Effective Date: MONTH 9, 2025
Welcome to SM3 Marketing's website. These Terms of Use (referred to herein as the "Agreement" or "Terms") govern your use of the sm3marketing.com website (the "Site") and any other written, electronic, and oral communications with SM3 Marketing, or any websites, pages, features, or content owned and operated by SM3 Marketing (collectively, including the Site, the "Services"). You must be age 16 or older to use the Services.
PLEASE NOTE THAT, BY USING THE SERVICES, YOU AGREE TO THE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE SERVICES.
PLEASE BE AWARE THAT THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND SM3 MARKETING. AMONG OTHER THINGS, IT INCLUDES AN AGREEMENT TO ARBITRATE, WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND SM3 MARKETING SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. IT ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS AGREEMENT CAREFULLY.
UNLESS YOU OPT OUT OF THIS AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
The Site is provided by SM3 Marketing, LLC. Where applicable "SM3 Marketing," the "Company," "we," "us," and "our" shall refer to SM3 Marketing, LLC, and "you" or "your" shall refer to the user of the Services. The Services are intended to provide information about our B2B marketing and lead generation offerings. The actual provision of paid marketing services is governed by a separate, executed agreement between you and SM3 Marketing, if applicable.
We reserve the right to change, modify, add or remove sections of these Terms, at any time, in our sole discretion. You are responsible for checking these Terms for any changes whenever you use the Services. When changes are made, we will make a new copy of these Terms available on the Services, and we will also update the "Last Updated" date at the top of the Terms. We may also require you to provide consent to the updated Terms in a specified manner before further use of the Services (or certain functionality thereof) is permitted. By continuing to use or access any of the Services or otherwise engaging with SM3 Marketing after the posting of changes, you accept and agree to any such changes. IF YOU DO NOT AGREE TO ANY CHANGE(S), YOU MUST STOP USING THE SERVICES.
Your use of, and participation in, certain features and functionality of the Services may be subject to additional terms, such as our Privacy Policy ("Supplemental Terms"), the terms of which are hereby incorporated by reference.
Unless noted otherwise in the applicable Section herein, by accessing or using the Site and its Services in any way, including browsing the website, you affirm that you have read, understood, and agree to be bound by this Agreement. If you are using the Services on behalf of a company or other legal entity, you represent that you have the authority to bind that entity and its affiliates to this Agreement, in which case the terms "you" or "your" shall refer to that entity and its affiliates.
PLEASE BE AWARE THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND SM3 MARKETING ARE RESOLVED. SPECIFICALLY, SECTION 11 CONTAINS A MANDATORY ARBITRATION AGREEMENT AND A CLASS ACTION WAIVER, WHICH AFFECT YOUR LEGAL RIGHTS. THIS AGREEMENT ALSO CONTAINS IMPORTANT DISCLAIMERS OF WARRANTIES AND LIMITATIONS ON OUR LIABILITY IN SECTION 10, AND YOUR EXPRESS CONSENT TO BE CONTACTED BY US IN SECTION 6.
If you do not agree to be bound by this Agreement, you may not access or use the Services.
Your privacy is important to us. Our Privacy Policy (also accessible by hyperlink via navigation to the Site's lower third) governs the collection, use, and disclosure of your personal information submitted through the Services.
The Privacy Policy is incorporated into this Agreement by reference. By accepting these Terms, you also acknowledge and agree to the terms of our Privacy Policy. We encourage you to review it carefully to understand our data practices.
Subject to your compliance with this Agreement, SM3 Marketing hereby grants you a limited, revocable, non-transferable and non-exclusive license to access and use the Services solely for the purpose of evaluating our professional marketing services for your own internal business use. Any use of the Services not expressly permitted by these Terms is prohibited. Any breach of this Agreement shall result in the immediate revocation of the license granted in this paragraph without notice to you.
You agree that you will not, under any circumstances, do any of the following:
Our Services may provide you with access to, or invite you to join, communities or platforms that are not owned or operated by SM3 Marketing (e.g., our group on Skool.com) ("Third-Party Platforms").
