Thank you for using Smartlycart. The smartlycart.com website together with all other text based communications services are collectively referred to as the “Medium”. The terms “we”, “us”, “our” and “Smartlycart” refer to AND Ventures Inc., a Delaware incorporated company or our affiliates. The term “you” refers to the customer visiting or otherwise using the Medium. AND Ventures Inc. is the contracting entity and the entity which will be contacted for customer service.
The Medium provides you with an online platform through which you can browse for products and deals you would like to purchase online through the chat interface (i.e., the offers presented and other services to whom you are connected through the Medium). We do not sell the products or store any products in our warehouse. Product availability, payment, shipping etc. are all governed by the third party service providers. While your use of the Medium is subject to these Terms, your purchases, payments, shipping and delivery is subject to the terms and conditions of the applicable service provider.
These Terms apply to your access and use of our services. Our services include, but are not limited to:
- Any features, content, tools, and/or messages accessible by means of the Medium
- Emails, text messages and social media accounts owned, operated or provided by Smartlycart
- The ability to place orders with the service providers through the Medium
, which together are referred to as the “Agreement”. Please read the Agreement carefully. If you do not accept and agree to the Agreement, please do not use or buy any products through the Medium. Smartlycart may at any time change these Terms and your continued use of the Medium is conditioned upon acceptance of the updated Terms.
Smartlycart is not responsible for any failures caused by server errors, failed internet connections, any computer or other technical defect, whether human or technical in nature.
No guarantees are made regarding the availability of products including inventory, that a user will always receive the lowest available price, or the validity of any content provided to us by a third-party including service providers.
The information provided through the Medium may include inaccuracies or errors, including pricing errors. Smartlycart does not guarantee the accuracy of, and disclaims all liability for any errors or other inaccuracies relating to the information and description of the hotel properties and other service provider services as displayed on the Medium. Smartlycart reserves the right to cancel, to terminate or not to process orders where the price or other material information on the Medium is inaccurate. In such event, we may (if available and in our discretion) offer you the opportunity to keep your pending order at the correct price.
SMARTLYCART DOES NOT WARRANT THAT THE SERVICES OR THE MEDIUM WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE MEDIUM OR SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS, THE SERVICES AND THE MEDIUM ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SMARTLYCART HEREBY DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SECURITY, RELIABILITY, ACCURACY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, SMARTLYCART EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICES OR THE MEDIUM IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY YOU FOR ANY PURPOSE WHATSOEVER.
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
2.0 USE OF OUR SERVICES
2.1 As a condition of your use of our services, you represent and warrant that:
- you have reached the age of majority in your jurisdiction of residence,
- you possess the legal authority to create a binding legal obligation,
- you will only use our services to make legitimate orders for you or for another person for whom you are legally authorized to act, for the purposes of you or that other person personally using the order, and not for any other purpose,
- you will inform such other persons about the terms and conditions that apply to the orders you have made on their behalf, including all rules and restrictions applicable thereto.
2.2 You will not yourself or permit others to:
- use or access the Medium:
- in violation of any applicable law or intellectual property right,
- in a manner that threatens the security or functionality of the Medium, or
- for any purpose or in any manner not expressly permitted in these Terms;
- use the Medium to create, collect, transmit, store, use or process any:
- computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- data or content that you do not have the lawful right to collect, transmit, store, use or process or that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any intellectual property right, privacy right or right of publicity);
- reverse engineer or modify the Medium;
- remove or obscure any proprietary notices or labels on the Medium, including copyright or trademark notices;
- access or use the Medium for the purpose of building a similar or competitive product or service; or
- perform any vulnerability, penetration or similar testing of the Medium.
2.3 Smartlycart uses text messaging features as a part of the Medium.
This is to communicate with you about your orders placed through the Medium. You agree that Smartlycart and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Medium, as well as marketing messages. You may opt out of receiving marketing text messages at any time by texting “STOP” to Smartlycart from the mobile device receiving the messages. You may continue to receive text messages for a short period while Smartlycart processes your request. You may also receive text messages confirming the receipt of your opt-out request and any operational text messages about your booking. Opting out of receiving operational text messages may impact the functionality that the Medium provides to you, and you will no longer be able to use the Medium via your phone’s SMS or text messaging application (but you may continue to use the Medium via third party applications, such as Facebook Messenger or WhatsApp). Text messages may be sent using an automatic telephone dialing system. Your agreement to receive marketing text messages is not a condition of any purchase or use of the Medium. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.
The services are only available to users with a unique identifier (e.g., Facebook user ID, slack user ID, SMS phone number etc.) who can authenticate via a secure login. Your identifier is used to create a member profile - along with a unique membership ID - within our system.
You agree not to share your membership ID or password, or any other means of accessing your Smartlycart membership with anyone at any time. Product availability, pricing and shipping details presented to you are exclusively available to you based on your membership ID - and cannot be shared. You are fully responsible for all liability and damages resulting from your failure to maintain that confidentiality and all activities that occur using your account.
