Terms and Conditions for the Sale of Services and Use of Equipment

1. IMPORTANT DISCLOSURES

              THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. 

THESE TERMS AND CONDITIONS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. 

BY PLACING AN ORDER FOR SERVICES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.  IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU AFFIRM YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS AND CONDITIONS.

YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM SMART START IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH SMART START, OR (iii) YOU ARE A MINOR AND DO NOT HAVE PARENTAL CONSENT, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THE WEBSITE OR APP OR ANY OF SMART START’S EQUIPMENT OR SERVICES BY APPLICABLE LAW.

2. Defined Terms; Conditions; Privacy Policy and Account Terms.

(a)  Defined Terms. These terms and conditions (these “Conditions“) are offered to you by 1A Smart Start, LLC (referred to as “us“, “we“, or “our” as the context may require).  The Conditions apply to the purchase and sale of products and services (the “Services”).  We offer Services at one of our service centers (a “Service Center”), through our web site www.smartstartinc.com or other web site we maintain or is maintain on our behalf relating to the Services (the “Site”) or through any smart phone app through which we provide Services to you (the “App”) (the Site and the App are referred together as the “Site/App“).   Other defined terms appear below in these Conditions in bold type.

(b)  Conditions. These Conditions are subject to change by us without prior written notice at any time, in our sole discretion. Any changes to the Conditions will be in effect as of the “Last Updated Date” referenced on the Site/App or other document provided to you. You should review these Conditions prior to purchasing any product or Services that are available through this Site/App. Your continued use of the Services after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.

(c)  Privacy Policy.  You should also carefully review our privacy practices (the “Privacy Policy”) before placing an order for Services.  The Privacy Policy can be accessed at this link and is available on the Site and the App.

(d)  Account Terms.  Some of our Services may have additional terms and conditions associated with a particular Services (the “Account Terms”).  You should review the Account Terms carefully as they are in addition to the terms stated below.  In the event of a conflict between this document and the Account Terms, the Account Terms shall control.

3. Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Conditions, all the Services listed in your order. All orders must be accepted by us or we will not be obligated to sell the Services to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the Services you have ordered.
4. The Company hereby agrees to use commercially reasonable efforts to provide the Services described in the order form to you.  As described further below, we will provide the equipment (including all parts, cables, and accessories) (the “Equipment”) to enable you to use the Services, and to use reasonable efforts to maintain the Equipment in good operating condition.  The Services will commence on the activation of monitoring services through the Equipment or through a software application.  The term will continue thereafter until terminated as stated below.  We are not responsible for interruption of the Services caused by your misuse or negligence, or interruptions by causes beyond our reasonable control, and the normal monthly charges will apply.
5. Smart Start Obligations. During the term of this agreement, we agree to (1) begin the monitoring process for you, including provision of Equipment required for effective monitoring by the installation of equipment in your vehicle or provision of IN-HOM™ Equipment to you at our installation location; (2) retrieve monitoring information, including all data pertaining to your behavior, from the Equipment you use at times determined by us; (3) recalibrate the Equipment as needed to ensure your continued access to the monitoring service; (4) forward all monitoring information to any court or agency to whom we must provide it; (5) ensure the continuity of the monitoring service by providing, during our normal business hours, for the repair or replacement of Equipment that is not functioning properly if required for provision of the Service; (6) send to any court or supervisory agency a non-compliance report if we determine that the monitoring services have been compromised (for example, if equipment has been tampered with or removed from your vehicle).
6. Disclaimer of Warranty and Limitation of Liability.

EXCEPT AS SHOW IN SECTION 5 ABOVE, SMART START DISCLAIMS ALL WARRANTIES, BOTH EXPRESSED AND IMPLIED, AND ALL OTHER OBLIGATIONS UNDER THIS CONTRACT INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.

SMART START SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE, MISUSE, OR NON-USE OF THE EQUIPEMENT OR ANY FEATURE OF THE EQUIPMENT EVEN IF THE DAMAGE IS FORESEEABLE AND EVEN IF SMART START HAS BEEN ADVISED OF THE POSSIBLITIY OF THOSE DAMAGES.  THESE LIMITATIONS APPLY REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.  THE LIMITATION OF LIABILITY IS SUBJECT TO ANY APPLICABLE LAW REGARDING THE ENFORCEABILITY OF SUCH LIMITATION.