To access these features, you may be required to create a user account directly with the operators of such Third-Party Platforms. Your account creation, security, and use of that platform will be governed by that third party's own terms of use and privacy policy, not ours. You are solely responsible for protecting the confidentiality of your account credentials for any Third-Party Platform.
While we do not control your account on a Third-Party Platform, we reserve the right to remove or terminate your access to our specific groups, forums, or content hosted on such platforms at our sole discretion, including for any violation of our policies or conduct we deem harmful to our community or interests. We disclaim all liability for any loss, data breach, or other harm you may suffer in connection with your use of Third-Party Platforms.
You agree to provide valid, complete, and accurate information—including but not limited to your name, email address, and telephone number—whenever prompted by the Services, such as when filling out our contact or opt-in forms.
You acknowledge that we rely on this information to provide our Services and to ensure our communications with you are compliant with applicable laws, including but not limited to the Telephone Consumer Protection Act (the "TCPA") and its many state-specific counterparts. You have a continuing obligation to ensure your information is current and to promptly notify us of any changes.
WITHOUT LIMITATION, HOW YOU AND SM3 MARKETING (INCLUDING OUR AGENTS, CONTRACTORS, EMPLOYEES, AFFILIATES, SUCCESSORS, AND ASSIGNS) MAY COMMUNICATE BY TELEPHONE, EMAIL, TEXT MESSAGE, ONLINE FORM, OR LIVE CHAT IS SUBJECT TO THESE COMPLETE TERMS, WHICH CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED (SEE LEGAL DISPUTES AND ARBITRATION AGREEMENT SECTION BELOW), INCLUDING AN OBLIGATION TO ARBITRATE DISPUTES, WHICH WILL, SUBJECT TO LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US, INCLUDING WITHOUT LIMITATION, ANY CLAIMS RELATING TO TEXT MESSAGES YOU RECEIVE FROM US, TO BINDING ARBITRATION, UNLESS YOU OPT-OUT IN ACCORDANCE WITH THE ARBITRATION SECTION BELOW.
Unless a sub-section provides otherwise, the consent described in this Section 5 allows SM3 Marketing, its agents, its affiliates, its assigns, and its successors-in-interest to send you marketing and informational communications regarding our services. Contact may be made using emails, telephone calls, and text messages to the number you provided, even if that number is on a federal, state, or corporate Do Not Call list.
If you call SM3 Marketing's customer service line, you acknowledge that you are providing your prior express consent to receive return communications from us (including calls or texts) on any issue you contact about at any telephone number or other contact information you provide. You also acknowledge that your consent is not a condition of any purchase of goods or services and that message and data rates may apply.
In the event that you (a) voluntarily provide your telephone number and email address on our Site's opt-in form and (b) affirmatively agree to these Terms thereon, you agree that you are providing us with your prior express written consent to be contacted. You acknowledge that this consent may include calls or texts sent using an automated telephone dialing system or other automated, prerecorded, or artificial intelligence-driven technology. You also acknowledge that your consent is not a condition of any purchase of goods or services and that message and data rates may apply.
You represent and warrant that any number from which you place the call is valid, that you are authorized to give consent for that number, and that it is not a VoIP line (including Google Voice) or other number intended to mask its true nature. You further represent that (i) the name, email address, and any phone number you provide are accurate, truthful, and belong to you, and (ii) you have not submitted false or misleading information. Submission of any fraudulent or fictitious information is grounds for denial of service and may subject you to legal liability. You also represent the time zone you select in our forms is your current, primary local time zone where you reside. You expressly agree that SM3 Marketing will rely exclusively on the time zone information you provide for the purpose of complying with all federal and state regulations regarding telemarketing "quiet hours." You agree that this selected time zone shall be considered your official local time for the purposes of this Agreement, regardless of your physical location when you receive a communication from us. You have a continuing obligation to promptly update your information if it changes, including if you move to a new primary time zone.
You may revoke your consent and opt-out of communications at any time. To stop receiving text messages, you must reply "STOP" to any message you receive from us. To unsubscribe from emails, click the "unsubscribe" link provided in the email.
