Terms & Conditions
TERMS AND CONDITIONS OF USE OF THIS WEB SITE
BY USING SMARTER WILL OR ACCESSING THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM.
YOU AGREE THAT BY USING THE SITE AND ITS SERVICES YOU ARE AT LEAST 18 YEARS OF AGE, YOU ARE A RESIDENT OF ILLINOIS, AND YOU ARE LEGALLY ABLE TO ENTER INTO A CONTRACT.
Attorney Advertising: This Web site is for general information only and is not intended to provide and should not be relied upon for legal advice in any particular circumstance or fact situation. The reader is advised to consult with an attorney to address any particular circumstance or fact situation.
PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS (the “Terms of Service”) BEFORE BECOMING A USER OF A THE SMARTERWILL WEBSITE AND LIMITED LEGAL SERVICES SERVICE (the “SMARTERWILL Service”) AND AVAILING YOURSELF OF THE SERVICES YOU HAVE SELECTED (the “Services”). IF YOU ACCEPT THESE TERMS OF SERVICE, YOU HAVE ENTERED INTO A LEGALLY BINDING AGREEMENT WITH SMARTERWILL, LLC. (“SMARTERWILL “, “we” or “us”) AND YOUR USE OF THE SMARTERWILL SERVICE IS SUBJECT TO THESE TERMS OF SERVICE AS WELL AS THE SMARTERWILL ONLINE PRIVACY POLICY AT www. SMARTERWILL.com/privacy-policy. PLEASE READ THESE TERMS CAREFULLY. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE YOU MAY NOT USE THE SMARTERWILL SERVICES.
Ownership. This Site is owned and operated by SmarterWill, LLC. All right, title and interest in and to the materials provided on this Site, including but not limited to information, documents, logos, graphics, sounds and images (the “Materials”) are owned either by SmarterWill, LLC. or by our respective third party authors, developers or vendors (“Third Party Providers”). Except as otherwise expressly provided by the Firm, none of the Materials may be copied, reproduced, republished, downloaded, uploaded, posted, displayed, transmitted or distributed in any way and nothing on this Site shall be construed to confer any license under any of SmarterWill, LLC.’s intellectual property rights, whether by estoppel, implication or otherwise. The Firm does not sell, license, lease or otherwise provide any of the Materials other than those specifically identified as being provided by SmarterWill, LLC. . Any rights not expressly granted herein are reserved by SmarterWill, LLC.
Resale of Forms Prohibited. By ordering Forms, you agree that the Forms you purchase may only be used by you for your personal use or used by you in connection with your client and may not be sold or redistributed without the express written consent of SmarterWill, LLC.
BY PROCEEDING WITH YOUR PURCHASE, YOU ARE ACCEPTING THESE TERMS OF SERVICE.
You understand and agree that (a) SMARTERWILL is not an attorney or law firm, (b) SMARTERWILL is not providing any legal services, including the Legal Services made available under the SMARTERWILL Services (c) at no time has or will SMARTERWILL give you legal advice, and (d) no attorney-client relationship or privilege is created between you and SMARTERWILL. All Legal Services provided under the SMARTERWILL Service shall be provided by law firms (“Law Firm Providers”) and certain of their attorneys (“Participating Attorneys”) who have agreed to provide services to SMARTERWILL Service users. The Law Firm Providers and Participating Attorneys are independent from SMARTERWILL. USER’S RELATIONSHIP WITH THE LAW FIRM PROVIDER AND PARTICIPATING ATTORNEY IS SUBJECT TO SEPARATE TERMS AND CONDITIONS (THE “REPRESENTATION AGREEMENT”). THE REPRESENTATION AGREEMENT IS PROVIDED TO YOU AT THE TIME YOU REGISTER TO PURCHASE A LEGAL SERVICE. YOUR RECEIPT OF THE LAW FIRM PROVIDER’S AND PARTICIPATING ATTORNEY’S SERVICES ARE CONTINGENT UPON YOUR AGREEMENT TO THE REPRESENTATION AGREEMENT.
THESE TERMS AND CONDITIONS, TOGETHER WITH ALL UPDATES, ADDITIONAL TERMS, LICENSES, AND ALL OF SMARTERWILL’S TERMS, RULES, AND POLICIES COLLECTIVELY CONSTITUTE THE “AGREEMENT” BETWEEN YOU AND SMARTERWILL. YOU MUST ACCEPT AND ABIDE BY THESE TERMS AS PRESENTED TO YOU: CHANGES, ADDITIONS, OR DELETIONS ARE NOT ACCEPTABLE AND SMARTERWILL MAY REFUSE ACCESS TO ANY OR ALL OF THE SMARTERWILL SERVICES FOR NONCOMPLIANCE WITH ANY PART OF THE AGREEMENT. THE SMARTERWILL SERVICES, INCLUDING ALL SERVICES PROVIDED THEREUNDER ARE NOT A SUBSTITUTE FOR ACCOUNTING, BUSINESS, TAX, OR OTHER PROFESSIONAL ADVICE OR SERVICES.
