Terms & Conditions

IMPORTANT – PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS AND CONDITIONS OF USE & SALE BEFORE ACCESSING, USING, OR SUBSCRIBING OR PLACING AN ORDER WITH WWW.TMDSMARTMEDIA.CO.UK. THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITIES (see Sections 11, 16, and 17). THESE TERMS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT. PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.

The use of www.TMDSMARTMEDIA.CO.UK (hereafter “Website”), which is owned and maintained by TMD SMART MEDIA (“TMD SMART MEDIA,” “we,” “our,” “us”), is governed by the terms and conditions set forth below. We offer the Website, including all information, tools, and services available from the Website to you, the user, conditioned upon your acceptance of all terms and conditions stated here. By accessing, using, subscribing, or placing an order over the Website, you and your business agree to the terms set forth herein. If you do not agree to these terms and conditions in their entirety, you are not authorized to use the Website in any manner or form whatsoever.  

THIS IS A BINDING AGREEMENT. THESE TERMS AND CONDITIONS OF USE & SALE (“TERMS”) TOGETHER WITH OUR PRIVACY POLICY FORM A LEGALLY BINDING AGREEMENT (“AGREEMENT”) BETWEEN YOU AND YOUR BUSINESS (“YOU”) AND TMD DIGITAL MARKETING. THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE WEBSITE AND THE SERVICES PROVIDED BY TMD DIGITAL MARKETING, ANY ORDER YOU PLACE THROUGH THE WEBSITE, BY TELEPHONE, OR OTHER ACCEPTED METHOD OF PURCHASE AND, AS APPLICABLE, YOUR USE OR ATTEMPTED USE OF THE PRODUCTS OR SERVICES OFFERED ON OR AVAILABLE THROUGH THE WEBSITE.

THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW IN SECTION 18.  

TMD SMART MEDIA reserves the right to update and change, from time to time, these Terms and all documents incorporated by reference by posting updates and/or changes to our Website. It is your responsibility to check this page periodically for changes. You can find the most recent version of these Terms at https://www.TMDSMARTMEDIA.CO.UK/terms. Use of the Website after such changes constitutes acceptance of such changes. Any new features or tools which are added to the current Website shall also be subject to the Terms.

SECTION 1 – WEBSITE USE

The Website is intended for businesses operated by adults. If you use the Website, you are affirming that you are at least 18 years old or the legal age of majority in your state or province of residence (whichever is greater), operate a business, have the legal capacity to enter into a binding contract with us, and have read this Agreement and understand and agree to its terms.

SECTION 2 – WEBSITE USER CONDUCT AND RESTRICTIONS-LICENSE TERMS

All aspects of our Website are protected by U.S. and UK international copyright, trademark, and other intellectual property laws, including all content, information, design elements, text material, logos, taglines, metatags, hashtags, photographic images, testimonials, personal stories, icons, video and audio clips, and downloads. No material on the Website may be copied, reproduced, distributed, republished, uploaded, displayed, posted, or transmitted in any way whatsoever. The TMD Smart Media trademark and logo are proprietary marks of TMD SMART MEDIA, and the use of those marks is strictly prohibited. Nothing herein gives you the right to use, copy, register as a domain name, reproduce, or otherwise display any logo, tagline, trademark, trade name, copyrighted material, patent, trade dress, trade secret, or confidential information owned by TMD SMART MEDIA.

Subject to your continued strict compliance with all Terms, TMD SMART MEDIA provides to you a revocable, limited, non-exclusive, royalty-free, non-sublicenseable, non-transferrable license to use the Website. You acknowledge and agree that you do not acquire any ownership rights in any material protected by intellectual property laws. 

If you purchase a service over the Website, TMD SMART MEDIA provides to you a revocable, limited, non-exclusive, non-sublicensable, non-transferable license to use this service. You acknowledge and agree that: (1) the service is copyrighted material under United States and international copyright laws that is exclusively owned by TMD SMART MEDIA; (2) you do not acquire any ownership rights in the service; (3) you may not modify, publish, transmit, participate in the transfer or sale, or create derivative works from the content of the service; (4) except as otherwise expressly permitted under copyright law, you may not copy, redistribute, publish, display or commercially exploit any material from the service without the express written permission of TMD SMART MEDIA; and (5) in the event of any permitted copying (e.g., from the Website to your computer system), no changes in or deletion of author attribution, trademark, legend or copyright notice shall be made.  

