Fire Smarts Customer Agreement
Important: I agree to pay the amount agreed and not to cancel this transaction with my bank or Credit Card Company. I will contact Fire Smarts support to resolve any problem with my order. I understand that Fire Smarts may initiate a collection and submit a negative report to Consumer Credit Reporting agencies. Credit Card Fraud is a criminal offense in any country. I UNDERSTAND THAT THE PROGRAM IS NOT JUST A SOFTWARE PACKAGE AND THAT NOT LOGGING INTO THE SOFTWARE DOES NOT VOID ANY PART OF THE AGREEMENTS.
Universal Terms for Fire Smarts Software, Products and Services (herein referred to as “Products”) below…
This Agreement (“Agreement”) is by and between Fire Smarts and/or its subsidiaries and agents (“Fire Smarts”) an Arizona LLC and You, Your heirs, agents, successors and assigns (“You”), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of your use of Fire Smarts software (“Software”), Products (“Products”) and services (“Services”) and explains Fire Smarts’s obligations to you and your obligations to Fire Smarts in relation to the Software, Products and Services You purchase.
This Agreement as well as any additional Fire Smarts policies, together with all modifications thereto, constitute the complete and exclusive agreement between you and Fire Smarts concerning your use and purchase of Fire Smarts’s Products, and supersede and govern all prior proposals, agreements, and/or other communications. All Fire Smarts policies and agreements specific to particular Products are incorporated herein and made part of this Agreement by reference. By purchasing Fire Smarts’s Products, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which Fire Smarts may establish from time to time, and any agreements that Fire Smarts is currently bound by or will be bound by in the future. You may view the latest version of this Agreement online.
In addition to transactions entered into by you on your behalf, you also agree to be bound by the terms of this Agreement for transactions entered into on your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account you’ve established with Fire Smarts, whether or not the transactions were in your behalf.
The General Terms in Section apply to all customers of Fire Smarts.
GENERAL TERMS APPLICABLE TO ALL SOFTWARE PRODUCTS AND SERVICES
1. TERM OF AGREEMENT; MODIFICATIONS.
You agree that Fire Smarts may modify this Agreement and the Services from time to time. You agree to be bound by any changes Fire Smarts may reasonably make to this Agreement when such changes are made. If you have purchased Products from Fire Smarts, the term of this Agreement shall continue in full force and effect as long as you take advantage of and use the Software and/or Products and Services. In the event you terminate your usage, Fire Smarts will not refund any amounts you have paid. You agree that Fire Smarts shall not be bound by any representations made by third parties who you may use to purchase Services from, and that any statement of a general nature, which may be posted on Fire Smarts’s Web site or contained in Fire Smarts promotional materials, will not bind Fire Smarts in any way. Fire Smarts may, at times, offer certain promotions with different charges and features. You agree that you will be responsible for notifying Fire Smarts IN WRITING TO THE SUPPORT SUITE should you desire to terminate your use of Fire Smarts services. Messages left in voice mail boxes or verbal conversations do not qualify as notifications to Fire Smarts. Notification of Your intent to terminate must be provided in writing to Fire Smarts no earlier than 10 days prior to your billing date but no later than three days prior to your billing date. Any failure to participate in any portion of the program and/or activities does not entitle participant to an extension of the program nor does it entitle the participant to any refunds of any program fees paid. Program contents and materials are subject to change without notice. Fire Smarts at its sole discretions may change, add, and/or the materials, topics, media, speakers, or experts described and/or change, substitute, add to or schedule differently and teleconference calls or training described. A change to any of the above does not entitle the participant to a refund of any sort. I UNDERSTAND THAT THE PROGRAM IS NOT JUST A SOFTWARE PACKAGE AND THAT PARTICIPANT NOT LOGGING INTO THE SOFTWARE OR WEBSITE DOES NOT VOID ANY PART OF THE AGREEMENTS NOR AUTOMATICALY QUALIFY FOR ANY REFUNDS.