1. DEFINITIONS.
1.1. “Account Information” means information which identifies you and your SMARTERWILL Services ordered, including but not limited to your name, address, telephone number, email address, account number, description of services provided (but not any actual Document or Legal Document or any information that you provide in connection with the preparation of a Document), and the name and contact information for the Participating Attorney assigned to you.
1.2. “Covered Party” means SMARTERWILL, its successors, assigns, parents, subsidiaries, third party alliance entities, affiliates and their respective officers, directors, employees, contractors, licensors, suppliers and agents. “Covered Party” does not include Law Firm Providers or Participating Attorneys.
1.3. “Document” means a Form selected by you that has been populated by information you submit using the Web Site. A Document is not a Legal Document as it has not yet been reviewed by an attorney and is not intended for use in place of a Legal Document.
1.4. “Fees” means the fees paid for the SMARTERWILL Services selected by the User.
1.5. “Firm” means the firm for which the Participating Attorney is an employee or contractor.
1.6. “Form” means the form or forms used in conjunction with information provided by you to create a non-legal draft of the Legal Document you ordered as part of your SMARTERWILL Services, which form is made available for your review as part of the Document, via the Web Site, prior to the forwarding of the Document to a Participating Attorney for the performance of the Legal Services, and subject to the license terms set forth in the Agreement. Each Form is owned by SmartLegalForms, Inc., and is used by SMARTERWILL with permission.
1.7. “Information” means information you provide including, but not limited to your Account Information and any and all other information.
1.8. “Legal Document” means the document you ordered as part of your SMARTERWILL Services, which has been reviewed and provided by a Participating Attorney.
1.9. “Legal Fees” means the attorney’s fees due and payable for the Legal Services completed by the Participating Attorneys under these Terms of Service.
1.10. “Legal Services” means the legal services described in Section 2.2, which will be offered by a Law Firm Provider and its Participating Attorneys to Users as part of the Legal Services provided to Users.
1.11. “Participating Attorney” means an attorney who provides Legal Services to the Users.
1.12. “User,” “you” and “your” (either capitalized or lower case) each mean the person entering into the Agreement with SMARTERWILL to become a User of the SMARTERWILL Services.
1.13. “Web Site” means the SMARTERWILL website located at www.SMARTERWILL.com, through which users can manage Account Information, complete draft Forms and confidentially convey information to Participating Attorneys so that they may perform the Legal Services.
2. SERVICES.
2.1. Each SMARTERWILL Service includes:
a. Administrative services, including but not limited to ordering, registration, password and billing services;
b. Providing password protected access to the Web Site and the Forms;
c. Access to the Web Site, on which you can submit personal and other information for incorporation into the applicable Legal Document you have requested as part of your SMARTERWILL Services. Once you have completed providing your personal information and paid the applicable fee in accordance with Section 3.1, such information will be incorporated into a relevant Form, you will receive access to a draft Document consisting of the Form and the information that you provide. However, no Form or resulting Document is a Legal Document;
d. Through the Web Site you will submit the Document to a Participating Attorney for review and the provision of the Legal Services detailed below. The Web Site also allows for additional communication between the User and the Participating Attorney to facilitate the transfer of your information to the Participating Attorney; and Electronic secure storage of your Legal Documents (if applicable) for 12 months from the date that a particular SMARTERWILL Service is concluded upon the submission to you by your Participating Attorney of the notice discussed in Section 2.2(i) above;
2.2. A Participating Attorney will perform the Legal Services, which are limited to the following:
a. Review of your draft Documents developed through the Web Site to develop the Legal Documents;
b. Legal analysis of each Document and review of each Document’s appropriateness for User’s legal needs;
c. One telephone consultation, if requested, with the attorney during normal business hours to answer your questions regarding the Document and the additional changes needed to develop the Legal Document;
d. Review of your answers to the questionnaire that generated the Document using the Website;
e. Review of and revisions to your Document to create the applicable Legal Document;
f. Advice regarding your legal rights and responsibilities and any possible need for additional Legal Documents or legal advice;
g. Alerting you to reasonably observable legal problems though they fall outside the scope of Legal Services;
h. Within a reasonable time after the telephone consultation with you, transmission of a concluding notice to you through the Web Site containing all of the following
i. a summary of the consultation as well as any comments on and revisions to the Document;
ii. presentation of the Legal Document created for you;
iii. instructions regarding the legal requirements for execution and filing of the Legal Document;
3. FEES.
3.1. User agrees that it shall pre-pay for each selected SMARTERWILL Service. As such, valid credit card information is due at the time of purchase of the SMARTERWILL. Any denial of payment or stopping of payment will result in the cancellation of the order for the applicable SMARTERWILL.
