Terms of Service
Last Updated: December 22nd, 2017
Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you do not understand these Terms or do not agree to be bound by these Terms, then you may not access or use the Site, the App or any Services.
IMPORTANT: WHEN YOU AGREE TO THESE TERMS, YOU AGREE TO RESOLVE YOUR DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION, UNLESS YOU OPT-OUT OF ARBITRATION WITHIN 30 DAYS OR THE DISPUTE IS EXCLUDED FROM ARBITRATION, AS FURTHER DESCRIBED IN THE DISPUTE RESOLUTION SECTION BELOW. PLEASE REVIEW THE DISPUTE RESOLUTION SECTION BELOW FOR DETAILS ON ARBITRATION AND OPTING-OUT.
PHYSICAL ACTIVITY NOTICE
THE SERVICES MAY INCLUDE FEATURES THAT PROMOTE PHYSICAL ACTIVITY. CONSIDER THE RISKS INVOLVED AND CONSULT WITH YOUR MEDICAL PROFESSIONAL BEFORE YOU OR YOUR CHILD (AS DEFINED BELOW) ENGAGE IN ANY PHYSICAL ACTIVITY. SPEEDSMITH IS NOT RESPONSIBLE OR LIABLE FOR ANY INJURIES OR DAMAGES YOU OR YOUR CHILD MAY SUSTAIN FROM USE OF, OR INABILITY TO USE, THE FEATURES OF THE SERVICES.
To make these Terms easier to read, the services we offer through the Site and the App are collectively called the “Services.” All references to “SpeedSmith” shall refer to Black Brass, Inc., a Delaware corporation dba SpeedSmith. The terms “you,” “your,” and “yours” refer to you, the visitor to the Site, the App or user of the Services. The terms “SpeedSmith,” “we,” “us,” and “our” refer to SpeedSmith, and its successors and assigns. The term “Site Materials” means all materials that are part of the Site and the App (including past, present and future versions), including, without limitation: graphics; layout; text; images; music, audio and/or video; designs; advertising copy; works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Site, the App, or any Services, logos; domain names; trade names and marks; service marks and trade identities; any and all copyrightable material (including source and object code); the “look and feel” of the Site and the App; the compilation, assembly and arrangement of the materials of the Site and the App; and all other materials related to the Site and the App; provided however, Site Materials shall not include any User Content (as defined below) that you upload to the Site, the App or the Services. “User Content” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available that you, or any other User, provide to be made available through the Services (including Child Data (as defined below).
Subject to the terms and conditions set forth in these Terms, SpeedSmith grants you a non-exclusive, non-transferable, limited license to use and display the Site, the App and/or any Services for your personal or internal non-commercial use and not for resale or further distribution (“Limited License”). Other than the rights granted by the Limited License, you agree not to use the Site, the App or any Site Materials for any other use or purpose.
You shall not, and shall not attempt to, copy or distribute the Site, the App, the Site Materials and/or any Services to any other person unless specifically permitted by SpeedSmith. Except for the Limited License granted to you by SpeedSmith pursuant to these Terms, SpeedSmith expressly retains all right, title, and interest in and to the Site, the App (and all features and functionality of the Site and the App), the Site Materials and any Services, including all related Intellectual Property Rights (as defined below). The Site, the App and the Site Materials are protected by applicable intellectual property laws, including United States copyright law and international treaties. Unless otherwise specified in writing on the Site, the Site, the App, Site Materials and the Services are owned, controlled or licensed by SpeedSmith and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties. The term “Intellectual Property Rights” means collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide including, without limitation, moral rights and similar rights.
SpeedSmith™ and the SpeedSmith logo are trademarks of SpeedSmith. All rights are reserved. All other trademarks and service marks appearing on the Site, the App or in any Services are the property of their respective owners, including, in some instances, SpeedSmith. All rights are reserved. SpeedSmith's trademarks and trade dress may not be used in connection with any product or service that is not SpeedSmith’s, in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits SpeedSmith. Use of any of our trademarks, service marks or names as “metatags” on other web sites is prohibited. You may not display our Site, App or Site Materials in frames or “in-line links” without express written permission from SpeedSmith. You agree not to encumber, license, modify, publish, copy, sell, transfer, transmit or in any way exploit, any of the Site, the App or the Site Materials, nor will you attempt to do so. You agree not to copy, redistribute, publish or otherwise exploit material you download from the Site, the App and/or the Services, except as expressly permitted in these Terms, without the express prior written permission of SpeedSmith and the owner of such Site Materials (from whom you are solely responsible for obtaining permission). You further agree and acknowledge that you shall not acquire any ownership rights (including any rights to license such material) by downloading material from the Site, the App and/or Services.