2. ACCURATE INFORMATION.
4. ACCOUNT SECURITY.
You agree you are entirely responsible for maintaining the confidentiality of your customer number/login, password, credit card number, and security key (collectively, the “Account Access Information”). You agree you are entirely responsible for any and all activities that occur under your account. You agree to notify Fire Smarts immediately of any unauthorized use of your account or any other breach of security. You agree Fire Smarts will not be liable for any loss that you may incur as a result of someone else using your Account Access Information, either with or without your knowledge. You further agree you could be held liable for losses incurred by Fire Smarts or another party due to someone else using Your Account Access Information. For security purposes, you should keep Account Access Information in a secure location and take precautions to prevent others from gaining access to Your Account Access Information. You agree that you will be responsible for all activity in your account, whether initiated by you, or by others on your behalf, or by any other means. Fire Smarts specifically disclaims liability for any activity in your account, whether authorized by you or not.
5. NO UNLAWFUL CONDUCT OR IMPROPER USE.
As a condition of your use of Fire Smarts’s Products, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and you agree to comply with any applicable local, state, federal and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid to Fire Smarts if, for any reason, Fire Smarts takes corrective action with respect to Your improper or illegal use of its Services.
Fire Smarts reserves the right at all times to disclose any information as Fire Smarts deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Fire Smarts sole discretion.
If you have purchased Products, Fire Smarts has no obligation to monitor your use of the Services. Fire Smarts reserves the right to review your use of the Services and to cancel the Services in its sole discretion. Fire Smarts reserves the right to terminate your access to the Services at any time, without notice, for any reason whatsoever. Fire Smarts reserves the right to terminate Services if Your usage of the Services results in, or is the subject of, legal action or threatened legal action, against Fire Smarts or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit.
Except as set forth below, Fire Smarts may also cancel your use of the Services, after thirty (30) days, if you are using the Services, as determined by Fire Smarts in its sole discretion, in association with spam or morally objectionable activities. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the United States and/or foreign territories in which You conduct business; activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; and activities designed to harm or use unethically minors in any way. Notwithstanding anything to the contrary herein, in the event Fire Smarts cancels Your Services during the first thirty (30) days after you purchase the Services, You will receive a refund of any fees paid to Fire Smarts in connection with the Services being canceled. In the event Fire Smarts deletes Your Services because they are being used in association with spam or morally objectionable activities, no refund will be issued. You agree You will not be entitled to a refund of any fees paid to Fire Smarts if, for any reason, Fire Smarts takes corrective action with respect to Your improper or illegal use of its Services.
6. NO SPAM; LIQUIDATED DAMAGES.
You agree Fire Smarts may immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then You agree to pay Fire Smarts liquidated damages of $1 US for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your account, otherwise You agree to pay Fire Smarts’s actual damages.
7. INTELLECTUAL PROPERTY.
You agree that Fire Smarts or its licensor holds all rights, title and interest in all Products and all intellectual property, including other rights related to intangible property, unless otherwise indicated. You acknowledge that no title or interest in such Intellectual Property Rights is being transferred to you and you agree to make no claim of interest in any such Product. You understand and agree that all content and materials contained in this Agreement, other policies, the Fire Smarts Web site, and any affiliated Web sites, materials, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as, any other applicable proprietary rights and laws, and that Fire Smarts or its licensor expressly reserves its rights in and to all such content and materials. You further understand and agree that you are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of Fire Smarts or its licensor. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to you or conferred upon you by this Agreement or otherwise.
This Site contains or may use proprietary software. You shall have no rights to this proprietary software and related documentation, or any enhancements or modifications thereto, provided to you in order to access the Site (“Site Software”). Unless otherwise specified in a purchase agreement for any Fire Smarts Software products, you may not copy, distribute, sell, decompile, disassemble, modify, reverse engineer, create derivative works from or otherwise reduce the Fire Smarts Software or the Site Software.
8. USE OF FIRE SMARTS SOFTWARE.
If you have licensed software and services from Fire Smarts, Fire Smarts grants You a limited, non-exclusive, nontransferable and non-assignable, non-sharing license to use the software and materials for such purposes as are ordinary and customary. You are free to use the software on any computer, but not on two or more computers at one time. You agree to not alter or modify the Software. You agree you are not authorized to combine the Software with any other software program, create derivative works based upon the Software, nor are you authorized to integrate any plug-in or enhancement which uses or relies upon the Software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code. Fire Smarts reserves all rights to the Software and materials. The Software, materials and any copies you are authorized to make are the intellectual property of Fire Smarts. The source code and its organization are the exclusive property of Fire Smarts and the Software is protected by copyright, including United States Copyright Law. Except as expressly provided for in this section, this Agreement does not grant you any rights in the Software and all rights are reserved by Fire Smarts. Fire Smarts provides this Software, services, and materials “as is” without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.
