Effective Date: November 20, 2017
You must be 18 years old or the age of majority in your jurisdiction in order to make a purchase on our Site. If you are under 18 years old or the age of majority in your jurisdiction, then you may not make a purchase on our Site. If you are under 13 years old, you may browse our Site. However, you may not provide personal information to us, make a purchase on the Site nor register on the Site. This Site is not directed to children under 13 years old. By accessing or using the Site, you are acknowledging that you have read, understand, and agree, without limitation or qualification, to be bound by these Terms of Service. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE, YOU MAY NOT USE OUR SITE.
3. Products Information and Services for Personal Use
The products displayed on the Site can be ordered and delivered only within the U.S. Smith & Cult Products displayed on the Site may be available in select retail stores around the U.S. and certain foreign markets. All prices displayed on www.smithandcult.com are quoted in U.S. Dollars and are valid and effective only in the U.S.
All material and information presented on the Site or by Smith & Cult is intended to be used for personal or informational purposes only. The statements made about any of our Products by the manufacturers have not been evaluated by the U.S. Food and Drug Administration or any other government agency and the results reported, if any, may not necessarily occur in all individuals. All Products should be used strictly in accordance with their instructions, precautions and guidelines. The statements and products sold through Smith & Cult are not intended to cure, treat, diagnose, or prevent any condition or disease, or to serve as a substitute for professional medical advice. If you are in need of medical attention please consult a physician immediately.
The products and services available on the Site, and any samples thereof Smith & Cult may provide to you, are for personal use only. You may not sell or resell any of the products or services, or samples thereof, you purchase or otherwise receive from us. We reserve the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products or services to be provided to you that we believe, in our sole discretion, may result in the violation of our Terms of Service.
Except where prohibited by law, Smith & Cult may limit the number of products available for purchase, at our sole discretion.
4. Purchase Related Policies and Procedures
To view policies and procedures related to orders placed through this Site (such as order processing, shipping and handling, returns and exchanges) http://www.smithandcult.com/delivery-returns
To sign up to become a Smith & Cult registered customer, you must register for an account on www.smithandcult.com (an "Account"). You must provide accurate and complete information and keep your Account information updated. You shall not select or use as a username a name of another person with the intent to impersonate that person or use any false or inaccurate information when registering for a Smith & Cult Account. You are solely responsible for the activity that occurs on your Account, and for keeping your password secure. You may never use another person's user account or registration information for the Services without permission. You must notify Smith & Cult immediately of any breach of security or unauthorized use of your Account. You should never publish, distribute, or post login information to your Account. For any issues relating to your Account please contact [email protected].
6. Accuracy of Information
We attempt to be as accurate as possible when describing our products on the Site; however, we do not warrant that the product descriptions, colors, information or other content available on the Site are accurate, complete, reliable, current, or error-free.
This Site may contain typographical errors or inaccuracies and may not be complete or current. Smith & Cult therefore reserves the right to correct any errors, inaccuracies or omissions (including after an order has been submitted) and to change or update information at any time without prior notice. Please note that such errors, inaccuracies or omissions may relate to pricing and availability, and we reserve the right to cancel or refuse to accept any order placed based on incorrect pricing or availability information. We apologize for any inconvenience.
For the purposed of these Terms of Service, the term "Content", includes, without limitation, information, data, text, video, written posts, comments, graphics, software and any other features made available or accessible on or through use of the Site. You acknowledge all Content accessed by you using the Site is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom.
8. Availability of Content
Smith & Cult does not guarantee that any Content will be made available on the Site. Smith & Cult reserves the right to, but does not have any obligation to, (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all, and (ii) to remove or block any Content from the Services.
9. Limited Licenses
We grant you a limited, revocable, non-transferable and non-exclusive license to access and make personal use of the Site. This limited license does not include the right to: (a) republish, redistribute, transmit, sell, license or download the Site or any and/or all Content (except caching or as necessary to view the Site); (b) make any use of the Site or any and/or all Content other than personal use; (c) modify, reverse engineer or create any derivative works based upon either the Site or any and/or all Content; (d) collect account information for the benefit of yourself or another party; (e) use software robots, spiders, crawlers, or similar data gathering and extraction tools, or take any other action that may impose an unreasonable burden or load on our infrastructure.
