- 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.
(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.
(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.
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- 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 MONITORING 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.
- 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 monitoring 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- No Third-Party Beneficiaries. These Conditions do not and are not intended to confer any rights or remedies upon any person other than you.
- 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.
- 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.
The following Account Terms contain specific terms and conditions that you must assent to prior to using the Services.
Account Terms Applying to All Services
Note: Capitalized terms are defined in the Terms and Conditions
- You must complete prepayment by Visa, MasterCard or American Express credit cards when due (for monitoring Services) or at time of Service (for calibration, lockouts, or other Services). Our technicians and call center representatives cannot waive this requirement. Pricing for Services and Equipment may vary between our locations.
- We may require a refundable security deposit. Deposits cannot be applied for payment of Services.
- Failure to return Equipment to us is considered criminal theft of property, and we reserve the right to request prosecution by local law enforcement authorities.
- Any unused portion of your payment term is NOT pro-rated at the time of ending the program. In addition, termination fees may apply.
- Bypassing and/or tampering with Equipment will result in additional charges and notification to your monitoring authority.
- Other than the information provided through the Services, we do not provide any additional information or reporting involving your account.
- You also agree you have the responsibility to advise all other people in proximity to the Services and Equipment that photographs are being taken and transmitted to us, that we may distribute the photographs to others as described above, and that we are not liable to such persons.
- IMPORTANT: You understand that any user of the Services must rinse their mouth with water prior to each test undertaken during provision of the monitoring service. You are responsible for all tests.
- You are responsible for timely payment for all Services. Your payment obligation continues until you conclude the .
- You understand you must take a validating test after any failed test. A failed test is any test other than a PASS.
- You should call 1-800-880-3394 with any questions.
Ignition Interlock Account Terms
- You understand that as a condition to the monitoring service, you are required to only operate a vehicle equipped with ignition interlock Equipment.
- We are not responsible for tow fees, unless towing is directly caused by the Equipment we provide for the monitoring service. If we agree to towing charges, you must provide receipts.
- You are responsible for timely payments under the Agreement until the Services are terminated and all Equipment is returned to us. You remain responsible even if you are not using the Services or Equipment, if your car is not operable, or if you are incarcerated.
- We are not responsible for vehicles left overnight on our premises. Vehicles left may be towed at owner’s expense.
- When using the Services, you acknowledge you must always practice safe driving habits and keep your eyes on the road. You understand that you have several minutes to complete a running re-test. When testing, you should find a safe place to park before using the Equipment.
- WARNING: SMART START DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED AS TO THE SAFETY OF ANY PERSON OPERATING THIS VEHICLE AFTER DRINKING ANY AMOUNT OF ALCOHOL, OR ANY PASSENGER IN THIS VEHICLE. ANY INDIVIDUAL TAMPERING, CIRCUMVENTING OR MISUSING THIS EQUIPMENT SHALL BE SUBJECT TO PROSECUTION AND/OR CIVIL LIABILITY.
- You must return Equipment on or before your required service date for calibration. Failure to return is a violation of your monitoring authority conditions and may result in a fee to reset the Equipment. Further, we may notify the appropriate monitoring authority when you are out of compliance with the monitoring program.
IN-HOM SMART MOBILE® / SMART START IN-HOM® Account Terms
- You should keep the IN-HOM SMART MOBILE® Equipment (“IN-HOM Equipment”) on a clean, stable surface in an area free from elements containing alcohol.
- Use and store the IN-HOM Equipment so that the cellular signal is strong and reliable.
- Your picture is being captured while taking breath tests, so please dress appropriately.
- Obstructing or tampering with the camera is a violation of the monitoring program.
- You will NOT permit others to test on the IN-HOM Equipment. Allowing others to test may be a violation of the monitoring program.
- You should keep the IN-HOM Equipment with you in case a random test is required.
- You should keep the IN-HOM Equipment charged at all times. We recommend charging the IN-HOM Equipment each night.
- You are responsible for all IN-HOM Equipment components, including the device, carrying case, power cord, and power supply. You will be charged for each missing, damaged, or stolen item.
- Any required deposits will be refunded when all working and undamaged components are returned.
BreathCheck Account Terms
- Your picture is being captured while the taking breath tests. Please dress appropriately.
- You are responsible for the selection, purchase and operation of your Personal Breath Tester (“PBT”). You should keep your PBT charged at all times. We recommend charging your PBT each night.
- You understand that all skipped tests will be reported no matter the reason (including a dead battery).
- Obstructing or tampering with the camera is a violation of the monitoring program.
- You understand that you own the PBT and that we are not liable for damages to your PBT.
- You will NOT permit others to test on your PBT. Allowing others to test may be a violation of the monitoring program.
- You understand that you are responsible for applicable cellular data charges that may apply when using Services.
- You should keep your PBT with you at all times in case a random test is required.