Welcome to www.smartcounseling.com, a website [and mobile application] (“collectively referenced herein as “Site”) owned and operated by Smart Counseling LLC. (“Company”). The Site is a platform that provides users of the Site with the opportunity to remotely and digitally converse with and consult with those licensed therapists who have executed independent contractor services with the Company and whose services are made available to users through the Site. By using the Site, you agree to follow and be bound by these terms of use (“Terms of Use”), and the accompanying Privacy Policy which are hereby incorporated into these Terms of Use.

In these Terms of Use, the words “you” and “your” refer to each Site subscriber, visitor or user, “we”, “us” and “our” refers to the Company and “Therapist ” refers to the licensed therapists who have executed independent contractor agreements with the Company and with whom a subscriber to the Site may consult through the Site.

We may revise these Terms of Use at any time without notice to you. It is your responsibility to review these Terms of Use periodically. If at any time you find these Terms of Use unacceptable or if you do not agree to these Terms of Use, please do not use this Site. If you have any questions about these Terms of Use, please contact us at support@smartcounseling.com.

YOU REPRESENT AND WARRANT THAT BY USING OR DOWNLOADING THE SITE YOU ARE LEGALLY ABLE TO ENTER INTO A CONTRACT AND THAT YOU WILL COMPLY WITH ALL SITELICABLE LAWS AND REGULATIONS.

The Site is a platform that provides users of the Site with the opportunity to remotely and digitally converse with and consult with those licensed therapists who have executed independent contractor services with the Company and whose services are made available to users through the Site. The Site also offers a portal through which a user can communicate with a licensed therapist and to obtain certain informational materials posted by a therapist and other professionals, and, intermittently, by the Company.(the “Purpose”).

Although the Site offers a platform for the Purpose, the Company is not an agent for any therapist, user or subscriber of the Site, nor is it a party to any transaction that may be negotiated between you and a therapist. In this respect, the Company does not offer therapy or counseling services directly to users of the Site, and the services offered by the Company do not include the provision of medical care, mental health services or other professional services

By using the Site, you confirm your understanding that services offered by Company are not to be construed in any way as medical services. IF YOU ARE THINKING ABOUT SUICIDE OR IF YOU ARE CONSIDERING TAKING ANY ACTIONS THAT MAY CAUSE HARM TO YOU OR TO OTHERS, OR IF YOU FEEL THAT YOU OR ANY PERSON MAY BE IN ANY DANGER WHATSOEVER, YOU MUST IMMEDIATELY CALL THE EMERGENCY SERVICE NUMBER IN YOUR LOCALITY TO NOTIFY THE RELEVANT AUTHORITIES AND SEEK IMMEDIATE HELP. YOU CANNOT OBTAIN MEDICAL OR OTHER ASSISTANCE FOR SUCH URGENT SITUATIONS THROUGH THIS SITE.

This Site is not intended for medical diagnosis, and all information provided by Therapists or on this Site is not intended to be used or relied on for diagnostic or treatment purposes. Any consultation with a Therapist through this Site cannot and does not replicate or replace the need for you to meet with a professional, face-to-face. You should confirm any medical or other information provided to you by a Therapist prior to relying on such information. You agree that Information, whether medical or otherwise, obtained from a Therapist through this Site is not and will not be deemed to be information made available by the Company, and will at all times remain the opinion, professional or otherwise, of the Therapist without being imputed to Provider.

Prior to entering into a consultation with a Therapist , you should confirm the state or states in which such Therapist is licensed and the location of their practice. If this information is different or inconsistent with your state of residence, it is your duty and responsibility to inform the Therapist of such disparity. In such circumstances, the Company will take reasonable efforts to match you with another Therapist who is licensed in your state of residence.

When you open an account to use or access certain portions of the Site, you must provide complete and accurate information as requested on the registration form. You will also be asked to provide a user name and password. If you choose to register, you agree to: (a) supply the information requested in the registration process, (b) ensure that all the information you supply to us is accurate, and (c) update your personal information. You are entirely responsible for the maintaining the confidentiality of your password. You may not use a third party’s account, user name or password at any time. You agree to notify the Company immediately of any unauthorized use of your account, user name or password. The Company shall not be liable for any losses you incur as a result of someone else’s use of your account or password, either with or without your knowledge. You may be held liable for any losses incurred by the Company our affiliates, officers, directors, employees, consultants, agents and representatives due to someone else’s use of your account or password.