You agree not to use or attempt to use the Website or any service provided by TMD SMART MEDIA, whether alone, or in conjunction with other software or hardware, in any unlawful manner or a manner harmful to TMD SMART MEDIA. You further agree not to commit any harmful or unlawful act or attempt to commit any harmful or unlawful act on or through the Website or through use of any software or hardware including, but not limited to, refraining from: 

HARMFUL ACTS. Any dishonest or unethical business practice; any violation of the law; infliction of harm to TMD SMART MEDIA’s reputation; hacking and other digital or physical attacks on the Website; and the violation of the rights of TMD SMART MEDIA or any third party;

“SPAMMING” AND UNSOLICITED COMMUNICATIONS. We have zero tolerance for spam and unsolicited communications. Any communications sent or authorized by you reasonably deemed “spamming,” or any other unsolicited solicitations (including without limitation postings on social media or third party blogs) will be deemed a material threat to TMD DIGITAL MARKETING’s reputation and to the rights of third parties. It is your obligation, exclusively, to ensure that all business communications comply with state and local anti-spamming or analogous laws.

OFFENSIVE COMMUNICATIONS. Any communication sent, posted, or authorized by you, including without limitation postings on any website operated by you, or social media or blog, which are: sexually explicit, obscene, vulgar, or pornographic; offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory; graphically violent; or solicitous of unlawful behavior.  

SENSITIVE INFORMATION. You will not import, or incorporate into, any contact lists or other content you upload to any website, software, or other electronic service hosted, provided by or connected to TMD SMART MEDIA, any of the following information: social security numbers, national insurance numbers, credit card data, passwords, security credentials, bank account numbers, or sensitive personal, health or financial information of any kind.

ILLEGAL BUSINESS ACTIVITY. Any promotion of illegal business activity, including without limitation multi-level marketing (except in compliance with the FTC’s Business Guidance Concerning Multi-Level Marketing, see www.ftc.gov/tips-advice/business-center/guidance/business-guidance-concerning-multi-level-marketing), promoting the sale or use of illegal drugs (including but not limited to Marijuana-derived CBD Oil); or infringing or promoting the infringement of the intellectual property rights of another.

In addition to the foregoing, TMD SMART MEDIA requires you to follow these best practices when sending electronic communications:

Use only permission-based marketing electronic communications lists (i.e., lists in which each recipient affirmatively opted-in to receiving those electronic communications).

Always include a working “unsubscribe” mechanism in each marketing electronic communication that allows the recipient to opt out from your mailing list (receipt/transactional messages that are exempt from “unsubscribe” requirements of applicable law are exempt from this requirement).

Comply with all requests from recipients to be removed from your mailing list within the earlier of ten (10) days of receipt of the request, or the deadline under applicable law.

Maintain, publish, and comply with a privacy policy that meets all applicable legal requirements, whether or not you control the sending of the electronic communications, and include a link to such privacy policy in your electronic communications.

Include in each electronic communication a link to your then-current privacy policy applicable to that electronic communication.

Include in each electronic communication your valid physical mailing address or a link to that information.

Do not use third party electronic addresses, domain names, or mail servers without proper permission from the third party.

Do not routinely send electronic communications to non-specific addresses (e.g., [email protected] or [email protected]).

Do not engage in spamming.

Do not disguise the origin, or subject matter of, any electronic communications or falsify or manipulate the originating message address, subject line, header, or transmission path information for any electronic communication.

Do not send offers to obtain or attempt to obtain personal information, or generate leads, for third parties.

Do not send “chain letters,” “pyramid schemes,” or other types of electronic messages that encourage the recipient to forward the content to strangers.

Do not employ sending practises, or have overall message delivery rates, which may cause harm to our services or other users of our services.

You further agree to conduct yourself and all of your businesses in full compliance with all applicable laws, whether through the use of TMD SMART MEDIA or otherwise.

SECTION 3 – OUR PRIVACY POLICY AND YOUR PERSONAL INFORMATION

We respect your privacy and the use and protection of your non-public, personal information. Your submission of personal information through the Website is governed by our Privacy Policy. Our Privacy Policy may be viewed at https://www.TMDSMARTMEDIA.co.uk/privacy TMD SMART MEDIA reserves the right to modify its Privacy Policy in its reasonable discretion from time-to-time. Our Privacy Policy is incorporated into this Agreement by reference.