3.2. The pre-paid fees will consist of two distinct payments. The first payment will cover only the Services provided by SMARTERWILL, and the second payment will cover the Legal Services. Any fees for services beyond the scope of the SMARTERWILL Service, including but not limited to fees for additional legal advice and any out of pocket fees and expenses such as notary fees, filing fees and probate fees, are additional costs that you will need to pay, and such services or fees are not part of the SMARTERWILL Services or covered as part of these Terms of Service.
3.3. User understands and agrees that the SMARTERWILL Services include the Legal Services from a Participating Attorney. The total fee you pay to the Participating Attorney is not increased by reason of SMARTERWILL’s collection activities on behalf of the Participating Attorneys. User consents to having SMARTERWILL collect the Participating Attorney’s Legal Fees as part of the Fees. Except as expressly provided by the Agreement and on the SmarterWill, the Legal Fees portion of your total fee is not refundable by SMARTERWILL, subject to our stated refund policy.
The Participating Attorney fees (which for ease of payment are paid to a bank account established by SMARTERWILL to hold fees collected on behalf of Participating Attorneys and then remitted from that account directly to Participating Attorneys, and are not commingled with SMARTERWILL funds) are, per document, as follows:
|
||||||||||||||||
|
|
||||||||||||||||
3.4. SMARTERWILL may report and share information about your account to credit bureaus, consumer reporting agencies and card associations. Late payments, missed payments, or other defaults on your account may be reflected in your credit report and consumer report. We may also share information with other companies, lawyers, credit bureaus, agents, government agencies and card associations in connection with issues related to fraud, credit or debt collection.
3.5. Payments for the SMARTERWILL Service do not include any federal, state or local sales, use, or similar taxes. If any such taxes are applicable, they will be charged to User’s account.
4. GRANTS OF RIGHTS; RESTRICTIONS.
4.1. License Grants from SMARTERWILL to User. SMARTERWILL hereby grants User a nonexclusive, non-transferable, revocable, limited right to access and use the Web Site, the SMARTERWILL Services, and each Form relevant to the SMARTERWILL Services ordered by User, each for the limited purpose of obtaining the SMARTERWILL Services and all in accordance with these Terms of Service. This license allows you to access and use the Web Site, the SMARTERWILL and Legal Services, Forms and Documents for your personal use only and not for commercial exploitation. All rights not expressly granted to you are reserved by SMARTERWILL and its third party providers. You must be a User to obtain the SMARTERWILL Services and Legal Services. SMARTERWILL reserves the right to accept or refuse in its discretion to provide SMARTERWILL Services to any individual.
4.2. Limitations on Use. User may not decompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicense, or create derivative works from this Web Site. Nor may User use any network monitoring or discovery software to determine the site architecture, or extract information about usage, individual identities or users. User may not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Web Site without SMARTERWILL’s prior written permission. User may not use this Web Site to transmit any false, misleading, fraudulent or illegal communications. User may not copy, modify, reproduce, republish, distribute, display, or transmit for commercial, non-profit or public purposes all or any portion of this Web Site, except to the extent permitted above. User may not use or otherwise export or re-export this Web Site or any portion thereof in violation of the export control laws and regulations of the United States of America. Any unauthorized use of this Web Site is prohibited.
5. ATTORNEY-CLIENT RELATIONSHIP SOLELY BETWEEN USER AND PARTICIPATING ATTORNEY.
5.1. Participating Attorneys Are Independent of SMARTERWILL and Provide all Legal Services. All Legal Services provided under the SMARTERWILL Services shall be provided solely by Participating Attorneys. Each Participating Attorney is an independent third party from SMARTERWILL who has agreed to provide Legal Services directly to Users of the SMARTERWILL Services. Participating Attorneys are not employees or agents of SMARTERWILL or any Covered Party. While Participating Attorneys’ contact information may be provided on our Web Site, any such information will be provided simply to facilitate the provision of the SMARTERWILL Services.
5.2. You Must Agree to Representation Agreement to Become a Client. User’s relationship with the Participating Attorney is subject to the Limited Services Retainer Agreement which is available for your review and printing at www.SMARTERWILL.com/attorney-representation-agreement. The Participating Attorney’s Services to any User is contingent upon the User’s agreement to the Representation Agreement.