Smith & Cult reserves the right, at any time, without notice and in its sole discretion, to terminate your license to use the Services or Site and to block or prevent your future access to and use of the Services and Site. Smith & Cult may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process; (ii) enforce these Terms of Service, (iii) respond to any claims that any Content violates the rights of third parties, (iv) respond to your requests for customer services, or (v) protect the rights, property or personal safety of Smith & Cult (and its employees), its users and the public.
10. Your Obligations and Responsibilities
11. Third Party Content
We are not responsible for the content of third-party websites or content ("Third Party Content") linked to or from the Site. Smith & Cult does not monitor, approve or have any control over any Third- Party Content and the inclusion of any does not imply any association, endorsement, or relationship between Smith & Cult, our parent company, subsidiaries, our affiliates or our partners of the referenced content, product, service, or supplier. Your linking to or from any off-website pages or other websites is at your own risk. We are in no way responsible for examining or evaluating, and we do not warrant the offerings of, off-website pages or any other websites linked to or from the Site, nor do we assume any responsibility or liability for the actions, content, products, or services of such pages and websites, including, without limitation, their privacy policies and terms and conditions. You should carefully review the terms and conditions and privacy policies of all off-website pages and other websites that you visit.
12. Special Features, Functionality and Events
If you make a Submission, you represent and warrant that you own or otherwise control the rights to your Submission. You further represent and warrant that such Submission does not constitute or contain software viruses, commercial solicitation, chain letters, mass mailings, or any form of "spam". You may not use a false email address, impersonate any person or entity, or otherwise mislead us as to the origin of any Submission. You agree to indemnify us for all claims arising from or in connection with any claims to any rights in any Submission or any damages arising from any Submission. None of the Content that you submit shall be subject to any obligation of confidence on the part of Smith & Cult, its parent company, agents, subsidiaries, affiliates, partners or third-party service providers and their respective directors, officers and employees. Under no circumstances will we be liable in any way for any User Content submitted, including, without limitation, for any errors or omissions in any User Content, or for any loss or damage of any kind incurred by you as a result of the use of any User Content transmitted, uploaded, posted, e-mailed or otherwise made available via the Site. You hereby waive all rights to any claims against us for any alleged or actual infringements of any proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with the submitted User Content. Without limiting the generality of the foregoing or any other provision of these Terms of Service, we have the right to remove any submissions or User Content that violates these Terms of Service or is otherwise objectionable and we reserve the right to refuse service and/or terminate Accounts without prior notice for any users who violate these Terms of Service or infringe the rights of others.
You acknowledge and agree that the content, materials, text, images, videos, graphics, trademarks, logos, music, software and other elements available on the Site are the property of Smith & Cult and are protected by copyright, trademark and/or other proprietary rights and laws. You agree not to sell, license, rent, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, modify or create derivative works from any content or materials on the Site. Smith & Cult and the Smith & Cult logo are registered trademarks of Smith & Cult, LLC. All of our Site's Content is Copyrighted by Smith & Cult, LLC. All rights reserved. Except as expressly set forth in these Terms, no license is granted to you and no rights are conveyed by virtue of accessing or using the Site. All rights not granted under these Terms are reserved by Smith & Cult.
15. Disclaimer of Warranties; Limitation of Liability
THE SITE AND ITS CONTENT AND SERVICES ARE PRESENTED "AS IS." WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE SITE TERMS AND CONDITIONS OR THE SITE OR ITS CONTENTS OR SERVICES. YOU AGREE THAT WE WILL NOT BE RESPONSIBLE OR LIABLE IN CONTRACT, WARRANTY OR IN TORT (INCLUDING NEGLIGENCE) FOR ANY (a) INTERRUPTION OF BUSINESS; (b) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SITE; (c) DATA NON-DELIVERY, MISDELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (d) LOSS OR DAMAGES OF ANY SORT INCURRED AS A RESULT OF DEALINGS WITH OR THE PRESENCE OF OFF-WEBSITE LINKS ON THE SITE; (e) COMPUTER VIRUSES, SYSTEM FAILURES OR MALFUNCTIONS WHICH MAY OCCUR IN CONNECTION WITH YOUR USE OF THE SITE, INCLUDING DURING HYPERLINK TO OR FROM THIRD PARTY WEBSITES (f) ANY INACCURACIES OR OMISSIONS IN CONTENT OR (g) EVENTS BEYOND OUR REASONABLE CONTROL.