SECTION 4 – INFORMATION YOU PROVIDE; REGISTRATION; PASSWORDS; PROHIBITION AGAINST HOSTING THIRD-PARTY AGENCY ACCOUNTS

As an TMD SMART MEDIA user, you will be required to create an account with TMD SMART MEDIA. You warrant that the information you provide us is truthful and accurate, and that you are not impersonating another person. You are responsible for maintaining the confidentiality of any information you share with your TMD SMART MEDIA client account, and you agree not to transfer this data, or lend or otherwise transfer your use of or access to your user account, to any third party. Should your usage data indicate, in TMD SMART MEDIA sole and exclusive discretion, that you are operating an agency account, you will be subject to cancellation of your TMD SMART MEDIA user account or enhanced pricing for your TMD SMART MEDIA user account, at TMD SMART MEDIA’s sole and exclusive discretion. You are fully responsible for all transactions with, and information conveyed to, TMD SMART MEDIA under your user account. You agree to immediately notify TMD SMART MEDIA of any unauthorized use of your information or user name or any other breach of security related to your user account. You agree that TMD SMART MEDIA is not liable, and you will hold TMD SMART MEDIA harmless, for any loss or damage arising from your failure to comply with any of the foregoing obligations. Please see Section 20 below for additional information.

SECTION 5 – ORDER PLACEMENT AND ACCEPTANCE

If you order a service or product, payment must be received by us before your order is accepted. We may require additional information regarding your order if any required information was missing or inaccurate, and may cancel or limit an order any time after it has been placed. Your electronic order confirmation, or any form of confirmation, does not signify our acceptance of your order. You must contact us immediately at [email protected] in order to modify or cancel your pending order. We cannot guarantee that we will be able to amend your order in accordance with your instructions. 

All items are subject to availability. We will notify you if any item is not available, the expected availability date, and may offer you an alternative product or service. If the availability of any product or service is delayed and you do not wish to substitute the product or service, upon your request, we will cancel your order and if previously charged, your payment card will be fully refunded for that specific order. We reserve the right to limit the sales of our products and services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis at our sole and exclusive discretion.  

Your purchase order of products and other services is conditioned on you re-affirming your acceptance of this Agreement.  

All advertised prices are in multiple currencies and the currency provided to you upon quotation will be the currency required for paying for any products or services.

SECTION 6 – REFUNDS FOR HARD GOODS

If you have purchased a “hard good” (for example, a book or other tangible product) from TMD SMART MEDIA or any related brands, you may receive a limited refund if you comply with the following conditions:

1. You must request a refund in writing by contacting [email protected]

2. Your request for a refund must be made within thirty (30) days of your purchase;

3. You must return the hard goods to TMD SMART MEDIA immediately, according to the shipping and other instructions you will receive by email after requesting a refund;

4. The hard goods must be returned to TMD SMART MEDIA in like-new, or re-sellable condition, as determined in TMD SMART MEDIA’s sole, reasonable discretion.

SECTION 7 – TRIAL OFFER, AUTOMATIC ENROLLMENT AND PAYMENT, AND CANCELLATION

Where we offer you a free trial of TMD SMART MEDIA, such free trial will start immediately after your registration and continue for the free trial offer period as indicated on the Website at the time you register. Free trial subscriptions are only available upon request of TMD SMART MEDIA and for the limited periods as set out on the Website. Previous subscribers or those subscribers who have already benefited from a free trial subscription to TMD SMART MEDIA do not qualify for a further free trial period.

TMD SMART MEDIA can change the price per lead subscription rate at any time. If the price per lead subscription rate changes after you subscribe, we will notify you by e-mail and give you an opportunity to cancel.

If you wish to cancel your TMD SMART MEDIA subscription at any time after a free trial or discounted period ends, you must submit a cancellation request to us via our support email address [email protected] For monthly subscriptions, we require at least ten (10) days’ notice of cancellation by e-mail. If you provide such notice less than ten (10) days before the first day of your next subscription month, your credit card may still be charged. You will not be entitled to pro-rate your last month’s use, nor will you be entitled to any refund for any payments to TMD SMART MEDIA. 

SECTION 8 – SUBSCRIPTION TERMS AND AUTOMATIC PAYMENT 

A TMD SMART MEDIA user is responsible for paying all sums due to TMD SMART MEDIA in connection with their monthly subscription and agreed amount of leads in accordance with these Terms. The first fee payable in accordance with these Terms is due when the user account is set up and payment of the lead price is a condition of access, or after your free trial ends and you have not cancelled the automatic subscription with us. 