The Services, including all features and materials such as text, logos, graphics, and software (collectively, "Content"), are the property of SM3 Marketing or its licensors and are protected by copyright and other intellectual property laws. The SM3 Marketing name, logo, and all related names and slogans are trademarks ("Marks") of the Company. You are not granted any right, title, or interest in or to the Content or Marks. The Marks may not be used by you without the express written permission of SM3 Marketing. All other trademarks not owned by SM3 Marketing that appear in connection with the Services are the property of their respective owners, who may not be affiliated with, connected to, or sponsored by SM3 Marketing. Use of the Marks on any portion of the Services, is not a representation that SM3 Marketing is the owner of any such copyright or other intellectual property rights.
You acknowledge and agree that SM3 Marketing may collect, analyze, and use aggregated, non-personally identifiable data from advertising campaigns and platform performance for internal purposes, including performance benchmarking, marketing optimization, and AI training and model development. All such data will be used in a way that does not reveal your identity, your proprietary information, or the personally identifiable information of your leads or customers. SM3 Marketing retains the right to leverage this anonymized data to build and improve our internal tools, AI systems, and automation processes.
The Content on the Services is intended solely for personal, non-commercial use. You may not download, copy, reproduce, distribute, transmit, broadcast, display, perform, reproduce, publish, sell, license, create derivative works from, or otherwise exploit any Content, software, or service contained on the Services without the prior written consent of the Company or the respective owners. You may not use any of the Content to further any commercial purpose, including any advertising or advertising revenue generation on your own website, social media account or in any other form or medium. You hereby grant to SM3 Marketing (and its affiliates, assignees, or survivors in interest) a world-wide, perpetual, warranty-free, irrevocable license to freely duplicate, use, or incorporate any questions, comments, suggestions, ideas, feedback or other information about the Services that you provide to us. You further acknowledge and agree that all of the foregoing is not confidential and is subject to the Company's review and monitoring. You agree not to circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Services or the Content therein. We reserve all rights not expressly granted in and to the Content.
You understand and agree that SM3 Marketing makes no warranties, promises, suggestions, projections, representations, or guarantees of any kind regarding future prospects, profits, lead volume, or earnings. We do not guarantee that you will earn any money or achieve any particular level of business success as a result of using our services. Any earnings or income statements on our Site are illustrative estimates of potential and are not to be considered average or guaranteed earnings.
Your success in using the information or strategies provided by SM3 Marketing depends on a variety of factors. We have no way of knowing how well you will do, as your success will be determined by your own background, work ethic, dedication, business skills, and market conditions. Therefore, we do not guarantee or imply that you will achieve any specific results or have any earnings at all. You must accept the entire risk of not doing as well as any examples provided.
The testimonials, case studies, and "Client Wins" found on our Site represent exceptional results. They do not reflect the experience of every client and are not intended to represent or guarantee that anyone will achieve the same or similar results. The business experiences described are specific to that individual client, and your financial results may differ.
Any statements on our website or in our materials that mention potential earnings, lead volume, or performance are intended to express our opinion of potential. They are illustrative estimates, not guarantees of actual performance. Many factors will be important in determining your actual results, and no guarantees are made that you will achieve results similar to ours or anyone else's.
You are advised to do your own due diligence when it comes to making business decisions. You should use caution and seek the advice of qualified professionals, including your accountant, lawyer, or other professional advisors, before acting on this or any information. Internet-based businesses and earnings derived therefrom involve unknown risks and are not suitable for everyone. You may not rely on any information presented on the Site unless you do so with the knowledge and understanding that you can experience significant losses.
You acknowledge that your results can be significantly affected by factors entirely outside of SM3 Marketing's control. These factors include, but are not limited to:
SM3 Marketing assumes no responsibility for any losses or damages resulting from these external factors.
You should assume that SM3 Marketing may have a "material connection" or affiliate relationship with providers of certain third-party services mentioned on our Site.