5.3. SMARTERWILL Provides No Legal Services. User understands and agrees that (a) SMARTERWILL is not an attorney or law firm, (b) SMARTERWILL is not providing any legal services, including the Legal Services provided as part of the SMARTERWILL Services (c) at no time has SMARTERWILL given or will SMARTERWILL give you legal advice, and (d) no attorney-client relationship or privilege is created between User and SMARTERWILL. SMARTERWILL will in no way influence or attempt to affect, or in any way take part in, the rendering of professional services by the Participating Attorney or the Participating Attorney’s independence or professional judgment. The parties agree SMARTERWILL‘s administration of the SMARTERWILL Services will not require or involve any interference with the attorney-client privilege or the attorney-client relationship between the applicable Participating Attorney and User regarding any Legal Services.
5.4. User understands and agrees that any and all claims relating to the quality of the Legal Services or for errors that may be made by the Participating Attorney are never to be made against SMARTERWILL, under any circumstance.
5.5. Nothing in the SMARTERWILL Services or the Agreement shall be construed to limit the right of a User to retain, at User’s own expense, an unaffiliated attorney admitted to practice in the state in which the legal services are to be provided or any additional services beyond the scope of the SMARTERWILL Services from any Participating Attorney. SMARTERWILL shall not be obligated to pay for any such services.
6. CONFIDENTIALITY; PASSWORDS; REPORTING OF MISUSE; PROPRIETARY INFORMATION.
6.1. SMARTERWILL shall undertake to preserve Users Account Information and other User information, as more fully described in the privacy policy located at www.SMARTERWILL.com/privacy-policy.
6.2. Certain sections of the Web Site require you to register. If registration is requested, you agree to provide accurate and complete registration information. It is your responsibility to inform SMARTERWILL of any changes to that information. Each registration is for a single individual only, unless specifically designated otherwise on the registration page. SMARTERWILL does not permit anyone other than you to use the sections requiring registration by using your name or your password. You are responsible for preventing such unauthorized use.
6.3. You must immediately alert us of any fraudulent, unauthorized, illegal, or suspicious use of your password or registration information or any Form, Document, Legal Document or the Web Site, or any other breach of security or unauthorized or illegal activity that you reasonably suspect. If you believe there has been unauthorized use, you must notify SMARTERWILL immediately by emailing support@SMARTERWILL.com.
7. ASSIGNMENT; EXTENSION OF SERVICE.
7.1. You may not transfer or assign your rights under the Agreement to any third party.
7.2. Unless explicitly stated otherwise, any new features which update or enhance the SMARTERWILL Services, including the release of updated Forms, shall be subject to these Terms of Service.
8. EXCLUSIONS; CONFLICTS.
8.1. Conflicts. Prior to accepting the privilege of providing you Legal Services, the Participating Attorney assigned to your matter will undertake a check to confirm that representation of you does not conflict with the representation of any of their current or former clients or those of their Firm. If a conflict arises, we will refer you to another Participating Attorney.
8.2. Exclusions. The SMARTERWILL Services are limited to those specifically described by the Web Site or the Agreement and exclude all other services, including without limitation:
a. Any adversarial proceeding and any non-adversarial legal matter outside the jurisdiction in respect of which you have purchased SMARTERWILL Services;
b. Any matter involving the laws of jurisdictions outside of the United States or its subdivisions or outside the states for which SMARTERWILL Services are made available; or
c. Any matter that, in the Law Firm Provider’s opinion, is frivolous or harassing in nature or objective.
9. GENERAL PRACTICES FOR USE OF THE SERVICES.
9.1. You acknowledge that SMARTERWILL may establish general practices and limits concerning use of the SMARTERWILL Services (e.g., the number of times and the maximum duration for which you may access the Documents and Legal Documents in a given period of time). You acknowledge that SMARTERWILL reserves the right to change these general practices and limits at any time, in its sole discretion, upon 30 days’ notice, provided that SMARTERWILL shall not make any changes to its privacy policy without first providing you notice of such changes and the opportunity to terminate your usage of the SMARTERWILL services as a result of such changes.
9.2. Without limiting its rights under the Section 10 (TERMINATION) below, SMARTERWILL has the right (but not the obligation) to terminate your use of the SMARTERWILL Services for unreasonable, uncooperative or harassing contact with the Participating Attorney or that attorney’s firm.
9.3. Access to the Web Site and the SMARTERWILL Services may be limited or delayed based on problems inherent in the use of the Internet and electronic communications. SMARTERWILL is not responsible for any delays, delivery failures or other damage resulting from such problems.