Certain portions of the Services may be subject to additional terms and conditions specified by us from time to time elsewhere on the Services; your use of such portions of the Services is subject to those additional terms and conditions. Our products have individual warranties, and our Terms of Sale apply to product purchasing, and the placement and processing of orders for our products placed on our Site. In the event of a conflict between the additional terms or other agreements and any provision in these Terms, the additional terms will prevail, but only with respect to the portion of the Services to which the additional terms apply.
Changes to Terms or Services
We may update the Terms at any time, at our sole discretion. If we do so, we will notify you either by posting the updated Terms on the Site, the App or through other communications. It is important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you do not agree to be bound by the updated Terms, then you may not use the Services anymore.
SpeedSmith will have the right, in its sole discretion, to determine the content, appearance, design, functionality and all other aspects of the Site, App and Services. Because our Services are evolving over time, SpeedSmith reserves the right to modify, change, suspend or discontinue, temporarily or permanently, all or a part of the Site, the App or any part of any Services at any time without notice, including, without limitation, the availability of any feature or content. SpeedSmith may also impose limits on certain features and Services or restrict your access to parts or all of any Services without notice or liability to you. SpeedSmith will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site, the App or any Services.
SpeedSmith does not provide you with the equipment to access the Site, the App or any Services. You are responsible for all fees charged by third parties to access the Site, the App or any Services (e.g., charges by internet service providers). You understand that the Internet is an unsecure medium and some websites may be hostile and attempt to infect your computer system or software, or trick you into divulging personal information for illegal purposes. Use of the Site, the App and/or Services is at your own risk and SpeedSmith is not responsible for (i) any loss to you caused during or as a result of your visit to a third party web site; (ii) any fraudulent e-mail or any other fraudulent activity on the Internet; or (iii) any adverse consequences resulting from any virus, spyware or malware infecting your computer system, including without limitation, any loss of data, damage to your computer system, disclosure of personal information, identity theft or other adverse consequence. You understand that browser protection, anti-spyware, and anti-virus software can reduce risk on the Internet, but not eliminate it. You agree to take appropriate measures to protect yourself from web and e-mail fraud. You should not visit the Site or any third party websites if you are not comfortable that your computer system will be able to detect and protect itself from malware and that you will be able to protect yourself from fraud on the Internet.
Who May Use the Services?
You may use the Services only if you are 18 years or older and capable of forming a binding contract with SpeedSmith and are not barred from using the Services under applicable law.
Registering for the Services
Registration and Your Information. If you want to use certain features of the Services, you will have to create an account (“Account”) and become a registered user (“User”). You can do this via the App or through your account with certain third-party social networking services such as Facebook or Twitter (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information, such as your name and email address, and other information that your privacy settings on your SNS Account permit us to access.
Accuracy of Account Information. It is important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you do not, we reserve the right to suspend or terminate your Account. You agree that you will not disclose your Account password to anyone and you will notify us immediately of any unauthorized use of your Account. You are responsible for all activities that occur under your Account, whether or not you know about them.
How the Services Work.
General. You, as a parent or legal guardian of a child under the age of 18 (your “Child”), can use the Services to measure your Child’s foot, purchase shoes for your Child, and track your Child’s foot growth.
Child Data. As part of the Services, you can use the App to submit the following data regarding your Child: (i) name; (ii) images of your Child’s feet; (iii) foot size; (iv) birthday and (v) gender (collectively, “Child Data”). You acknowledge and agree that SpeedSmith may use the Child Data to provide the Services to you and, on an anonymous or aggregate basis, to improve our products and services or for internal analysis and research. You represent and warrant that you are the parent or legal guardian of the Child to whom the Child Data pertains. You also represent and warrant that neither provision of the Child Data by you nor any use of the Child Data by SpeedSmith in accordance with these Terms will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Sharing. The Services may enable you to post information publicly on your SNS Account at your request. YOU ACKNOWLEDGE SOLE RESPONSIBILITY FOR AND ASSUME ALL RISK ARISING FROM ANY INFORMATION YOU SHARE. SPEEDSMITH IS NOT RESPONSIBLE FOR ANY CONSEQUENCES OF ANY USE OR DISCLOSURE OF YOUR INFORMATION, INCLUDING CHILD DATA, BY YOU OR ANY THIRD PARTIES TO WHOM YOU PROVIDE SUCH INFORMATION.