In connection with the use of certain features of the Site, you may be asked to provide personal information in a questionnaire, application, form or similar document or service. This information will be protected pursuant to our Privacy Policy. In addition, you grant the Company a worldwide, royalty-free, nonexclusive, and fully sublicensable license to use, distribute, reproduce, modify, publish and translate this personal information solely for the purpose of enabling your use of the Sitelicable service so as to enable you to effect the Purpose through our Site. You may revoke this license and terminate the Company’s rights at any time by removing your personal information from the Sitelicable service.

Ownership. This Site is owned and operated by the Company. All right, title and interest in and to the software, data, and materials provided by the Company on this Site, including but not limited to information, documents, logos, graphics, sounds and images (the “Materials”) are owned or licensed by the Company. Except as may be expressly stated on the Site or in these Terms of Use, 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 to you under any of the Company’s intellectual property rights, whether by estoppel, implication or otherwise. The Company does not sell, license, lease or otherwise provide any of the Materials other than those specifically identified as being licensed herein. Any rights not expressly granted herein are reserved by the Company.

4.1 Limited License. [Subject to your payment of the applicable subscription fee referenced in Section 4.1, below,] the Company hereby grants you a limited license to download, use, view, copy and print the Materials found on the Site on any single, stand-alone mobile device or computer solely for your personal, informational, or internal business use provided that: (i) the Company’s copyright and trademark notice appear conspicuously on such copied Materials, (ii) the Materials are not used on any other Web site nor in a networked computer environment and (iii) the Materials are not modified except as is necessary for you to effect the Purpose through the use of our Site. This license terminates automatically without notice if you breach any of the terms or conditions of these Terms of Use. On any such termination, you agree to immediately destroy any downloaded or printed Materials. Any unauthorized use of any Materials contained on this Site may violate copyright laws, trademark laws, laws of privacy and publicity, communications regulations and statutes as well as other rights, laws, rules, regulations and statutes

4.2 Subscription Fee. Depending on whether you elect to consult a Therapist to whom you will have access through the Site, you may be required to pay an annual and or monthly subscription fee to assure your continued ability to access the Site. The amount of your subscription fee will be based on the information that you provide during your registration with respect to the type and level of service from the Therapist that you are requesting.

At various locations on the Site, the Company may permit users to post comments, and other content (the “User Content”). Contributions to, access to and use of the User Content is at your own risk and subject to the below terms and to all other terms and conditions of these Terms of Use.

5.1 Rights and Responsibilities of the Company. The Company respects the intellectual property of others, and we ask our users to do the same. The Company may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your User Content has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the Company’s Copyright Agent with the following information:

• a. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
• b. A description of the copyrighted work or other intellectual property that you claim has been infringed;
• c. A description of where the material that you claim is infringing is located on the site;
• d. Your address, telephone number, and email address;
• e. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• f. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

The Company’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:

By email: support@smartcounseling.com

If the Company’s technical staff finds that User Content, files or processes belonging to a user or subscriber poses a threat to the proper technical operation of the Site or to the security of the Site or of other members, the Company reserves the right to delete those files or to stop those processes. If the Company technical staff suspects a user name is being used by someone who is not authorized by the proper user, the Company may disable that user’s access to the Site in order to preserve system security.

The Company has the right, in our sole and absolute discretion, to (i) edit, redact or otherwise change any User Content, (ii) re-categorize any User Content to place it in a more appropriate Site location or (iii) pre-screen or delete any User Content that is determined to be inappropriate or otherwise in violation of these Terms of Use, including but not limited to User Content containing offensive language and advertisements.

The Company reserves the right to refuse service to anyone and to cancel user access at any time.

5.2 Rights and Responsibilities of Users of the Site or Other Posters of User Content. You are legally and ethically responsible for any User Content – writings, files, pictures or any other work – that you post or transmit using any Company service that allows interaction or dissemination of information. In posting User Content, you are responsible for honoring the rights of others, including intellectual-property rights (copyright, patent and trademark), the right to privacy and the right not to be libeled or slandered. For example, if you wish to post a copyrighted work as User Content, you are responsible for first obtaining the copyright holder’s permission.