10. TERMINATION.
10.1. SMARTERWILL may terminate your use of the SMARTERWILL Services for any or no reason in its sole discretion.
10.2. Your right to become a User is subject to any limits established by SMARTERWILL or by your credit card issuer. If payment cannot be charged to your credit card or your charge is declined or returned for any reason, including through a chargeback, SMARTERWILL shall either deny participation in the SMARTERWILL Services or, if you already are a User, terminate your access and account, thereby terminating the Agreement and all obligations of SMARTERWILL and any Participating Attorney hereunder.
10.3. Services after Termination. After termination of the Agreement, you will be able to access any Legal Documents made available to you under the SMARTERWILL Services during the period set forth in Section 2.3 above. Nothing in this paragraph will affect any access rights to the Web Site you may have under any separate SMARTERWILL Services to which you have become a User.
11. USER RESPONSIBILITIES.
11.1. USER UNDERSTANDS THAT SMARTERWILL IS NOT PROVIDING LEGAL DOCUMENTS AND THAT THE PARTICIPATING ATTORNEY WILL PROVIDE THE LEGAL DOCUMENTS VIA THE LEGAL SERVICES THROUGH THE WEB SITE.
11.2. USER UNDERSTANDS THAT USER WILL BE SOLELY RESPONSIBLE FOR READING THE LEGAL DOCUMENT(S) AND THE CORRESPONDENCE FROM THE PARTICIPATING ATTORNEY AND FOLLOWING ALL INSTRUCTIONS FROM THE PARTICIPATING ATTORNEY REGARDING THE EXECUTION OF THE LEGAL DOCUMENTS BEFORE SIGNING EACH LEGAL DOCUMENT AND, EXCEPT AS OTHERWISE EXPRESSLY INSTRUCTED BY THE PARTICIPATING ATTORNEY, ACCEPTS SOLE RESPONSIBILITY FOR THE PROPER EXECUTION OF THE LEGAL DOCUMENT(S).
12. INDEMNIFICATION.
12.1. You will indemnify, defend, and hold harmless the Covered Parties from and against any and all claims, actions, demands, losses, direct, indirect, and consequential injuries, damages, liabilities, losses, penalties, interest, and expenses (including reasonable attorneys’ fees), damages, liabilities, taxes, penalties, assessments, judgments and costs arising out of, from, or in connection with third party claims arising or related to:
a. The Agreement;
b. Any SMARTERWILL Services provided to you;
c. Your use of any SMARTERWILL Services;
d. Your use of any Form or Document;
e. Any information provided by you through the Web Site or SMARTERWILL‘s use of your Information as permitted by the Agreement;
f. Your use of the Legal Services;
g. Any violation by you of any federal, state or local laws, statutes, rules, or regulations; and
h. Any breach of your representations or warranties set forth in the Agreement.
12.2. If SMARTERWILL becomes aware of an event giving rise to your indemnity obligation under Section 12.1, SMARTERWILL will give you prompt notice thereof. SMARTERWILL reserves the right to participate in the defense of any claim, suit or proceeding, at its expense.
13. LIMITED GUARANTEE; DISCLAIMER OF ADDITIONAL GUARANTIES AND WARRANTIES.
13.1. SMARTERWILL WILL PROVIDE YOU A REFUND OF THE MONEY PAID FOR YOUR DOCUMENT, SHOULD YOU FAIL TO RECEIVE DELIVERY OF THE DOCUMENT FROM SMARTERWILL OR THE LEGAL DOCUMENT(S) ORDERED UNDER THE AGREEMENT.
13.2. SMARTERWILL GUARANTEES YOUR SATISFACTION WITH THE PROCESS BY WHICH YOU ENTER YOUR INFORMATION THROUGH THE WEB SITE, OUR DELIVERY OF A DOCUMENT TO YOU AND TO A PARTICIPATING ATTORNEY, THE REFERRAL OF YOUR DOCUMENT TO A PARTICIPATING ATTORNEY, AND YOUR OBTAINING A LEGAL DOCUMENT FROM THE PARTICIPATING ATTORNEY. IF YOU ARE UNHAPPY WITH ANY PORTION OF THIS PROCESS, PLEASE NOTIFY SMARTERWILL AND SMARTERWILL WILL REFUND TO YOU ALL OF THE FEES PAID BY YOU TO SMARTERWILL. PROVIDED THAT YOU REQUEST SUCH REFUND WITHIN 3 DAYS OF THE DELIVERY OF THE NOTICE FROM YOUR PARTICIPATING ATTORNEY DISCUSSED IN SECTION 2.2 ABOVE.