9. FEES AND PAYMENT.
As consideration for the Products purchased by you and provided to you by Fire Smarts, You agree to pay Fire Smarts at the time you order. All fees are due immediately and are non-refundable unless otherwise expressly noted, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term. Fire Smarts expressly reserves the right to modify pricing through email notification and/or notice on its Web site. Payment may be made by you by providing either a valid credit card, or using Fire Smarts’s prepaid services such as “paid on site at events” or checks.
If You signed up for a monthly payment plan, Your monthly billing date will be determined based on the day of the month You purchase the Services unless that date falls after the 28th of the month in which case Your billing date will be the 28th of each month.
If for any reason Fire Smarts is unable to charge Your Payment Method for the full amount owed Fire Smarts for the Services provided, or if Fire Smarts is charged a penalty for any fee it previously charged to Your Payment Method, you agree that Fire Smarts may pursue all available remedies in order to obtain payment. If You pay by credit card and if for any reason Fire Smarts is unable to charge Your credit card with the full amount of the Services provided, or if Fire Smarts is charged back for any fee it previously charged to the credit card You provided, You agree that Fire Smarts may pursue all available remedies in order to obtain payment. You agree that among the remedies Fire Smarts may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to you of any Services registered, bought or renewed on your behalf. Fire Smarts reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular Services, including additional costs that it may incur in providing the Services and pass along to You. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, fees incurred by third parties you have elected to use as payment methods, including PayPal, and disputes that require legal services. These charges will be billed to the Payment Method we have on file for you. You may change Your Payment Method at any time by logging into “user profile”.
You agree that you are solely liable for arranging that Your Services are renewed, and that Fire Smarts shall not be liable to you or any third party if it is unable to charge Your Payment Method in order to renew Your Services. While all purchases are processed in US dollars, Fire Smarts may provide an estimated conversion price to currencies other than US dollars. You acknowledge and agree that the pricing displayed during the checkout process is an estimate. Due to potential slight time delays between actual purchase and the payment settlement, the actual price charged may fluctuate. Accordingly, Fire Smarts makes no representations or warranties that the actual price will be the same or substantially similar to the actual price you will pay and you waive any and all claims based upon any discrepancy between the estimate and the actual price.
A. Pay by PayPal
By using Fire Smarts’ pay by PayPal, Inc. (“PayPal”) option (“Pay by PayPal”), You can purchase Fire Smarts Products using PayPal. In consideration for the Products purchased by you and provided to you by Fire Smarts, You agree to allow PayPal to debit the full amount of this transaction from Your PayPal account balance or the Preferred Funding Source You established with PayPal, which is non-refundable. It is your responsibility to keep Your PayPal Account current, and to have available funds in it. You agree that PayPal and Fire Smarts will not be responsible for payments that fail to go through as a result of Your Funding Source no longer existing, or holding insufficient funds. If for any reason PayPal is unable to withdraw the full amount owed for the Services provided, you agree that PayPal and Fire Smarts may pursue all available remedies in order to obtain payment. You agree that if the transaction is returned unpaid, you will pay a service charge of $25.00 or the maximum amount allowed by law, which may be debited from your account by PayPal or charged to Your Preferred Funding Source.
10. REPRESENTATIONS AND WARRANTIES.
You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You represent and warrant that you are 18 years of age or older, or that you have an agent authorized by law to represent you who is 18 years of age or older who is entering into this Agreement on Your behalf. You warrant that each action you make is being done so in good faith and that you have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party’s trademark or trade name.
11. LIMITATION OF LIABILITY.
IN NO EVENT SHALL FIRE SMARTS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLDUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE PRODUCTS OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF FIRE SMARTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, Fire Smarts’s liability is limited to the full extent permitted by law. You agree that in no event shall Fire Smarts’s maximum aggregate liability exceed the total amount paid by you for the particular Products in dispute purchased from Fire Smarts.
