written permission of Smart PT, you may not frame, or make it appear that a third-party site is presenting or endorsing, any of the content of the Sites, or incorporate any intellectual property of the Sites, Smart PT, or any of its licensors into another website or other service.

(d)          Unauthorized Use of Smart PT Content. Any unauthorized use of the Smart PT Content may violate copyright laws, trademark laws, the laws of privacy and publicity, and other applicable laws and regulations. You agree to comply with reasonable written requests from us to help us protect our proprietary and intellectual property rights.

11.          DISCLAIMER OF WARRANTIES

(a)           NO EXPRESS OR IMPLIED WARRANTIES. TO THE FULLEST EXTENT PERMITTED UNDER LAW AND SAVE FOR THE RIGHTS GRANTED TO CONSUMERS UNDER APPLICABLE LAWS, THE SITES AND THE CONTENT ON THE SITES ARE PROVIDED “AS IS.” SMART PT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER TO YOU OR ANY OTHER PERSON RELATING IN ANY WAY TO THE SITES OR THE CONTENT OR COMMUNICATIONS ON THE SITES, OR ANY WEBSITE OR OTHER CONTENT OR SERVICE THAT MAY BE ACCESSIBLE, DIRECTLY OR INDIRECTLY, THROUGH THE SITES, TO THE EXTENT PERMITTED BY LAW. SMART PT DISCLAIMS ALL IMPLIED WARRANTIES THAT THE SITES AND ANY SOFTWARE, CONTENT, SERVICES, AND/OR INFORMATION DISTRIBUTED THROUGH THE SITES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, TIMELY, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SMART PT OR A REPRESENTATIVE OF SMART PT SHALL CREATE ANY WARRANTY.

(b)          NO GUARANTEES. WE DO NOT GUARANTEE THAT THE SITES WILL MEET YOUR REQUIREMENTS OR PRODUCE ANY SPECIFIC OUTCOMES OR RESULTS, OR THAT THEY ARE ERROR-FREE, RELIABLE, WITHOUT INTERRUPTION, OR AVAILABLE AT ALL TIMES. WE DO NOT GUARANTEE THAT THE SERVICES THAT MAY BE OBTAINED FROM THE USE OF THE SITES, INCLUDING ANY SUPPORT SERVICES, WILL BE EFFECTIVE, RELIABLE, AND ACCURATE OR MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT ALL TIMES OR LOCATIONS OF YOUR CHOOSING.

(c)           YOUR RESPONSIBILITIES. FURTHER, SMART PT DOES NOT ENDORSE AND MAKES NO WARRANTY REGARDING THE ACCURACY OR RELIABILITY OF ANY OPINION, INFORMATION, ADVICE, OR STATEMENT ON THE SITES. UNDER NO CIRCUMSTANCES WILL SMART PT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE CONTENT ON THE SITES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE, OR OTHER CONTENT AVAILABLE THROUGH THE SITES. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE, OR OTHER CONTENT ON THE SITES.

(d)          EXCLUSION OF WARRANTIES SUBJECT TO APPLICABLE LAW. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU, DEPENDING ON THE LAWS THAT APPLY.

12.          LIMITATION OF LIABILITY

(a)           LIMITATION OF SMART PT’S LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER LAW, SMART PT WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, OR TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY DAMAGES OR LIABILITIES, INCLUDING DIRECT, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING ANY LOSS OF DATA, REVENUE, OR PROFIT OR DAMAGES ARISING FROM PERSONAL INJURY/WRONGFUL DEATH), ARISING FROM OR RELATING TO YOUR USE OF THE SITES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO DAMAGES ARISING FROM OR RELATING TO: (a) USE OF OR INABILITY TO USE THE SITES, (b) COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS BY THIRD PARTIES, (d) THIRD-PARTY CONTENT MADE AVAILABLE TO YOU THROUGH THE SITES, AND (e) ANY OTHER MATTER RELATING TO THE SITES.

(b)          No Liability Relating to Transmission of Information. In addition, when using the Sites, information will be transmitted over a medium which is beyond the control and jurisdiction of Smart PT and its partners, advertisers, sponsors, or any other Affiliated Parties or third parties mentioned on the Sites. Accordingly, Smart PT assumes no liability for damages arising from or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of the Sites.

(c)           LIMITATION OF LIABILITY SUBJECT TO APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, DEPENDING ON THE LAWS THAT APPLY.

13.          INDEMNIFICATION

You agree to defend (at Smart PT’s option), indemnify, and hold Smart PT and any Affiliated Parties harmless from and against any and all liabilities, claims, damages, losses, costs, and expenses, including attorneys’ fees and costs, arising from or related to your misuse of the Sites or any breach by you of these Terms.  We reserve the right, at our expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in any case, you agree to cooperate with us if and as requested by us in the defense and settlement of such matter. In any case, you agree never to settle any matter for which your indemnification is required without our prior written consent.