4.0 SUPPLIER RULES AND RESTRICTIONS
Smartlycart works with several service providers. When a product is purchased through the Medium with a service provider, the terms and conditions of that particular service provider will also apply to your order.
If you violate any part of the service providers’ terms and conditions, we have the right to cancel your order and to make changes accordingly. You will be responsible for all fees that arise from making such changes should it be applicable.
You acknowledge that some service provider may require you to agree to and sign their additional terms and conditions . You understand that any violation of any such service provider’s additional terms and conditions may result in cancellation of your order, you forfeiting any monies paid in connection with your order, and/or your Smartlycart account being debited for any costs we incur as a result of such violation.
The price for the products will be as quoted on the Medium from time to time, except in cases of obvious error. Prices are liable to change at any time, but changes will not affect orders already accepted. Despite our best efforts, some of the products listed on the Medium may be incorrectly priced. We reserve the right to correct any pricing errors on the Medium and in such event, we may (if available and in our discretion) offer you the opportunity to keep your pending order at the correct price. We also reserve the right to cancel, to terminate or not to process orders (including accepted orders) where the price or other material information on the Medium is inaccurate. We are under no obligation to fulfil orders placed at an incorrect (lower) price, even after you have been sent confirmation of your order.
The price quoted on the Medium may include, where applicable, fees, tax recovery charges taxes on Smartlycart’s services. Except with respect to tax obligations on the amounts we retain for our services, Smartlycart does not collect taxes for remittance to applicable taxing authorities.
6.0 CHANGES OR CANCELLATIONS
You can cancel your order by using our automated chat on your original booking Medium. However, cancellation fees may apply in accordance with the order terms and conditions. Each service provider will have its own unique cancellation policy which can be found on the service provider’s website when making the final purchase for the product. If the policy is non-refundable, that means the booking is final sale and will not result in a refund if cancelled.
You agree to pay any required cancellation fees when you confirm the order. Changes to your orders are not guaranteed and are subject to approval by service providers. Smartlycart is not liable for any rejected orders to purchase products.
We are not responsible for the acts or omissions of any service provider. If a service provider is unable to honor your order, Smartlycart will not be liable for any costs incurred due to relocation.
7.0 GOVERNING LAW AND ATTORNMENT
Subject to applicable law, these Terms and any dispute arising from these Terms or in connection with our services will be governed by and construed in accordance with the federal laws of the United States of America applicable therein, without regard to conflicts of law principles. Subject to applicable law, any lawsuits arising in connection with these Terms shall be initiated in United States, and you irrevocably attorn to the nonexclusive personal jurisdiction and venue of the courts sitting therein. Smartlycart reserves the right to commence legal action in the Courts within United States in order to enforce these Terms, including the right to seek injunctive relief or other equitable relief to enforce compliance with these Terms. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent us from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
You agree to indemnify and hold harmless Smartlycart and its affiliates and its and their respective officers, directors, employees and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature brought by third parties directly or indirectly arising from or in connection with: (i) your breach of these Terms; (ii) your violation of any law or the rights of a third party; or (iii) your use of the Medium.
9.0 LIMITATION OF LIABILITY
The content, pricing information and services provided through the Medium may include inaccuracies or errors. We do not guarantee the accuracy of any information presented to you. All information regarding service providers and hotel services provided to you are intended as only general guidelines.
The Medium may provide hyperlinks to websites operated by parties other than Smartlycart. Such hyperlinks are provided for your reference only. We do not control such websites and are not responsible for their contents or the privacy or other practices of such websites. Further, it is up to you to take precautions to ensure that whatever links you select or software you download (whether from the Medium or other websites) is free of such items as viruses, worms, trojan horses, defects and other items of a destructive nature. Our inclusion of hyperlinks to such websites does not imply any endorsement of the material on such websites or any association with their operators.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL SMARTLYCART BE LIABLE TO YOU FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR RELOCATIONS; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
Smartlycart is not liable for the acts, errors, omissions, representations, warranties, breaches or negligence of any service providers or for any personal injuries, death, property damage, or other damages or expenses resulting therefrom or while booking an order. We have no liability and will make no refund in the event of any delay, cancellation, overbooking, strike, force majeure or other causes beyond our direct control, and we have no responsibility for any additional expenses, omissions, delays or acts of any government or authority.
IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF SMARTLYCART IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY YOU TO SMARTLYCART IN CONNECTION WITH THE ORDER GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SMARTLYCART’S LIABILITY IN SUCH JURISDICTIONS WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
THE LAWS OF CERTAIN JURISDICTIONS LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
10.0 TERMINATION & UPDATES
We reserve the right to discontinue your membership if you act fraudulently or use the Medium or our services in a way that does not comply with these Terms or any applicable laws. Our decision on all questions or disputes regarding Smartlycart membership is final.