Clients can pay by credit card or debit card. Payment details shall be collected by us through our secure financial data collection mechanism. You acknowledge and agree that we hold data relating to the transaction, including the last four digits and the expiration date of the card used to purchase the products or services together with details on when payment is due. You further acknowledge and agree that payments are due on a recurring basis in accordance with the payment terms for the specific service purchased (unless the subscription is cancelled in accordance with these Terms) and therefore authorize the automatic payment collection terms applicable to that specific service (e.g., on a monthly basis and for a specific amount).  

IF YOU ARE A TMD SMART MEDIA USER WITH A MONTHLY SUBSCRIPTION AND YOU HAVE PROVIDED US WITH A VALID CREDIT OR DEBIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, EACH PAYMENT WILL BE AUTOMATICALLY PROCESSED AT THE TIME OF YOUR DESIGNATED PAYMENT DATE (MONTHLY) AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR ENROLLMENT. IF YOU WISH TO CANCEL YOUR SUBSCRIPTION TO TMD SMART MEDIA, YOU MAY DO SO BY E-MAILING [email protected] AT LEAST TEN (10) DAYS BEFORE THE FIRST DAY OF YOUR NEXT SUBSCRIPTION MONTH.

TMD SMART MEDIA reserves the right to immediately terminate a user’s account and/or service for any unpaid (in whole or part) period of the subscription (with or without notice). Termination of service in no way relieves or excuses the user from any obligation to pay outstanding charges or expenses. In the event TMD SMART MEDIA starts collection processes of any type, you will be liable for all collection costs, including legal fees and expenses, as provided in Section 20 below. 

In addition to any Fees, TMD SMART MEDIA may also charge applicable value added or other tax.

SECTION 9 – SHIPPING FEES

Unless otherwise stated on the Website at the time of purchase, if we ship you a physical product, we reserve the right to add applicable shipping and handling fees to your order. Unless otherwise stated, we will use commercially reasonable efforts to fulfil your order within a reasonable time after receipt of your properly completed and verified order. Accurate shipping address and phone number information is required. Although we may provide delivery or shipment timeframes or dates, such dates are good-faith estimates and are subject to change. If your order will be delayed, we will contact you at the e-mail address you provided when placing your order. If we are unable to contact you or you would like to cancel your order, we will cancel the order and refund the full amount charged. We shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery caused by any third party carrier or other delivery service not owned or controlled by us. The risk of loss and title for such items pass to you upon our delivery to any third party carrier.  

SECTION 10 – PRODUCTS, SERVICES, AND PRICES AVAILABLE ON THE WEBSITE

Products, services, and prices are generally posted on the website. TMD SMART MEDIA reserves the right, without notice, to discontinue products or services or modify specifications and prices on products and services without incurring any obligation to you. Except as otherwise expressly provided for in these Terms, any price changes to your subscription or purchase of product(s) or services will take effect following email notice to you.

Price changes are effective on the first day of the month after the price change is posted. By accessing, using, subscribing or placing an order over the Website, you authorize TMD SMART MEDIA to charge your account in the amount indicated for the value of the services you select, including any future price changes. If you request a lower amount of leads, the downgrade (and corresponding price reduction) will become effective on the first day of the month following your requested downgrade. By your continued use of TMD SMART MEDIA services, and unless you terminate your subscription as provided herein, you agree that TMD SMART MEDIA may charge your credit card monthly for the products and services you have selected, and you consent to any price changes for such services after e-mail notice has been provided to you.

TMD SMART MEDIA takes reasonable steps in an effort to ensure that the prices set forth on the Website are correct, and to accurately describe and display the items available on the Website. If the correct price of our product is higher than its stated price, we will, at our discretion, either contact you for instructions or cancel your order and notify you of such cancellation. 

When ordering products or services, please note that TMD SMART MEDIA does not warrant that product or service descriptions are accurate, complete, current, or error-free, or that packaging will match the actual product that you receive. All sales are deemed final except as provided in Section 6 of these Terms. TMD SMART MEDIA’s descriptions of, or references to, products or services not owned by TMD SMART MEDIA are not intended to imply endorsement of that product or service, or constitute a warranty by TMD SMART MEDIA.