ALL EQUIPMENT AND SOFTWARE CAN MALFUNCTION AT TIMES.  YOU ACKNOWLEDGE THAT YOUR SOLE REMEDY UNDER THIS AGREEMENT IS TO CAUSE SMART START TO REPAIR OR REPLACE ANY EQUIPMENT THAT IS NOT FUNCTIONING PROPERLY. 

7. Your Obligations. During the  term  of  this  Agreement,  you agree to (1) follow  instructions  and  procedures  to  ensure  effective  provision  of  the  Services; (2)  pay  a service  enrollment  fee, a termination fee, including lockout fees as stated in the Payments section; (3) prepay the service enrollment fee and make payments every  thirty (30) days thereafter (or as  otherwise  agreed) for the agreed monthly price of the Services; (4)  pay  to us all taxes applicable to the Services;  (5)  reimburse us for  any  loss  or  damage  to service  Equipment  which  occurs  while  the  Services are  being provided to you;  (6) ensue proper continuity of the Services by delivering Equipment to us during our normal business hours for recalibration and. upon termination of this Agreement, and returning or permitting removal of Equipment from your vehicle; (7) make all service payments to us or our approved direct payment vendor by a method approved by us; and (8) pay a collection fee of 35% of outstanding delinquent balances should we have to turn this account over to an agency or attorney and pay all reasonable and necessary attorney’s fees and court costs.
8. Your Use of Our Equipment.

(a)         Ownership of Equipment.  We will provide you with the Equipment to enable you to use the Service.  We shall at all times retain ownership of and title to the Equipment.  You shall not change or remove any insignia or lettering which is on the Equipment at the time of delivery or which is thereafter placed on the Equipment indicating our ownership.

(b)        Damage to Equipment.  Upon receiving the Equipment, you assume the entire risk of loss, damage or destruction of Equipment from any and every cause during the term of this Agreement and thereafter until you redeliver the Equipment to us.  In the event of loss, damage, or destruction of the Equipment, you (directly or through your insurance) shall pay us for the cost to repair such item, returning it to its previous condition, unless damaged beyond repair, in which case the Equipment will be replaced by new Equipment at the current replacement cost of the damaged Equipment.

9. Prices and Payment Conditions.

(a)  Prices.  All prices (including any discounts and promotions) for the Services are subject to change without notice. The price charged for the Services will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your total for products and services and will be itemized in your order confirmation. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.

(b)  Discounts or Promotions.   We may offer from time to time discounts or promotions for the Services.  Such promotions or discounts may affect the price of Services and may be governed by terms and conditions separate from these Conditions. If there is a conflict between the terms for a promotion and these Conditions, the promotion terms will govern.

(c)  Payment Terms.  Payment for Services are made in advance of the Services being provided to you.  We require that you provide an acceptable form of payment at the time you order the Services.  We accept Mastercard, Visa, and American Express charge cards, and we may also offer payment by ACH or debit card.  With respect to any payment method, you represent and warrant that (i) the payment information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted at the time of your order.

(a)  By You.  You may terminate this Agreement at any time by giving us written notice or by going to the Service Center where you obtained your Equipment and requesting termination of Services.

(b)  By Smart Start.  We may terminate this Agreement if you default on any of your obligations under this Agreement.  In addition, we may terminate this Agreement for any reason upon reasonable notice to you.

(c)  Consequences of Termination.  If this Agreement is terminated for any reason, the following conditions apply:

• (i) WE WILL NOTIFY THE State Authority OF THE TERMINATION OF SERVICES.
• (ii) Upon termination of the Services for any reason, you shall deliver the Equipment and the original packaging materials to us at an address designated by us. You shall deliver all Equipment (including all cables and accessories) in good order and condition, reasonable wear and tear alone excepted.  You shall also pay us our stated cost for the replacement of all damaged, broken, or missing parts of Equipment and the original packaging materials. If upon expiration or termination of the Services you do not immediately return all Equipment and original packaging materials to us, the Services are deemed to be continuing, the terms of the Agreement will continue to apply, and you will remain liable for the monthly service charge until the Equipment is returned, unless other arrangements are made with us.
• (iii) Your license to our intellectual property is terminated.
• (iv) Any unused portion of your payment term is NOT pro-rated at the time of ending the program.
• (v) We may charge you a termination fee for removal of Equipment.