14.          DISPUTE RESOLUTION & AGREEMENT TO ARBITRATE

(a)           Dispute Resolution Procedure. By using the Sites, you and Smart PT agree that, if there is any controversy, claim, action, or dispute arising out of or relating to your use of the Sites or the breach, enforcement, interpretation, or validity of these Terms or any part of them (each, a “Dispute”), both parties will first try in good faith to settle such Dispute by providing written notice to the other party describing the facts and circumstances of the Dispute and giving the receiving party thirty (30) days in which to respond to or settle the Dispute. Notice shall be sent to:

·      Notice to Smart PT: You must send notice (1) by email to info@smartpt123.com and (2) by first-class or certified mail to: 8790 19th Street, #224, Alta Loma, CA 91701

·      Notice to You: We will send notice by (1) first class or certified mail to the physical address we have on file for you (if any) and (2) by electronic mail to the email address we have on file for you (if any). If we do not have a physical or email address on file for you, or if we are, for any reason, unable to provide notice via the contact information on file, we reserve the right to provide notice by such means as we deem reasonable.

(b)          Dispute Resolution Procedure Condition Precedent to Legal Action. Both you and Smart PT agree that this dispute resolution procedure is a condition precedent that must be satisfied before initiating any litigation or filing any claim against the other party.

(c)           Arbitration. IF ANY DISPUTE CANNOT BE RESOLVED BY THE ABOVE DISPUTE RESOLUTION PROCEDURE, YOU AGREE THAT SUCH DISPUTE WILL BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT TO HAVE A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, COLLECTIVE, OR REPRESENTATIVE CAPACITY. Other rights that you and we would otherwise have in court will not be available or will be more limited in arbitration, including discovery and appeal rights.

(d)          Arbitration by JAMS. All Disputes will be exclusively submitted to Judicial Arbitration and Mediation Services (JAMS) (www.jamsadr.com) for binding arbitration under its rules then in effect (as modified by this agreement to arbitrate), before one arbitrator to be mutually agreed upon by both parties. The arbitration will be conducted in accordance with the JAMS Consumer Arbitration Minimum Standards (https://www.jamsadr.com/consumer-minimum-standards/) if it is determined by JAMS or the arbitrator that these standards are applicable to the Dispute. The location of any hearings will be determined by the applicable JAMS rules, provided that if the claim is for $10,000 or less, you may choose to have the arbitration conducted: (i) solely on the basis of the documents submitted to the arbitrator or (ii) through a hearing in which you may appear by teleconference or videoconference.

(e)           Authority of Arbitrator. The arbitrator, and not any federal, state, or local court or agency, has exclusive authority to resolve any Dispute, including any claim that all or any part of these Terms is void or voidable. For the avoidance of doubt, you and Smart PT agree that the arbitrator has the exclusive power to rule on his or her own jurisdiction, including any objections as to the existence, scope, or validity of this agreement to arbitrate or the arbitrability of any claim or counterclaim. The arbitrator may award (on an individual basis) any relief that would be available in a court. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction.

(f)            Claims Not Subject to Mandatory Arbitration. Notwithstanding the foregoing, in lieu of arbitration, either you or Smart PT may: (i) bring an individual claim in small claims court in the United States consistent with any applicable jurisdictional and monetary limits that may apply and (ii) file an individual claim in a court having jurisdiction to enjoin the infringement or other misuse of its intellectual property rights, provided that any such claim is brought and maintained on an individual basis.

15.          CHOICE OF LAW & CHOICE OF FORUM

These Terms have been made in and will be construed in accordance with the laws of the United States (including federal arbitration law) and the state of California, without giving effect to any conflict of laws principles. Except for disputes or claims properly lodged in a small claims court in the United States, any disputes or claims not subject to the arbitration provision discussed above will be resolved by a court located in San Bernardino County, California, and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. You further agree that any such claims will be brought and maintained solely on an individual basis and not as part of any class, consolidated, collective, or representative capacity, and that you waive your right to a jury trial with respect to any such action. You and Smart PT acknowledge that these Terms evidence a transaction involving interstate commerce. Any arbitration conducted pursuant to these Terms will governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).

16.          MODIFICATION & TERMINATION OF THESE TERMS & THE SITES

(a)           Modification of Terms. We reserve the right to modify these Terms at any time. When we do so, we will update the “Last Updated” date above. In our sole discretion, we may also provide notice of updates to these Terms by other means that we deem reasonable. Regardless of any other notice provided to you (or the lack thereof), by continuing to use the Sites (or any portion thereof) after we post any revisions to these Terms and update the “Effective Date,” you accept these Terms, as modified.