This means we may receive a monetary commission or other non-monetary compensation if you click on an affiliate link and subsequently make a purchase from that provider. This applies to, but is not limited to, our recommendations for software platforms, educational communities, and other business tools.
We only recommend services that we believe, in good faith, will provide value to our clients and audience. Our recommendations are based on our professional experience with and research into these services. The opinions we express about these third-party services are our own and are not necessarily the opinions of, nor are they dictated by, the third-party providers.
Because a material connection may exist, you should assume that our opinion of a third-party service could be influenced by our affiliate relationship. We urge you not to rely solely on our recommendation and to always perform your own independent research and due diligence before purchasing any third-party service. Your decision to purchase should be based on your own investigation and needs. If you have any questions about our relationship with a specific third-party provider mentioned on our Site, please do not hesitate to contact us for clarification.
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF SM3 MARKETING TO YOU.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL SM3 MARKETING BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, LOSS OF BUSINESS OR MANAGEMENT TIME, BUSINESS INTERRUPTION, LOSS OF INCOME OR SALES, OPERATING LOSS, LOSS OF PROFITS OR CONTRACTS, LOSS OF FORECAST SAVINGS, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT SM3 MARKETING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION SUCH DAMAGES FROM: (A) THE USE OR INABILITY TO USE THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED THROUGH THE SERVICES; (C) UNAUTHORIZED ACCESS TO, LOSS OF, OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON THE SERVICES; OR (E) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
THE LIMITATIONS OF LIABILITY AND DISCLAIMERS OF DAMAGES IN THIS SECTION 11 SHALL NOT APPLY TO SM3 MARKETING'S LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY SM3 MARKETING'S NEGLIGENCE; OR (ii) ANY INJURY CAUSED BY SM3 MARKETING'S FRAUD OR FRAUDULENT MISREPRESENTATION. IN ADDITION, CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SM3 MARKETING AND YOU.
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF SM3 MARKETING TO YOU.
BY USING THE SERVICES, YOU HEREBY ACKNOWLEDGE AND AGREE THAT WE ARE PROVIDING THE SERVICES, INCLUDING THE SITE AND APP, ON AN "AS IS" "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, AND TO THE EXTENT PERMITTED BY LAW, THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND RELATING TO THE SERVICES, INCLUDING ANY WARRANTY OR CONDITION OF MERCHANTABILITY, TITLE, ACCURACY, COMPLETENESS, LEGALITY, UNINTERRUPTED OR ERROR-FREE SERVICE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. WE MAKE NO PROMISES WITH RESPECT TO, AND EXPRESSLY DISCLAIM ALL LIABILITY FOR: (1) SERVICES, INFORMATION, PROGRAMMING, AND/OR ANYTHING ELSE PROVIDED BY A THIRD PARTY THAT IS ACCESSIBLE TO YOU THROUGH THE SERVICES; OR (2) THE QUALITY OR CONDUCT OF ANY THIRD PARTY YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE SERVICES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
INFORMATION ON OUR WEBSITE SHOULD NOT NECESSARILY BE RELIED UPON AND SHOULD NOT TO BE CONSTRUED TO BE PROFESSIONAL ADVICE FROM US. WE DO NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY OF THE INFORMATION PROVIDED, AND ARE NOT RESPONSIBLE FOR ANY LOSS RESULTING FROM YOUR RELIANCE ON SUCH INFORMATION.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR EXCLUSIONS OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. AS A RESULT, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU IN WHOLE OR IN PART. YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE SITE SHALL BE TO DISCONTINUE USING THE SITE.
PLEASE READ THE FOLLOWING CLAUSES CAREFULLY -- IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
Subject to the terms of this Arbitration Agreement, you and SM3 Marketing agree that any dispute, claim, disagreement arising out of or relating in any way to your access to or use of the Site, Services or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each a "Dispute"), will be resolved by binding arbitration, rather than in court, except that (i) you and SM3 Marketing may assert claims or seek relief in a small claims court if such claims qualify and remain in small claims court; and (ii) you and SM3 Marketing may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
YOU AND SM3 MARKETING HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and SM3 Marketing are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the paragraph entitled "Applicability of Arbitration Agreement" above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review. Discovery may be limited in arbitration, and procedures are more streamlined than in court.