(d)  Continuation of Certain Obligations.  Please note that certain obligations and agreements continue following termination, including:  Indemnity (Section 13), Governing Law and Jurisdiction (Section 16), Dispute Resolution and Binding Arbitration (Section 17), Notices (Section 17); your obligation to return Equipment (Section 10 (c)(ii)); and any payment obligations you owe to us.

11. Personal Use. You represent and warrant that you are buying our Services and using our Equipment for your own personal use only, and (if applicable) pursuant to orders from a State Authority issued to you. Except as stated in the Account Terms, no other person is authorized to use the Services and Equipment you obtain from us except as permitted in the account terms for each service.
12. License of Intellectual Property. The Services and Equipment utilize intellectual property developed or licensed by us.  You are granted a limited license to use our intellectual property solely to use the Services and Equipment as provided in this Agreement.  You shall not assign, transfer, or sublicense this right to anyone.  You shall not reverse engineer, copy, distribute, or make a derivative work of any of our intellectual property.
13. Indemnity. You agree to indemnify and save us and our agents, servants, successors, and assigns harmless against and from any liability, damages or loss, including reasonable counsel f arising out of the provision of the Services, including the selection, possession, operation (regardless of where, how and by whom operated) control, use, condition (including but not limited to latent and other defects, whether or not discoverable by you), maintenance, delivery and return of the Equipment. The indemnities and obligations herein provided shall continue in full force and effect notwithstanding termination of this Agreement.
14. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Conditions, for any failure or delay in our performance under these Conditions when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
15. Effect of Law on Services. You acknowledge that many of our Services may require reporting to State Authorities in compliance with the laws, rules or regulations of a state, county, or municipality or responding to requests from law enforcement agencies.  NOTWITHSTANDING ANY PROVISION OF THESE CONDITIONS OR OUR PRIVACY POLICY, YOU AGREE THAT SMART START MAY, IN ITS SOLE DISCRETION, CHOOSE TO RESPOND TO AND COOPERATE WITH REQUESTS FOR INFORMATION REGARDING YOUR USE OF THE SERVICES WHEN MADE BY ANY State Authority OR LAW ENFORCEMENT AGENCY.
16. Governing Law and Jurisdiction. This Agreement applies to Services offered by us in the United States. All matters arising out of or relating to these Conditions are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
17. Dispute Resolution and Binding Arbitration.

YOU AND 1A SMART START, LLC ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified by this Agreement. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.

You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR SMART START WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.

18. Assignment. You will not assign any of your rights or delegate any of your obligations under these Conditions without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Conditions. We may, without your consent, assign or transfer this Agreement, any Equipment, or sums due or to become due to us under this Agreement, and in such event our assignee or transferee shall have the rights, powers, and privileges of Smart Start under this Agreement.  You hereby acknowledge notice of our intended assignment of our interest in this Agreement, and upon such assignment, you agree not to assert, as against our assignee, any defense, setoff, claim or counterclaim, that it may have against us whether arising under this Agreement or otherwise.
19. No Waivers. The failure by us to enforce any right or provision of these Conditions will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Smart Start.
20. No Third-Party Beneficiaries. These Conditions do not and are not intended to confer any rights or remedies upon any person other than you.

21. Notices.
    • To You. We may provide any notice to you under these Conditions by: (i) sending a message to the email address you provide, (ii) by sending a notice by first class mail, postage prepaid, to the address you provide to us; (iii) by sending a text message (and you consent to the sending of such texts) or (iv) by any other contact method you agree to provide to us. It is your responsibility to keep your contact information current.
    • To Us. To give us notice under these Conditions, you must contact us by United Stated Mail, postage prepaid, at the following address: Smart Start, Attn:  Customer Service Center, 500 E. Dallas Road, Suite 100, Grapevine, Texas 76051, or by calling us at our call center at (800) 880-3394 and allowing our personnel to verify your identity, the Services and Equipment you are using, and the nature of your notice.
    • Effectiveness of Notices. Notices given by email or text are effective immediately.  Notices provided to our call center will be effective one business day after they are received. Notices provided by U.S. mail will be effective three business days after they are sent.
22. Severability. If any provision of these Conditions is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Conditions and will not affect the validity or enforceability of the remaining provisions of these Conditions.
23. Entire Agreement. Our order confirmation, these Conditions, The Account Terms, the license agreement relating to any product or service you obtain on or through this Site/App, our Website Conditions of Use, and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Conditions.