13.3. SMARTERWILL MAKES NO FURTHER GUARANTEES OR WARRANTIES. SMARTERWILL DOES NOT GUARANTEE OR WARRANT (a) THAT ANY FORM OR DOCUMENT IS SUITABLE FOR A PARTICULAR PURPOSE, OR (b) THAT ANY FORM IS ACCURATE, RELIABLE, COMPLETE, OR TIMELY. FURTHERMORE, LAWS, REGULATIONS, AND ADMINISTRATIVE REQUIREMENTS OFTEN CHANGE, AND THEIR APPLICATION AND IMPACT VARY FROM PERSON TO PERSON. ACCORDINGLY, THE FORMS ARE NOT INTENDED TO PROVIDE OR SUBSTITUTE FOR ACCOUNTING, LEGAL, BUSINESS, TAX, OR OTHER PROFESSIONAL ADVICE OR SERVICES. THEY ARE OFFERED FOR INFORMATION PURPOSES ONLY AND ARE ONLY TO BE USED AFTER REVIEW BY LEGAL COUNSEL. THE INFORMATION CONTAINED IN ANY FORM SHOULD NOT BE CONSTRUED OR RELIED UPON AS LEGAL ADVICE. COMPLIANCE WITH ALL LAWS AND REGULATIONS REMAINS YOUR SOLE AND ABSOLUTE RESPONSIBILITY. BEFORE TAKING ANY ACTION BASED ON INFORMATION FROM THE WEB SITE, ANY FORM OR ANY COMMUNICATION, YOU SHOULD OBTAIN THE LEGAL SERVICES ASSOCIATED WITH THE SMARTERWILL SERVICES, CONSULT WITH A FINANCIAL OR LEGAL PROFESSIONAL TO VERIFY DEADLINES AND DETERMINE WHETHER SUCH ACTIONS ARE APPROPRIATE FOR YOU BASED ON YOUR NEEDS. NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ARE GIVEN REGARDING THE LEGAL SERVICES OR OTHER CONSEQUENCES RESULTING FROM THE USE OF ANY FORM OR THE SMARTERWILL SERVICES.
13.4. WITHOUT LIMITING THE PROVISIONS OF SECTION 13.3, YOU EXPRESSLY AGREE THAT USE OF THE WEB SITE AND THE SMARTERWILL SERVICES IS AT YOUR SOLE RISK. THE WEB SITE AND THE SMARTERWILL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SMARTERWILL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE COVERED PARTIES MAKE NO WARRANTY: (a) THAT THE WEB SITE AND THE SMARTERWILL SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE WEB SITE AND THE SMARTERWILL SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (b) ABOUT THE RESULTS OBTAINED FROM THE WEB SITE AND THE SMARTERWILL SERVICES OR THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEB SITE AND THE SMARTERWILL SERVICES, (c) REGARDING THE QUALITY, CONSTRUCTION OR ACCURACY OF ANY FORM, DOCUMENT OR LEGAL DOCUMENT; AND (d) NO WARRANTY THAT DEFECTS IN THE WEB SITE, THE SMARTERWILL SERVICES, OR THE RESULTS WILL BE CORRECTED.
14. LIMITATION OF LIABILITY.
YOU AGREE THAT THE COVERED PARTIES MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, CAUSES OF ACTION, DAMAGES, LOSSES, OR JUDGMENTS ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SMARTERWILL SERVICES THAT ARE THE SUBJECT OF THE AGREEMENT. THE COVERED PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF SMARTERWILL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COVERED PARTIES ARE NOT RESPONSIBLE FOR ANY LOSS OF DATA RESULTING FROM WEB SITE, NETWORK OR SYSTEM OUTAGES, EQUIPMENT OR TELE-COMMUNICATIONS FAILURES OR MALFUNCTIONS, FILE CORRUPTION, OR ANY OTHER REASONS. FURTHER, THE COVERED PARTIES SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY NEGLIGENT ACTS OR OMISSIONS IN MAKING AVAILABLE FORMS OR DOCUMENTS OR FOR PROVIDING ACCESS UNDER THE AGREEMENT TO THE PARTICIPATING ATTORNEY OR TO THE LEGAL SERVICES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15. GENERAL
15.1. Law. Unless specifically stated otherwise in the Agreement, the Agreement is governed by the laws of the state of Illinois without regard to its conflict of law provisions and you and SMARTERWILL submit to the personal and exclusive jurisdiction of the courts located within that the state of Illinois. SMARTERWILL may waive the foregoing exclusive jurisdiction provision by written notice from an authorized SMARTERWILL representative or by filing a complaint in any other jurisdiction. SMARTERWILL retains at all times the right to obtain an injunction in court to prevent misuse of the SMARTERWILL Services.