YOU AND SM3 MARKETING AGREE THAT, EXCEPT AS SPECIFIED IN THE PARAGRAPH ENTITLED "BATCH ARBITRATION" BELOW, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. To the extent permissible by law, there shall be no right or authority for any dispute to be arbitrated as a representative action or as a private attorney general action, including but not limited to claims brought pursuant to the Private Attorney General Act of 2004, Cal. Lab. Code § 2698, et seq. This means that you may not seek relief on behalf of any other parties in arbitration. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this paragraph, "Class Action Waiver" are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and SM3 Marketing agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and shall be pursued in the courts indicated in paragraph 11.12 below. All other Disputes shall be arbitrated or litigated in small claims court. This paragraph does not prevent you or SM3 Marketing from participating in a class-wide settlement of claims.
You and SM3 Marketing agree to try to resolve any Dispute informally before resorting to arbitration. You and SM3 Marketing therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement ("Informal Dispute Resolution Conference"). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference ("Notice"), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to SM3 Marketing that you intend to initiate an Informal Dispute Resolution Conference must be sent to SM3 Marketing (i) via regular mail to SM3 Marketing, LLC, [Address Placeholder] or (ii) via [Alternative Contact Method]. Notice to you will be sent to the address or email address associated with your account or to your publicly available address or email address if you do not have an account with us. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
You and SM3 Marketing agree that this Arbitration Agreement affects interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., applies. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and SM3 Marketing agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS's most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other Disputes shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. Any arbitration of a Dispute relating to your access to or use of the Site, or Services, shall also be subject to the allocation of arbitration costs and other requirements of the JAMS' policy regarding Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness available at https://www.jamsadr.com/consumer-minimum-standards/. JAMS's rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS Arbitration Rules. If there is a conflict between the JAMS rules and this Arbitration Agreement, this Arbitration Agreement shall control.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the "Request"). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. To initiate arbitration, you must send the Request via regular mail to SM3 Marketing, LLC, to SM3 Marketing (i) via regular mail to SM3 Marketing, LLC, [Address Placeholder]. If we initiate arbitration, we will send the Request to the address or email address associated with your account or to your publicly available address or email address if you do not have an account with us. The parties shall bear their own attorneys' fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Unless you and SM3 Marketing otherwise agree, or the Batch Arbitration process discussed below is triggered, the arbitration will be conducted in the county where you reside.
To increase the efficiency of administration and resolution of arbitrations, you and SM3 Marketing agree that in the event that there are twenty five (25) or more individual Requests of a substantially similar nature filed against SM3 Marketing by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award ("Batch Arbitration"). All parties agree that Requests are of a "substantially similar nature" if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process ("Administrative Arbitrator"). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator's fees shall be paid by SM3 Marketing. You and SM3 Marketing agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the paragraph entitled "Class Action Waiver," including any claim that that same paragraph is unenforceable, illegal, void or voidable, or that it has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the paragraph entitled "Batch Arbitration," all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to SM3 Marketing (i) via regular mail to SM3 Marketing, LLC, [Address Placeholder] or (ii) via [Alternative Contact Method] within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us. If the Dispute is not covered by any arbitration agreement between you and us, it shall proceed before the courts indicated in paragraph 11.12 below.
Except as provided in the paragraph entitled "Class Action Waiver", if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with SM3 Marketing as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Notwithstanding any provision in these Terms to the contrary, we agree that if SM3 Marketing makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to SM3 Marketing (i) via regular mail to SM3 Marketing, LLC, [Address Placeholder] or (ii) via [Alternative Contact Method], your continued use of the Site and/or Services, including the acceptance and use of services offered on the Site following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services or of the Site or these Terms, the provisions of this Arbitration Agreement as of the date you first accepted the Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. SM3 Marketing will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
To the extent that the Dispute is not covered by any arbitration agreement between you and us, it shall proceed before the state or federal courts located in Florida (except for small claims court actions which may be brought in the county where you reside).