SECTION 11 – DISCLAIMER – YOUR BUSINESS’ INDIVIDUAL RESULTS WILL VARY

Every business is different, employing different strategic approaches and organizational structures, and offering different products and services. Therefore, individual results will vary from client to client. YOUR BUSINESS’ INDIVIDUAL RESULTS WILL VARY DEPENDING UPON A VARIETY OF FACTORS UNIQUE TO YOUR BUSINESS, INCLUDING BUT NOT LIMITED TO YOUR BUSINESS MODEL, AND PRODUCT AND SERVICE OFFERINGS.  

SECTION 12 – YOUR RESPONSIBILITIES IN RUNNING YOUR BUSINESS

You agree that you and your business will only use TMD SMART MEDIA’s products and services for lawful purposes and that you shall not use such products or services, whether alone or in connection with other software, hardware, or services, for any unlawful or harmful purpose. You are solely and exclusively responsible for complying with any and all applicable laws and regulations in running your business, including, but not limited to, all laws governing advertising and marketing claims, subscriptions, refunds, premium offers, tax laws, and all additional laws applicable to your business. TTMD SMART MEDIA shall have no liability for your violation of any laws. You are solely and exclusively responsible for collecting and reporting any and all sales and use tax, and any other taxes, which may apply to sales of products or services by your business including, but not limited to, taxes which may apply to voluntary donations provided by your customers (as described in Section 13 below). TMD SMART MEDIA shall not be responsible to collect or report any taxes which may apply to your business or sales of products or services by your business. You agree to indemnify TMD SMART MEDIA as set out in Section 20 below in the event that you and/or your business violates any law and a claim is threatened or asserted against TMD SMART MEDIA as a result. 

SECTION 14 – COMMISSIONS PROGRAM AND INDEPENDENT TMD DIGITAL MARKETING AFFILIATE PROGRAM

TMD SMART MEDIA does not employ affiliates or franchisees of the company.

SECTION 15 – TESTIMONIALS, REVIEWS, AND PICTURES/VIDEOS

TMD SMART MEDIA is pleased to hear from users and customers and welcomes your comments regarding our services and products. TMD SMART MEDIA may use testimonials and/or product reviews in whole or in part together with the name, city, and state of the person submitting it. Testimonials may be used for any form of activity relating to TMD SMART MEDIA’s services or products, in printed and online media, as TMD SMART MEDIA determines in its sole and exclusive discretion. Testimonials represent the unique experience of the participants and customers submitting the testimonial, and do not necessarily reflect the experience that you and your business may have using our services or products. As set forth above in Section 11, your business’ results will vary depending upon a variety of factors unique to your business and market forces beyond TMD SMART MEDIA’s control. Note that testimonials, photographs, and other information that you provide to us will be treated as non-confidential and nonproprietary, and, by providing them, you grant TMD SMART MEDIA a royalty-free, worldwide, perpetual, non-exclusive and irrevocable license to use them. 

Additionally, TMD SMART MEDIA reserves the right to correct grammatical and typing errors, to shorten testimonials prior to publication or use, and to review all testimonials prior to publication or use. TMD SMART MEDIA shall be under no obligation to use any, or any part of, any testimonial or product review submitted.  

SECTION 16 – COMPLIANCE WITH THE LAWS, INCLUDING COMMITMENT AGAINST HARASSMENT AND INTERFERENCE WITH OTHERS

As a TMD SMART MEDIA user and/or Affiliate, you must comply with all laws, both U.S., U.K. and foreign, including, but not limited to, laws prohibiting deceptive and misleading advertising and marketing, e-mail marketing laws (including the federal CAN-SPAM Act (15 U.S.C. § 7701)), telemarketing laws (including the federal Telephone Consumer Protection Act (47 U.S.C. § 227) and the Federal Trade Commission’s Telemarketing Sales Rule (16 C.F.R. § 310)), laws governing testimonials (including the Federal Trade Commission’s Revised Endorsements and Testimonials Guides (16 CFR Part 255)), and/or any similar laws, laws relating to intellectual property, privacy, security, terrorism, corruption, child protection, or import/export laws. You are solely responsible for ensuring their compliance with all applicable laws, rules, regulations, and court orders of any kind of any jurisdiction applicable to you and your business, and any recipient to whom you send digital messages using our products or services. You have the responsibility to be aware of, understand, and comply with all applicable laws and ensure that you and all users of your account comply with such applicable laws at all times. 