12. DISCLAIMER OF WARRANTIES.
Fire Smarts expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Services are provided on an “As Is” and “As Available” basis. Fire Smarts makes no warranty that its services will meet your requirements, or that the services will be uninterrupted, timely, secure, or error free, or that defects will be corrected. Fire Smarts does not warrant, nor make any representations regarding the use, or results of, any of the services it provides, in terms of their correctness, accuracy, reliability, or otherwise. Some jurisdictions do not allow the disclaimer of implied warranties, in which event that foregoing disclaimer may not apply to you.
You agree to defend, indemnify and hold harmless Fire Smarts and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys’ fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, software or services with Fire Smarts whether or not on Your behalf, and whether or not with Your permission) use of the Software or Services You purchased from Fire Smarts or Your breach of this Agreement or incorporated agreements and policies. In addition, You agree to indemnify and hold Fire Smarts harmless from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets. This indemnification is in addition to any indemnification required of you elsewhere. Should Fire Smarts be notified of a pending law suit, or receive notice of the filing of a law suit, Fire Smarts may seek a written confirmation from you concerning your obligation to indemnify Fire Smarts. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that Fire Smarts shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify Fire Smarts of any such claim promptly in writing and to allow Fire Smarts to control the proceedings. You agree to cooperate fully with Fire Smarts during such proceedings. You agree to cooperate fully with Fire Smarts during such proceedings. You agree You will not be entitled to a refund of any fees paid to Fire Smarts if, for any reason, Fire Smarts takes corrective action with respect to Your improper or illegal use of its services. You also agree that if Fire Smarts is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a Traffic Facts account of Yours with Fire Smarts , that Fire Smarts , in its sole discretion, may take whatever action Fire Smarts deems necessary regarding further modification, assignment of and/or control of your account to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
14. GOVERNING LAW, VENUE; WAIVER OF TRIAL BY JURY.
This agreement shall be deemed entered into in the State of Arizona. You agree that the laws and judicial decisions of Maricopa County, Arizona, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any action relating to or arising out of this Agreement shall be brought in the courts of Phoenix, Arizona. For the adjudication of disputes concerning the use of any domain name registered with Fire Smarts, You agree to submit to jurisdiction and venue in the U.S. District Court for the District of Arizona located in Phoenix, Arizona. You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.
You agree that all notices (except for notices concerning breach of this Agreement) from Fire Smarts to you may be posted on our Web site. Notices concerning breach will be sent either to the email or postal address you have on file with Fire Smarts. In either case, delivery shall be deemed to have been made five (5) days after the date sent.
Notices from You to Fire Smarts shall be made either by email, sent to the address provided on the Fire Smarts Web site, or first class mail to Fire Smarts’s address at:
Fire Smarts LLC, 70 Val Vista Dr. #181, Gilbert, AZ 85296
The headings in the Agreement are descriptive only and in the event of a conflict between a heading and the underlying terms of this Agreement, the terms of this Agreement shall control.
17. ENTIRE AGREEMENT.
You agree that this Agreement including the policies and agreements it refers constitute the complete and only Agreement between You and Fire Smarts regarding the Services contemplated herein.
You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
The failure of Fire Smarts to enforce any of the provisions within this Agreement or its incorporated agreements and policies against you or others shall not be construed to be a waiver of the right of Fire Smarts thereafter to enforce such provisions.
20. FORCE MAJEURE.
Fire Smarts will make every effort to keep its Web site and Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold Fire Smarts liable for any of the consequences of such interruptions and no refunds shall be warranted.
21. NO THIRD PARTY BENEFICIARIES.
Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
22. ATTENDENCE AT EVENTS OR CALLS/MEETINGS.
I agree that I am freely and willingly participating in the Fire Smarts seminars, calls, web conferences, meetings, and do hereby grant Fire Smarts and/or its agent (herein Fire Smarts) or designated entities permission to record and duplicate recordings of any and all, but not limited to, conference presentations, webcasts, teleseminars, testimonials, questions and answers, etc.
I understand that I will not receive any compensation either financially or in any other form, neither implied nor inferred, from the sale of these recordings, regardless of the product format (audio, visual, written, etc.) and further authorize the use of myself, voice and/or likeness on the aforementioned.
Any funds from the sale of these recordings past, future, or present will be exclusively for the benefit Fire Smarts. Fire Smarts shall own all rights to any and all such works and may make any use or nonuse of such works without payment or obligation to the attendee or customer.