You may not assign or transfer this Agreement (or any of your rights or obligations under this Agreement) without prior written consent of SM3 Marketing. Any attempted assignment or transfer without complying with the foregoing will be void. We may freely assign or transfer this Agreement. This Agreement inures to the benefit of and is binding upon the parties and their respective legal representatives, successors, and assigns.
These Terms, together with our Privacy Policy, and any other legal notices and polices published on the Site, shall constitute the entire agreement between you and us concerning the Services, and supersedes all prior terms, agreements, discussions, and writings regarding the Services. If any provision of the Terms is found to be unenforceable, then that provision shall not affect the validity of the remaining provisions of the Terms, which shall remain in full force and effect. No waiver of any term of the Terms shall be deemed a further or continuing waiver of such term or any other term. Our failure to assert any right or provision under the Terms shall not constitute a waiver of such right or provision.
The communications between you and SM3 Marketing may take place via electronic means, whether you visit the Services or send SM3 Marketing e-mails, or whether SM3 Marketing posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from SM3 Marketing in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SM3 Marketing electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. ("E-Sign").
You agree to release, indemnify, and defend the Company and any subsidiaries, affiliates, related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each from all third-party claims and costs (including reasonable attorneys' fees) arising out of or related to: (1) your use of the Services; (2) your conduct or interactions with other users of the Services; and (3) your breach of these Terms. We will notify you promptly of any such claim and will provide you (at your expense) with reasonable assistance in defending the claim. You will allow us to participate in the defense and will not settle any such claim without our prior written consent. We reserve the right, at our own expense, to assume the exclusive defense of any matter otherwise subject to indemnification by you. In that event, you will have no further obligation to defend us in that matter. This provision does not require you to indemnify SM3 Marketing for any unconscionable commercial practice by SM3 Marketing or for SM3 Marketing's fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services provided hereunder.
In construing or interpreting the Terms, headings are for convenience only, and not to be considered.
These Terms shall be governed by the laws of the State of Florida, consistent with the federal arbitration act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and SM3 Marketing agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in Florida.
Where SM3 Marketing requires that you provide an e-mail address, you are responsible for providing SM3 Marketing with a valid and current e-mail address. In the event that the e-mail address you provided to SM3 Marketing is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, SM3 Marketing's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to SM3 Marketing (i) via regular mail to SM3 Marketing, LLC, [Address Placeholder] or (ii) via [Alternative Contact Method]. Such notice shall be deemed given when received by SM3 Marketing's agent for service of process.
If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.
As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others. If you believe that material located on or linked to by the Services violates your copyright, trademark, or other intellectual property rights, you may send a notice of claimed infringement to SM3 Marketing (i) via regular mail to SM3 Marketing, LLC, [Address Placeholder] or (ii) via [Alternative Contact Method] with the subject "Takedown Request." Any such notice must include the following information:
Upon receipt of such notices, we reserve the right to remove or disable access to the material or disable any links to the material; notify the party accused of infringement that we have removed or disabled access to the applicable material; and terminate access to and use of the Services for any user who repeatedly infringes the intellectual property rights of SM3 Marketing or others, or as otherwise stated in this Agreement or our policies.
If you believe that material you posted on the Services was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us through the means designated above in paragraph 13.1. In accordance with the Digital Millennium Copyright Act ("DMCA"), your notice must include substantially the following:
The removed material may be replaced or access to it may be restored 10 to 14 business days after the counter notice is processed unless the party claiming infringement files a lawsuit against you. Please be aware that if you misrepresent that material is not infringing, you may be liable for damages or penalties (including costs and attorneys' fees). SM3 Marketing reserves the right to reject any counter notifications filed in bad faith.
We welcome your questions and comments about our privacy practices or these Terms. You may contact us anytime at (i) via regular mail to SM3 Marketing, LLC, 877 EXECUTIVE CENTER DR W STE 300, SAINT PETERSBURG FL 33702-2474 or (ii) contact via email joe@sm3marketing.com
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