COMMITMENT AGAINST HARASSMENT AND INTERFERENCE WITH OTHERS. You must not use our services, whether alone, or in connection with other software or hardware, to: (i) store, distribute, or transmit any malware or other material that you know, or have reasonable grounds to believe, is or may be tortious, libelous, offensive, infringing, harassing, harmful, disruptive, or abusive; or (ii) commit, promote, aid, or abet any behavior, which you know, or have reasonable grounds to believe, is or may be tortious, libelous, offensive, infringing, harassing, harmful, disruptive, or abusive. Non-limiting examples may include e-mails or other digital messages that promote 

SECTION 17 – DISCLAIMERS OF OTHER WARRANTIES

EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW:  

THE WEBSITE AND ALL CONTENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL, REPRESENTATIONS AND WARRANTIES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, AND/OR COMPLETENESS OF ANY INFORMATION ON THIS WEBSITE. WE DO NOT REPRESENT OR WARRANT, AND EXPRESSLY DISCLAIM THAT: (A) THE USE OF THE WEBSITE OR ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE WEBSITE, SOFTWARE, OR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, SOFTWARE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE WEBSITE WILL BE CORRECTED, OR (F) THE WEBSITE OR THE SERVER(S) THAT MAKE THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

SECTION 18 – LIMITATIONS OF LIABILITIES

EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, IN NO EVENT SHALL TMD SMART MEDIA OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, TELECOMMUNICATIONS PROVIDERS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRIVACY POLICY, THE SERVICES OR PRODUCTS, YOUR OR A THIRD PARTY’S USE OR ATTEMPTED USE OF THE WEBSITE OR ANY SOFTWARE, SERVICE, OR PRODUCT, REGARDLESS OF WHETHER TMD DIGITAL MARKETING HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, COSTS, OR CLAIMS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE. 

IN NO EVENT SHALL TMD SMART MEDIA’S LIABILITY TO YOU OR YOUR BUSINESS EXCEED THE AMOUNT OF THREE (3) TIMES THE PAYMENTS PAID BY YOU TO TMD DIGITAL MARKETING FOR THE MONTH PRECEDING THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST TMD SMART MEDIA OCCURRED OR TWO-THOUSAND DOLLARS ($2,000), WHICHEVER IS GREATER.

SECTION 19 – DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR AND YOUR BUSINESS’ RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AND YOUR BUSINESS AGREE THAT ANY CLAIM THAT YOU OR YOUR BUSINESS MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND YOUR BUSINESS ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU AND YOUR BUSINESS WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU AND YOUR BUSINESS MAY ONLY BRING A CLAIM IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS AS A COURT WOULD.

If you have a complaint, dispute, or controversy, you agree to first contact us at [email protected] to attempt to resolve the dispute or controversy informally. Any controversy or claim arising out of or related to the use of the Website, any product, service, or software, these Terms, the Privacy Policy, any affiliate agreement, or your relationship with us that cannot be resolved through such informal process or through negotiation within 120 days shall be resolved by binding, confidential arbitration administered by the International Court of Arbitration (“ICA”), and judgment on the award rendered may be entered in any court having jurisdiction thereof. We agree that any claim we may have against you or your business will also be subject to this arbitration provision, except as provided in Sections 19 and 20 below. The arbitration will be conducted by a single neutral arbitrator in the English language in England, unless we both agree to conduct the arbitration by telephone or written submissions. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the ICA. The arbitration will be conducted in accordance with the provisions of the ICA Commercial Arbitration Rules and Procedures, in effect at the time of submission of the demand for arbitration. The ICA Rules are available at www.iccbo.org. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms and Conditions of Use and Sale, the Privacy Policy, this arbitration provision, and any other terms incorporated by reference into these Terms and Conditions of Use and Sale. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or TMD SMART MEDIA.

Payment of all filing, administration, and arbitrator fees will be governed by the ICA’s Rules. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.

The arbitrator shall follow the substantive law of the UK without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the Arbitration Act 1996, as amended. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

You and TMD SMART MEDIA agree that disputes will only be arbitrated on an individual basis and shall not be consolidated, on a class wide, representative basis, or with any other arbitration(s) or other proceedings that involve any claim or controversy of any other party. You and TMD DIGITAL MARKETING expressly waive any right to pursue any class or other representative action against each other.

Failure or any delay in enforcing this arbitration provision in connection with any particular claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other claims except that all claims must be brought within 1 year after the claim arises (the 1 year period includes the 120-day informal resolution procedures described above).