15.2. Arbitration. Except as provided below, any controversy, claim or counterclaim (whether characterized as permissive or compulsory),arising out of or in connection with the Agreement (including any amendment or addenda thereto), whether based on contract, tort, statute or other legal theory (including but not limited to any claim of fraud or misrepresentation) will be resolved by binding arbitration under this section and the then-current Commercial Rules and supervision of the American Arbitration Association (“AAA”). The duty to arbitrate will extend to any employee, officer, agent or affiliate of either party. The arbitration will be held in the state specified by Section 15.1. The arbitration will be conducted by a single arbitrator who is knowledgeable with respect to the electronic information services and advertising services industries and who is an attorney. The arbitrator’s award will be final and binding and may be entered in any court having jurisdiction. The arbitrator will not have the power to award punitive or exemplary damages, or any damages excluded by, or in excess of, any damage limitations expressed in the Agreement.
a. Each party will bear its own attorneys’ fees and other costs (e.g., filing fees, internal costs, etc.) associated with the arbitration, except that the fees assessed by the AAA for the services of the arbitrator will be divided equally by the parties. If court proceedings to stay litigation or compel arbitration are necessary, the party who unsuccessfully opposes such proceedings will pay all associated costs, expenses and attorney’s fees which are reasonably incurred by the other party. Issues of arbitrability will be determined in accordance and solely with the federal substantive and procedural laws relating to arbitration; in all other respects, the arbitrator will be obligated to apply and follow the substantive law of the state of Illinois.
b. EACH PARTY IRREVOCABLY WAIVES ITS RIGHTS (i) BRING A CLASS ACTION AGAINST THE OTHER PARTY, OR (ii) JOIN OR CONSOLDIATE ITS CLAIMS WITH THE CLAIMS OF OTHERS IN A CLASS ACTION AGAINST THE OTHER PARTY, IN EACH CASE RELATING TO THE AGREEMENT OR THE SMARTERWILL SERVICES, AND IN EACH CASE WHETHER IN ARBITRATION OR ANY OTHER PROCEEDINGS.
c. All negotiations, arbitrations and settlement terms are confidential.
d. Claims and controversies involving violation of any of the proprietary rights of SMARTERWILL, including claims in equity or law to protect the intellectual property rights of the Covered Parties, will not be subject to arbitration. SMARTERWILL retains at all times the right to obtain an injunction in court to prevent misuse of any of SMARTERWILL‘s products and services.
15.3. Change of Terms; Modifications. These Terms of Service may be changed from time to time as described below or by written agreement. All provisions of these Terms of Service and the SMARTERWILL Services may be changed by SMARTERWILL immediately upon online posting; as a courtesy to Users SMARTERWILL shall endeavor to provide notice of any such change to the User prior to or immediately after such change has been made. If any changes are made to these Terms of Service, then such changes will: (a) only be applied prospectively; (b) be applied only to SMARTERWILL Services you ordered following the effective date of the modification, and (c) not be specifically directed against you or your Participating Attorneys who are performing Legal Services which have not yet been completed. You may terminate the Agreement if any change to the Terms of Service or change to the SMARTERWILL Services (including the SMARTERWILL Privacy Policy) is unacceptable to you. Continued use of the SMARTERWILL Services following the effective date of any change to these Terms of Service constitutes acceptance of the change, but does not affect the your termination rights. In order for termination to be effective under this Section 15.3, it must be provided in writing within 90 days of any change to the SMARTERWILL Services or Terms of Service. Except as provided in this Section 15.3, the Agreement may not be supplemented, modified or otherwise revised unless signed by duly authorized representatives of both parties. Furthermore, the Agreement may not be supplemented, modified or otherwise revised by email exchange even if the email contains a printed name or signature line bearing signature-like font.
15.4. Notice. Notice to SMARTERWILL shall be made to its:
Chief Legal Officer
Smarter Will™. LLC
Two Prudential Plaza
180 North Stetson, Suite 3500
Chicago, IL 60601
15.5. Acceptance. You warrant and represent that you have the full right, power and authority to enter into the Agreement and to grant the rights granted herein without violating any other agreement or commitment of any kind and that any person accepting the Agreement on your behalf, has the power and authority to enter the Agreement on your behalf.
15.6. Advertisers. The Web Site may contain advertising and sponsorship. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on this Web Site is accurate and complies with applicable laws. SMARTERWILL will not be responsible for the illegality of or any error or inaccuracy in advertisers’ or sponsors’ materials or for the acts or omissions of advertisers and sponsors.
15.7. World Wide Web. To obtain the SMARTERWILL Services, you must obtain and maintain access to the World Wide Web and pay any fees associated with such access. You are responsible for providing all equipment necessary to make such connection to the World Wide Web, including a computer and Internet access.
15.8. Subcontracting. SMARTERWILL may subcontract any work, obligations, or other performance required under the SMARTERWILL Services without your consent.