Purchases. You may be able to purchase products through the Services. Such purchases will be governed by our Terms of Sale, available at http://www.speedsmith.co/pages/terms-of-sale.
User Content and User Content Rights.
User Content Ownership, Responsibility and Removal. SpeedSmith does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, SpeedSmith and its licensors (including, without limitation, other Users) exclusively own all right, title and interest in and to the Services and Site Materials, including all associated Intellectual Property Rights. You acknowledge that the Site, the App, the Services and Site Materials are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, the App, the Services and Site Materials.
Rights in User Content Granted by You. By making any User Content available through the Services you hereby grant to SpeedSmith a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to host, use, transmit, copy, display, modify, distribute, reproduce, disclose, archive, store, publish, broadcast, make derivative works from or otherwise exploit in any manner whatsoever your User Content in connection with operating and providing the Services to you and to other Users and, on an anonymous or aggregate basis, to improve our products and services or for internal analysis and research. You further agree that SpeedSmith is free to use any ideas, information, concepts, know-how or techniques contained in any User Content you send to the Site, utilize in any Services or forward to SpeedSmith, for any purposes whatsoever, including, without limitation, developing, producing, marketing and otherwise exploiting products and/or Services using such User Content, and without remuneration to you of any kind.
Responsibility for User Content. You are solely responsible for all of your User Content. You represent and warrant that you own all your User Content, or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by SpeedSmith on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
No Obligation to Protect User Content. SpeedSmith has no obligation to monitor or enforce your Intellectual Property Rights to your User Content but has the right to protect and enforce its and its licensees' licensed rights to your User Content, including, without limitation, by bringing and controlling actions in your name and on your behalf (at SpeedSmith’s cost and expense, to which you hereby consent and irrevocably appoint SpeedSmith as your attorney-in-fact, with the power of substitution and delegations, which appointment is coupled with an interest).
Removal of User Content by SpeedSmith. SpeedSmith may delete, move, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice to you and without liability; provided, however, that SpeedSmith reserves the right to treat User Content on the Site, or on certain portions of the Site, as content stored at the direction of users for which SpeedSmith will not exercise editorial control except to enforce the rights of third parties and these Terms when violations are brought to SpeedSmith’s attention. Such User Content posted at your or other users' direction need not, however, be maintained on the Site of the App by us for any period of time and you will not have the right, once posted, to access, archive, maintain or otherwise use such User Content on the Site or the App. You also agree and understand that SpeedSmith is not obligated to use User Content and that you will not receive any additional consideration or compensation for your User Content or for any exploitation thereof.
Removal of User Content by You. You may remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Treatment of User Content. You agree that the User Content posted by you will be treated as non-confidential and non-proprietary and will not be returned. You should also be aware that submissions of User Content may not be secure, and you should consider this before submitting any information to SpeedSmith.
We respect the intellectual property rights of others, and we ask that you to do the same. It is the policy of SpeedSmith to terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been posted on the Site, are available on the App or any Services in a way that constitutes copyright infringement, please contact SpeedSmith at the address below and provide the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed, (3) a description of where the material that you claim is infringing is located on the Site; (3) your address, telephone number, and email address; (4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
SpeedSmith’s designated agent for notice of copyright infringement can be reached at:
427 N Tatnall St
Wilmington, DE 19801-2230
Phone: (888) 738-5680
Facsimile: (888) 738-5680
Rights and Terms for Apps
Rights in App Granted by SpeedSmith. Subject to your compliance with these Terms, SpeedSmith grants you a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. In addition to the other restrictions set forth in these Terms, except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. SpeedSmith reserves all rights in and to the App not expressly granted to you under these Terms.
App Store Terms. If you use the App on an Apple, Inc. (“Apple”) device, you acknowledge and agree that:
- These Terms are concluded between you and SpeedSmith, and not with Apple, and that, as between SpeedSmith and the Apple, SpeedSmith, is solely responsible for the App.
- Apple has no obligation 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 for such App to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the App to conform to any warranty will be the sole responsibility of SpeedSmith.
- Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (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 or similar legislation.
- In the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, SpeedSmith will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- Apple and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
- You must also comply with all applicable third-party terms of service when using the App.