FURTHER, WE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES. IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY FOR SUCH CLAIMS EXCEED ONE HUNDRED DOLLARS ($100.00).
YOU FURTHER AGREE THAT NO CLAIMS OR ACTION IN CONTRACT, WARRANTY, OR IN TORT (INCLUDING NEGLIGENCE) ARISING OUT OF, OR RELATED TO, THE USE OF THE SITE OR THESE TERMS OF SERVICE MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION RELATING TO SUCH CLAIM OR ACTION AROSE. IF YOU ARE DISSATISFIED WITH THE SITE, TERMINATION OF YOUR USE OF THE SITE IS YOUR SOLE REMEDY. WE HAVE NO OTHER OBLIGATION, LIABILITY, OR RESPONSIBILITY TO YOU.
You agree to defend, indemnify and hold Smith & Cult (and its parent company, subsidiaries, officers, directors, agents, joint ventures, employees and third-party service providers), from all claims, demands, losses, liabilities, costs, expenses, obligations and damages including reasonable legal fees, arising out of (a) your misuse of the Site or Services; (b) your violation of any of these Terms of Service; (c) a breach of your representations and warranties set forth above; (d) your violation of any law or the rights of a third party (including, without limitation, any copyright, property or privacy right); or (e) any claim that any Content you submitted caused damage to a third party. This indemnification obligation will survive the termination of these Terms of Service and your misuse of the Site(s) and Services. You also agree to indemnify us for any loss, damages, or costs, including reasonable attorneys' fees, resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or load on our infrastructure.
17. Waiver; Remedies
The failure of Smith & Cult to partially or fully exercise any rights or the waiver of Smith & Cult of any breach of these Terms of Service by you shall not prevent a subsequent exercise of such right by Smith & Cult or be deemed a waiver by Smith & Cult of any subsequent breach by you of the same or any other term of these Terms of Service. The rights and remedies of Smith & Cult under these Terms of Service and any other applicable agreement between you and Smith & Cult shall be cumulative, and the exercise of any such right or remedy shall not limit Smith & Cult's right to exercise any other right or remedy.
18. Governing Law
The laws of the State of Florida shall govern these Terms of Service without regard to conflict of laws provisions.
With respect to any dispute, claim or controversy regarding your use of the Site, or the Products you purchase through the Site, any dispute relating in any way to your use of the Site, these Site Terms of Service, or the relationship between the Parties (other than claims relating to the intellectual property rights of Smith & Cult) shall be submitted to confidential arbitration here in Florida and you agree to submit yourself to the jurisdiction and proceedings thereof. Arbitration means that an arbitrator will decide the claim and you will not have the right to a jury or a judge. It is further agreed that any dispute over the scope of this arbitration provision and any dispute as to whether a claim is arbitral shall be submitted to the arbitrator for decision. Notwithstanding the foregoing, to the extent you have in any manner violated or threatened to violate our intellectual property rights or the intellectual property rights of our affiliates, partners or licensors or otherwise have a cause of action in equity, we may seek injunctive or other appropriate relief in any court of competent jurisdiction and you consent to jurisdiction and venue in any such court for such purposes. Arbitration under this agreement shall be conducted under the Consumer-Related Disputes Supplementary Rules then prevailing with the American Arbitration Association. The arbitrators award shall be binding and may be entered as a judgment in any court of competent jurisdiction. You agree that any arbitration or proceeding shall be limited to the dispute between us and you individually, and (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
20. Consent to Receive Notices Electronically by Posting on the Site and Via Email
You consent to receive any agreements, notices, disclosures and other communications (collectively, "Notices") to which these Terms of Service refer from us electronically including without limitation by e-mail or by posting notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. To withdraw your consent to receive Notices electronically, you must notify us of your withdrawal of such consent by emailing us at [email protected] and discontinue your use of this Site. In such event, all rights granted to you pursuant to these Terms of Service, including but not limited to the limited licenses set forth above, shall automatically terminate. Unfortunately, we cannot provide the benefits of this Site to any user that cannot consent to receipt of Notices electronically.