15.9. Relationship. You and SMARTERWILL are independent contractors. Nothing in the Agreement is intended to or will constitute you or SMARTERWILL as an agent, legal representative, partner, joint venturer, franchisee, employee, or servant of the other for any purpose. Neither you nor SMARTERWILL shall make any contract, commitment, warranty, or representation on behalf of the other, or incur any debt or other obligation in the other’s name.
15.10. Survival. The above Sections 6 (CONFIDENTIALITY; PASSWORDS; REPORTING OF MISUSE; PROPRIETARY INFORMATION), 12 (INDEMNIFICATION), 13 (LIMITED GUARANTEE; DISCLAIMER OF ADDITIONAL GUARANTIES AND WARRANTIES), 14 (LIMITATION OF LIABILITY) and any other terms in the Agreement that by their nature should or typically would survive expiration or termination will survive the expiration or termination of the Agreement.
15.11. Non-Assignment; Successors and Assigns. SMARTERWILL may assign this agreement to any of its affiliates, a purchaser of substantially all of SMARTERWILL’s outstanding shares, or a purchaser of substantially all of its assets to which these Terms of Service relate. You may not assign your rights or delegate your duties under the Agreement. This Agreement will be binding on, and will inure to the benefit of the User’s and SMARTERWILL’s respective successors and permitted assigns.
15.12. Force Majeure. SMARTERWILL will not be liable for any damage, delay, or failure of performance resulting directly or indirectly from a Force Majeure. Force Majeure includes but is not limited to any cessation, interruption, or delay in the performance of its obligations hereunder by reason of earthquake, flood, fire, storm, lightning, drought, landslide, hurricane, cyclone, typhoon, tornado, natural disaster, act of God or the public enemy, epidemic, famine or plague, action of a court or public authority, change in law, explosion, war, terrorism, armed conflict, labor strike, lockout, boycott or similar event beyond our reasonable control, whether foreseen or unforeseen. If a Force Majeure continues for more than sixty days in the aggregate, SMARTERWILL may immediately terminate these Terms of Service and shall have no liability to you for or as a result of any such termination. If a Force Majeure occurs, the affected party will notify the other parties and make commercially reasonable efforts to mitigate the adverse effects of the Force Majeure on the performance of the Agreement.
15.13. Waiver. The failure of either party to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision.
15.14. Severability. If any non-material term of the Agreement is held invalid or unenforceable for any reason, the invalidity will not affect the validity of the remaining provisions of the Agreement, and the parties will substitute a valid provision which most closely approximates the intent and economic effect of the invalid provision.
Additional Provisons:
All Site design, text, graphics, the selection and arrangement thereof, Copyright © 2011, SmarterWill, LLC., ALL RIGHTS RESERVED. All images and text, and all page headers, custom graphics and button icons are service marks, trademarks and/or trade dress are owned by SmarterWill, LLC. All other trademarks, product names and company names or logos cited herein are the property of their respective owners.
Rapidocs Software featured on this Web site is the property of ©Epoq Group Ltd. 2000-2009 and legal form content by SmartLEgalForms, Inc.. Reproduction of part or all of the contents in any form is prohibited other than in accordance with the license terms detailed therein. Software reproduced in and on this Site is the property of ©Epoq Group Ltd. 2000-2011. You may not use (other than as is expressly or impliedly licensed) resell, reverse engineer, decompile or otherwise modify such software.
Document Preparation Service. The Document Preparation Service does not provide legal advice. It is designed to collect relevant information and data to assist in the preparation of a legal document on your behalf.
The Document Preparation Service uses a document assembly and drafting system (“the System”). The responses you give will dictate the content of the document produced.
When using the Document Preparation Service you will be asked a series of questions; the answers you give will dictate the content of the Document produced by the System. You alone are responsible for ensuring the answers or any information that you give is correct (this includes information in relation to the identity of any parties or signatories, their age or capacity). Perrelli Legal Services, LLC relies on you providing the correct information.
You must carefully check that the Document produced fully reflects your wishes. If it does not, you should not execute it. It is your responsibility to ensure that any Document is properly executed in accordance with the instructions that are provided to you.
Documents are prepared in accordance with Illinois law. You should not use them in any jurisdiction outside the State of Illinois or if any person who is to sign it, or the property the Document deals with, is outside of Illinois.
All Documents should be used in conjunction with proper advice from attorneys who are participating in the SmarterWill network to their application and adaptation to your particular circumstances.
Documents completed online will be stored in the document store (“the Document Store”) on the Site for one year after completion. Upon completion of the review of your Document, any Documents held in the Document Store will be deleted, unless you have arranged for them to be archived. Your attorney will also maintain a copy of the documents prepared for you for a limited period of time.