- You agree to comply with all U.S. and foreign export laws and regulations to ensure that the App and any technical data related thereto and any direct product thereof is not exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
General Prohibitions and SpeedSmith’s Enforcement Rights
You must comply with all applicable laws and all provisions of these Terms when using the Site, the App or any Services. Except as may be expressly permitted by applicable law or authorized by SpeedSmith in writing, you will not, and will not permit anyone else to:
- Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, intimidation or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (vii) is racially, ethnically or otherwise offensive language, use explicit or obscene language or post sexually explicit images or images containing nudity, violence or offensive subject matter; or (viii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services or any individual element within the Site, the App or Services, SpeedSmith’s name, any SpeedSmith trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without SpeedSmith’s express written consent;
- Access, tamper with, or use non-public areas of the Site, the App or the Services, SpeedSmith’s computer systems, or the technical delivery systems of SpeedSmith’s providers;
- Attempt to probe, scan or test the vulnerability of any SpeedSmith system or network or breach any security or authentication measures;
- “deep-link” to the Site, meaning that you will not create, post, display, publish or distribute any link to any page other than the front (home) page of the Site for any purpose;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by SpeedSmith or any of SpeedSmith’s providers or any other third party (including another user) to protect the Site, the App, the Services, the Site Materials or User Content;
- Attempt to access or search the Site, the App, the Site Materials or the Services or download any Site Materials through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by SpeedSmith or other generally available third-party web browsers;
- Use the Site, the App, the Site Materials or the Services, or any portion thereof, for any commercial purpose or in any manner not permitted by these Terms;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, the App or the Services;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site, the App or the Services;
- take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure;
- use the Site, the App, the Services, Content or Site Materials for any purpose except for your own personal use;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Site, the App, the Services or to review or edit any Site Materials or User Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any User Content, at any time and without notice, including, but not limited to, if we, in our sole discretion, consider any User Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We reserve the right to take action against any User who, in our sole discretion, violates these Terms, including without limitation, terminating any User’s access to the Site, the App and or any Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources
The Services and App may contain links to third-party websites or resources. We exercise no control over the third-party products, services, and websites and we are not responsible for their performance, do not endorse them, and you agree SpeedSmith is not responsible or liable for any content, advertising, or other materials available through the third-party products, services, and websites. We provide these links only as a convenience. SpeedSmith shall not be responsible or liable, directly or indirectly, for any damage or loss caused to you by your use of or reliance on any goods or services available through the third-party products, services, and websites or links displayed on such third-party websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Site, the App and/or the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time simply email us at Care@SpeedSmith.co. Upon any termination, discontinuation or cancellation of Services, the following provisions will survive:, IP Rights, Trademarks, User Content and User Content Rights, Rights and Terms for Apps, Warranty Disclaimers, Indemnity, Limitation of Liability, Dispute Resolution, Governing Law, Choice of Forum, General Terms and Feedback.
THE SITE, APP, SITE MATERIALS AND SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING AND EXCEPT THE EXPRESS WARANTIES MADE IN SPEEDSMITH’S TERMS OF SALE, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT ANY PART OF THE SITE, THE APP OR ANY SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, THE APP OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SITE, THE APP, THE SITE MATERIALS AND/OR ANY SERVICES, INCLUDING, WITHOUT LIMITATION, THE FOOT MEASUREMENTS MADE THORUGH THE SERVICES, THE SHOE SIZE TRACKING FOR YOUR CHILD OR ANY RECOMMENDATIONS THAT RESIZING OR REMEASURING OF YOUR CHILD’S SHOE SIZE MAY BE NEEDED. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY SITE MATERIALS.
You shall indemnify, defend and hold harmless SpeedSmith and its shareholders, officers, directors, employees, agents and successors and assigns, from and against any and all claims, actions, proceedings, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees and expenses arising out of or in any way connected with (i) your access to or use of the Site, the App and the Services or Site Materials, (ii) your User Content that you submit, post, transmit or otherwise make available through the Site or any Site Services, including without limitation, the infringement by you of any Intellectual Property Rights of any person or entity or (iii) your violation of these Terms.
Limitation of Liability
NEITHER SPEEDSMITH NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, THE APP, THE SERVICES OR THE SITE MATERIALS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SPEEDSMITH OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL SPEEDSMITH’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, THE APP, THE SERVICES OR THE SITE MATERIALS EXCEED THE GREATER OF AMOUNTS YOU HAVE PAID TO SPEEDSMITH FOR USE OF THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM ARISING OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO SPEEDSMITH, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SPEEDSMITH AND YOU.