This arbitration provision sets forth the terms and conditions of our agreement to final and binding confidential arbitration and is governed by and enforceable under the Arbitration Act 1996, as amended.  

This provision survives termination of your account or relationship with TMD SMART MEDIA, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.

YOU UNDERSTAND THAT YOU AND YOUR BUSINESS WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THIS ARBITRATION PROVISION.  

SECTION 20 – TMD SMART MEDIA’S ADDITIONAL REMEDIES

In order to prevent or limit irreparable injury to TMD SMART MEDIA, in the event of any breach or threatened breach by you of the provisions of this Agreement or any infringement or threatened infringement by you of the intellectual property of TMD SMART MEDIA or a third-party, TMD SMART MEDIA shall be entitled to seek a temporary restraining order and preliminary and permanent injunctions or other equitable relief from a court of competent jurisdiction located in England restraining such breach, threatened breach, infringement, or threatened infringement. Nothing in this Agreement shall be construed as prohibiting TMD SMART MEDIA from pursuing in court any other remedies available to it for such breach, threatened breach, infringement, or threatened infringement, including the recovery of monetary damages from you and your business. You and your business hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, the courts of England for all such claims, and forever waive any challenge to said courts’ exclusive jurisdiction or venue.  

SECTION 21 – INDEMNIFICATION

To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless TMD SMART MEDIA, its directors, officers, employees, shareholders, licensors, independent contractors, subcontractors, suppliers, affiliates, parent companies, subsidiaries, and agents from and against any and all claims, actions, loss, liabilities, damages, expenses, demands, and costs of any kind, including, but not limited to attorneys’ fees and costs of any litigation or other dispute resolution, arising out of, resulting from, or in any way connected with or related to (1) your use, misuse, or attempt to use the Website, software, products, or services, (2) information you submit or transmit through the Website, (3) your breach of these Terms, the documents they incorporate by reference, the Agreement, or the representations and warranties provided by you in this Agreement, or (4) your violation of any law or the rights of a third-party.

SECTION 22 – NOTICE AND TAKEDOWN PROCEDURES; COPYRIGHT ACT

If you believe that materials or content available on the Website infringes any copyright you own, you or your agent may send TMD SMART MEDIA a notice requesting that TMD SMART MEDIA remove the materials or content from the Website. If you believe that someone has wrongly filed a notice of copyright infringement against you, you may send TMD SMART MEDIA a counter-notice. 

SECTION 23 – THIRD-PARTY LINKS

The Website may contain links to other websites. TMD SMART MEDIA assumes no responsibility for the content or functionality of any non-TTMD SMART MEDIA website to which we provide a link. 

SECTION 24 – TERMINATION

This Agreement will take effect (or shall re-take effect) at the time you click “ACTIVATE MY ACCOUNT NOW,” “PAY NOW,” “ORDER NOW”, “SUBMIT”, “BUY NOW”, “PURCHASE”, “I ACCEPT”, “I AGREE” or similar links or buttons, otherwise submit information through the Website, respond to a request for information, begin installing, accessing, or using the Website, complete a purchase, select a method of payment, and/or enter in payment method information, whichever is earliest. If, in our sole discretion, you fail, or we suspect that you have failed, to comply with any term or provision of the Agreement or violated any law, whether in connection with your use of TMD SMART MEDIA or otherwise, we may terminate the Agreement or suspend your access to the Website at any time without notice to you. Sections 11, 13, 15 through 20, and 24 through 32 of this Agreement, as well as any representations, warranties, and other obligations made or undertaken by you, shall survive the termination of this Agreement and/or your account or relationship with TMD SMART MEDIA.

Upon termination, you remain responsible for any outstanding payments to TMD SMART MEDIA.

SECTION 25 – NO WAIVER

No failure or delay on the part of TMD SMART MEDIA in exercising any right, power or remedy under this Agreement may operate as a waiver, nor may any single or partial exercise of any such right, power, or remedy preclude any other or further exercise of such right, power, or remedy, or the exercise of any other rights, power, or remedy under this Agreement. A waiver of any right or obligation under this Agreement shall only be effective if in writing and signed by TMD SMART MEDIA.