11.0 CHANGES TO TERMS AND CONDITIONS
We may change these Terms at any time, with or without notice, including the terms for the Program, Smartlycart membership qualification requirements and associated benefits, currency conversion and the rates accessible to members. The most current version will always be available on the Medium. If you do not agree with these Terms, you must stop using our services and the Mediums.
12.0 COPYRIGHT AND TRADE-MARK NOTICES
All contents of the smartlycart.com website and the Medium are © 2019 Wise Travel Inc. All rights reserved.
Smartlycart and the Smartlycart logo are trade-marks of Wise Travel Inc. in the US, Canada and other countries. Other logos and product and company names referenced in the Medium are the trade-marks of their respective owners.
13.0 ENTIRE AGREEMENT AND SEVERABILITY
The provisions of these Terms are intended to be severable. If for any reason any provision of these Terms are held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
14.0 ARBITRATION AGREEMENT
14.1 This Arbitration Agreement facilitates the prompt and efficient resolution of any disputes that may arise between you and Smartlycart. Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial.
Please read this Arbitration Agreement carefully. It provides that all disputes between you and Smartlycart shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Arbitration Agreement, "Smartlycart" means Smartlycart and its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. The term "Dispute" means any dispute, claim, or controversy between you and Smartlycart regarding any aspect of your relationship with Smartlycart, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" is to be given the broadest possible meaning that will be enforced.
THE PARTIES AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT. THE PARTIES AGREE THAT BY ENTERING INTO THESE TERMS, EACH PARTY IS WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. THE PARTIES AGREE THIS AGREEMENT IS SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT (“FAA”).
Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (b) seek injunctive relief in a court of law in aid of arbitration; or (c) to file suit in a court of law to address an intellectual property infringement claim.
14.2 Pre-Arbitration Dispute Resolution
Before initiating any Dispute, you must first give Smartlycart an opportunity to resolve the Dispute by emailing written notification to firstname.lastname@example.org. That written notification must include (1) your name, (2) your address, (3) a description of the Dispute, and (4) a description of the specific relief you seek. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration.
14.3 Arbitration Procedures
14.4 Arbitration Award
The arbitrator may award any relief that would be available pursuant to applicable law. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Such award by the arbitrator will be final and binding on the parties, except as provided by applicable law, including but not limited to the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
14.5 Location of Arbitration
Any required arbitration hearing may be conducted, at your option, in (a) the county, parish, or province in which you reside; or (b) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
14.6 Payment of Arbitration Fees and Costs
Smartlycart will pay (or reimburse) all arbitration filing fees and arbitrator’s costs and expenses upon your written request. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA rules or JAMs rules, whichever is applicable. In that case, you agree to reimburse Smartlycart for all monies previously disbursed by it that are otherwise your obligation to pay under the applicable rules. If you prevail in the arbitration and are awarded an amount that exceeds the last written settlement amount offered by Smartlycart before the arbitrator was appointed, Smartlycart will pay you: (i) the amount awarded by the arbitrator and (ii) your reasonable attorney’s fees incurred during the arbitration proceedings. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
14.7 Class Action Waiver
Any Disputes arising out of or relating to your use of Smartlycart and/or any purchase you make on or through Smartlycart, any information you provide via Smartlycart, and/or these Terms (including the formation, performance, or alleged breach) will not be subject to any class action or representative status. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action). Neither you, nor any other Member of Smartlycart and/or user of Smartlycart services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding with respect to the matters set forth in the first sentence of this paragraph. You agree that this Class Action Waiver is material and essential to the arbitration of any dispute between you and Smartlycart and is non-severable from the Arbitration Agreement. If any portion of this Class Action Waiver is limited, voided, or cannot be enforced, then the Arbitration Agreement shall be null and void. You understand that by agreeing to this Class Action Waiver, you may only pursue Dispute against Smartlycart in an individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.
14.8 Limitation of Procedural Rights
You understand and agree that, by entering into this Arbitration Agreement, you and Smartlycart are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and Smartlycart might otherwise have a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). By using the Smartlycart website, product or services, or otherwise accepting these Terms, you are entering into this Arbitration Agreement, and you give up those procedural rights. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.
If any clause within this Arbitration Agreement, other than the Class Action Waiver clause above, is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect.
This Arbitration Agreement shall survive the termination of your contract with Smartlycart and your use of the Smartlycart website, products and services.
If you do not wish to resolve Disputes by binding arbitration, you may opt out of the provisions of this Section 18.0 within 30 days after the date that you agree to these Terms by sending a letter to AND Ventures Inc, Attention: Arbitration Opt-Out, 18 Bartol Street, San Francisco, CA 94133. In order to be effective, the letter must specify: your full legal name, the email address associated with your account on the Smartlycart service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Smartlycart receives your Opt-Out Notice, this Section 18.0 will be void and you are agreeing that any Dispute arising out of these Terms will be resolved as set forth in Section 11.0. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
If Smartlycart makes any future change to this arbitration provision, other than a change to Smartlycart’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Smartlycart’s address for Notice of Arbitration, in which case your account with Smartlycart will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Last updated August 17, 2020.