Our goal is to provide you with great service, so we’ll try our best to resolve any disagreements that you have with us. If we can’t, then you and we both agree to resolve disputes related to your use of the Services or these Terms (each, a “Claim”) in binding arbitration instead of court, except that (a) a Claim may be brought in small claims court if it qualifies for it and (b) either party may bring suit in court to enjoin the infringement or other misuse of intellectual property rights.
- What is arbitration? Arbitration does not involve a judge or jury. Instead, a neutral person (the “arbitrator”) hears each party’s side of the dispute, and makes a decision that is finally binding on both parties. The arbitrator can award the same relief as a court could award, including monetary damages. While court review of an arbitration award is limited, if a party fails to comply with the arbitrator’s decision, then the other party can have the arbitration decision enforced by a court. If for any reason a Claim proceeds in court rather than in arbitration, you and we each waive any right to a jury trial.
- Can a Claim be part of a class action or similar proceeding? No. You agree to resolve your Claims with us solely on an individual basis, and not as part of a class, representative or consolidated action. We agree to do the same.
- What rules apply in the arbitration? The arbitration will be conducted under the American Arbitration Association (“AAA”) Consumer Arbitration Rules (the “AAA Rules”). The AAA Rules are available at www.adr.org or by calling 1-800-778-7879.
- How will the arbitration be conducted? How much does it cost? The arbitration will be conducted by the AAA or a comparable arbitration body in the event the AAA is unable to conduct the arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Unless the arbitrator finds your Claim frivolous, we’ll pay for all filing, administration and arbitrator fees if your Claim is for less than $10,000, and we won’t seek our attorneys’ fees and costs if we prevail in the arbitration. The arbitration may be conducted in writing, remotely (e.g., by videoconference) or in-person in the county where you live (or at some other location that we both agree to).
- How do I start an arbitration proceeding? To begin an arbitration proceeding against us, send a letter requesting arbitration and describing your Claim to 340 S Lemon Ave #8869 Walnut, CA 91789. If we request arbitration against you, we will give you notice at the email address or street address you provided.
- INSTRUCTIONS FOR OPTING-OUT OF ARBITRATION: If you don’t want to agree to arbitrate your Claims as explained above, then you can opt-out of this arbitration agreement by notifying us of your decision in writing at 340 S Lemon Ave #8869 Walnut, CA 91789. You must opt-out within 30 days of the date you first agree to these Terms or any updated Terms.
This Dispute Resolution section only applies to Claims between us and individual consumers, and is governed by The Federal Arbitration Act.
When you visit the Site, App or send e-mails to SpeedSmith, you are communicating with SpeedSmith electronically. You consent to receive communications from SpeedSmith electronically. SpeedSmith may communicate with you by e-mail or by posting notices on the App or the Site. You agree that all agreements, notices, disclosures and other communications that SpeedSmith provides to you electronically satisfy any legal requirement that such communications be in writing. In addition, as part of the Services, SpeedSmith may send you notifications (e.g. “remeasure your child’s foot”). You hereby consent to receive such notifications as part of the Services.
You agree that these Terms combined with your act of using the Site, the App and/or any Services have the same legal force and effect as a written contract with your written signature and satisfy any laws that require a writing or signature, including any applicable statute of frauds. You further agree that you shall not challenge the validity, enforceability or admissibility of these Terms on the grounds that it was electronically transmitted or authorized. In addition, you acknowledge that you have had the opportunity to print these Terms.
These Terms are governed by the laws of the State of California without regard to its conflict of law provisions.
Choice of Forum
The exclusive jurisdiction for all Claims that are not subject to arbitration, including any Claims brought on behalf of a company or other legal entity, will be the state and federal courts located in the Northern District of California, and you and SpeedSmith each waive any objection to jurisdiction and venue in such courts.
Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between SpeedSmith and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between SpeedSmith and you regarding the Site, the App, the Services and the Site Materials. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without SpeedSmith’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. SpeedSmith may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices. Any notices or other communications provided by SpeedSmith under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Site, the App or the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Waiver of Rights. SpeedSmith’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of SpeedSmith. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us Care@SpeedSmith.co. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
If you have any questions about these Terms or the Services, please contact SpeedSmith at Care@SpeedSmith.co.