SECTION 26 – GOVERNING LAW AND VENUE

This Agreement and any issue or dispute arising out of or otherwise related to this Agreement or your access to or use of the Website, our Privacy Policy, or any matter concerning TMD SMART MEDIA, including your purchase and use or attempted use of any service or product, shall be governed exclusively by the laws of the United Kingdom without regard to its conflicts of laws principles. To the extent that any claim or dispute is found by the arbitrator or (if proper) a court of competent jurisdiction to be excluded from the arbitration agreement in Section 18 above, the parties agree any such claim or dispute shall be exclusively brought in and decided by the courts located in England, and you hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, such courts, and forever waive any challenge to said courts’ exclusive jurisdiction or venue. All such claims must be brought on an individual and non-class, non-representative basis, and you forever waive any right to bring such claims on a class wide or representative basis.

SECTION 27 – FORCE MAJEURE

TMD SMART MEDIA will not be responsible to you for any delay, damage, or failure caused or occasioned by any act of nature or other causes beyond our reasonable control.  

SECTION 28 – ASSIGNMENT

TMD SMART MEDIA may assign its rights under this Agreement at any time, without notice to you. Your rights arising under this Agreement cannot be assigned without TMD SMART MEDIA’s (or its assigns’) express written consent.

SECTION 29 – ELECTRONIC SIGNATURE

All information communicated on the Website is considered an electronic communication. When you communicate with TMD SMART MEDIA through or on the Website or via other forms of electronic media, such as e-mail, you are communicating with the company electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.  

SECTION 30 – CHANGES TO THE AGREEMENT

You can review the most current version of the Terms at any time at https://www.TMDSMARTMEDIA.co.uk/terms. We reserve the right, at our sole discretion, to update, change or replace any part of the Agreement, including the Privacy Policy by posting updates and changes to our Website. It is your responsibility to check our Website periodically for changes. Your continued use of or access to our Website following the posting of any changes to the Agreement constitutes acceptance of those changes.  

SECTION 31 – YOUR ADDITIONAL REPRESENTATIONS AND WARRANTIES

You hereby further represent and warrant: (1) that you are at least eighteen (18) years of age, or the legal age of majority in your jurisdiction, whichever is greater; (2) that you own, operate, and/or have the right to bind the business for which you are using the Website; (3) have read this Agreement and thoroughly understand and agree to the terms contained in this Agreement; and (4) that you will not re-sell, re-distribute, or export any product or service that you order from the Website. You further represent that TMD SMART MEDIA has the right to rely upon all information provided to TMD SMART MEDIA by you, and TMD SMART MEDIA may contact you and your business by email, telephone, or postal mail for any purpose, including but not limited to (i) follow-up calls, (ii) satisfaction surveys, and (iii) inquiries about any orders you placed, or considered placing, on or through the Website.

You further represent and warrant that there are no prior or pending government investigations or inquiries of, or prosecutions against you, or any business related to you, by any governmental agency, or any industry regulatory authority, anywhere in the world, nor any prior or pending private lawsuits against you. If at any time during the life of the Agreement you, or any business related to You, becomes the subject of a government investigation, inquiry, or prosecution by any governmental agency, or any industry regulatory authority anywhere in the world, or the subject of any lawsuit, you will notify TMD SMART MEDIA of the same within 24 hours. TMD SMART MEDIA, at its sole discretion, may terminate the Agreement based on any investigation, proceeding, or lawsuit identified pursuant to this paragraph or otherwise discovered by TMD SMART MEDIA without incurring any obligation or liability to you.  

SECTION 32 – SEVERABILITY 

If any provision of this Agreement is found by the arbitrator or (if proper) a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected thereby and shall continue in full force and effect and such provision may be modified or severed from this Agreement to the extent necessary to make such provision enforceable and consistent with the remainder of the Agreement.

SECTION 33 – ENTIRE AGREEMENT

These Terms, the Agreement, and any policies or operating rules posted by us on the Website or in respect to the Website constitutes the entire agreement and understanding between you and your business and TMD SMART MEDIA and governs your access to and use of the Website and your ordering, purchasing, and use and/or attempted use of any service or product, and supersedes and replaces any prior or contemporaneous agreements, representations, communications, and proposals, whether oral or written, between you and TMD SMART MEDIA. We may also, in the future, offer new services and/or features through the Website. Such new features and/or services shall also be subject to these Terms, the Agreement, and any policies or operating rules posted by us on the Website. Any ambiguities in the interpretation of these Terms or the Agreement shall not be construed against the drafting party.

SECTION 34 – CONTACTING US

We encourage our customers to contact us with questions or comments about our products and services. Please feel free to do so by sending an e-mail to [email protected]

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