(b)          Termination of Terms. We have the right to immediately terminate these Terms with respect to any user which we, in our sole discretion, consider to be using the Sites in an unacceptable manner, which includes any breach by you of these Terms. The following provisions will survive the termination of these Terms: This section and Sections 2(c) (Assumption of Risks), 8 (USER CONTENT & GRANT OF LICENSE TO SMART PT), 10 (COPYRIGHT & TRADEMARK OWNERSHIP) (excluding the license granted to you), 11 (DISCLAIMER OF WARRANTIES), 12 (LIMITATION OF LIABILITY), 13 (INDEMNIFICATION), 14 (DISPUTE RESOLUTION & AGREEMENT TO ARBITRATE), 15 (CHOICE OF LAW & FORUM), and 17 (MISCELLANEOUS); and any other provisions of these Terms that, either explicitly or by their nature, must remain in effect even after termination of these Terms.

(c)           Changes to the Sites. We also may change, restrict access to, suspend, or discontinue the Sites, or any portion of the Sites, at any time and at our sole discretion, with or without notice. You understand, acknowledge, and agree that Smart PT will not be liable to you or to any third party for any such termination, modification, suspension, or discontinuance of the Site.

17.          MISCELLANEOUS TERMS

(a)           Interpretation. In these Terms, the words “include,” “includes,” and “including” are used in an illustrative sense and do not limit the generality of the language preceding such term. Titles and headings to sections are for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of these Terms. Any limited or specific disclaimers or limitations of liability in these Terms do not limit the effect, forth, or breadth of any other disclaimers or limitations of liability in these Terms.

(b)          No waiver. Our failure to act if you or other users breach these Terms does not waive our right to act with respect to a subsequent or similar breach or breaches. If Smart PT does not exercise or enforce any legal right or remedy which is contained in these Terms (or which Smart PT has under any applicable law or regulation), such action or inaction will not waive Smart PT’s rights or remedies, which will still be available to Smart PT.

(c)           Severability. If a court or tribunal having competent jurisdiction holds that any provision of these Terms is invalid, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect.

(d)          Entire Agreement. These Terms and any Additional Terms set forth the entire understanding and agreement between us with respect to your use of the Sites.

(e)           Assignment. You may not assign, transfer, or sublicense any of your rights or obligations under these Terms without our express prior written consent. We may assign, transfer, or sublicense any or all of our rights or obligations under these Terms without restriction or notice.

(f)            No Relationship. These Terms do not, and will not be construed to, create any partnership, joint venture, patient-provider, employer-employee, partner-agent, or franchisor-franchisee relationship between you and Smart PT.

(g)           Notice to California Residents. You may reach Smart PT at the contact information provided below in the “CONTACT US” section. California residents may also reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

(h)          Apple iOS Terms. If you are accessing or using the App through an Apple device, you acknowledge and agree to the following additional terms and conditions:

(i)             These Terms form an agreement between us and you, and Apple, Inc. (“Apple”) is not a party to such agreement. However, Apple and its subsidiaries are third-party beneficiaries of these Terms. As such, Apple and its subsidiaries may enforce these Terms against you following your acceptance of these Terms.

(ii)             Apple has no obligation whatsoever to provide any maintenance and support services with respect to the App.

(iii)          Apples makes no warranty about the App and disclaims any warranty to the fullest extent permitted by law.

(iv)          Subject to these Terms, we, not Apple, are responsible for addressing any of your claims or of any third party relating to the App or your possession and/or use of the App. Apple is in no way responsible for the investigation, defense, settlement, or discharge of any claim by a third party that the App or your possession and use of the App infringes that third party’s intellectual property rights.

(v)            You represent and warrant that you are not located in a region subject to a U.S. government embargo or designated by the U.S. government as a “terrorist supporting” region and that you are not listed on any U.S. government list of prohibited or restricted parties.

(vi)           When using the App, you will comply with any and all third-party terms applicable to any platform, website, technology, or service that interacts with the App.

(vii)         These Terms incorporate and will be interpreted in harmony with any other applicable terms that we are contractually required by Apple under the Apple Developer Program License Agreement (the current version of which is available at https://developer.apple.com/support/terms/apple-developer-program-license-agreement/#S2-EXD) to make binding on you in connection with your use of the App.

(i)            Google Play Terms. If the App is provided to you through Google Inc. (Google Inc. together with all of its affiliates, “Google”) Google Play, you acknowledge and agree to the following additional terms and conditions:

(i)             Google is not responsible for providing support services for the App.

(ii)            These Terms incorporate and will be interpreted in harmony with any other applicable terms that we are contractually required by Google under the Google Play Developer Distribution Agreement (the current version of which is available at https://play.google.com/about/developer-distribution-agreement.html) to make binding on you in connection with your use of the App. However, if any of these Terms conflict with the terms and conditions of the Google Play Developer Distribution Agreement, the Google Play Developer Distribution Agreement will prevail over these Terms.

18.          CONTACT US

If you have any questions, comments, or concerns about these Terms, please contact us at:

MAILING ADDRESS: 8790 19th Street, #224, Alta Loma, CA 91701

EMAIL ADDRESS: info@smartpt123.com

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