Under the United States Copyright Act, you retain copyright on all works you create and post as User Content, unless you choose specifically to renounce it. Accordingly, by posting such User Content, you grant a license to the Company to use, reprint, distribute, modify, and create derivative works of the User Content, each of which modifications and derivative works will be owned by the Company. You also give permission to the Company to copy your User Content as part of the normal backup process. You have the right to remove any of your works from User Content at any time.

The use of your account or User Content for any illegal activity is a violation of these Terms of Use. You agree not to use the Site in any way that could damage, disable, or impair any Materials provided by the Company (or the network(s) connected to the Site), violate the privacy and security of other users, or interfere with any user’s use and enjoyment of any portion of the Site. You agree not to attempt to gain unauthorized access to any Materials offered on the Site, other accounts, computer systems or networks connected to the Site, through hacking, password mining or any other means. You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site.

5.3 Your Rights and Responsibilities as a User and Reader of User Content. You are not required to provide your real name if you are simply perusing our Site, although, as set forth in our Privacy Policy, you will be required to provide “Contact Information” and “Essential Information”, as defined in the Privacy Policy, if you register as a subscriber to our Site.

If you have a complaint about the behavior or posts of another user, it is your responsibility to attempt to resolve the conflict, typically by contacting that person directly, if possible. Normally, the Company staff will not take a role in mediating conflicts between you and other users.

Your access to the postings that other users have posted as User Content is restricted to your personal use only. If you want to distribute, modify or prepare derivative works from postings you find as User Content, it is your responsibility to obtain the necessary permission from the poster (and any other person with rights in such work).

5.4 Prohibited Actions. By using this Site, you agree not to post or provide any information or material that:

• In any way that violates any applicable federal, state, local or international law, rule, or regulation (including, without limitation, any laws regarding the transfer or export of  data, personally identifiable information or software to and from the United States or other countries);
• Is for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
• Transmits any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation;
• Impersonates or attempts to impersonate the Company, a Therapist, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing);
• Could disable, overburden, damage or impair the Site or interfere with any other party’s use of the Site, including their ability to engage in real time activities through the Site;
• Uses any robot, spider or other automatic device, process or means to access the Site for any purpose, including monitoring or copying any of the material on the Site;
• Introduces any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
• Attempts to gain unauthorized access to, interfere with, damage or disrupt any parts of the Site, the server on which the Site is stored or any server, computer or database connected to the Site; or
• Otherwise attempts to interfere with the proper working of the Site. By using this Site, you further represent and warrant the following NO WARRANTY

THE SITE AND ALL MATERIALS, DOCUMENTS OR FORMS PROVIDED ON OR THROUGH YOUR USE OF THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

THE COMPANY MAKES NO WARRANTY THAT: (A) THE SITE OR THE MATERIALS OR THE SERVICES PROVIDED THROUGH THE SITE WILL MEET YOUR SPECIFIC REQUIREMENTS; (B) THE SITE OR THE MATERIALS WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, OR ANY MATERIALS OFFERED THROUGH THE SITE, WILL BE ACCURATE, RELIABLE OR UP TO DATE; OR (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SITE OR FROM A THERAPIST OR IN RELIANCE ON THE MATERIALS WILL MEET YOUR EXPECTATIONS OR ARE SUITABLE FOR YOUR USE OR CIRCUMSTANCES.

THE COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR FOR THE LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE FROM THE SITE.

IN NO EVENT SHALL THE COMPANY, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, OR LICENSEES BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE (INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE) HOWEVER SUCH DAMAGE ARISES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THIS SITE OR MATERIALS AVAILABLE FROM THIS SITE OR CONSULTATIONS WITH A THERAPIST. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND THEREFORE, IN SUCH A SITUATION, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH INSTANCE THE MAXIMUM LIABILITY OF THE COMPANY TO YOU IS $10,000.00 OR THE LOWEST AMOUNT ALLOWABLE UNDER THE APPLICABLE LAWS.

You agree to defend, indemnify and hold harmless the Company, our officers, directors, shareholders, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with your access to or use of the Site, the Therapist, and the Materials.

Except as may be required in connection with your use of the Site for the Purpose, the Company does not want you to submit confidential or proprietary information to us through this Site that is not related to personal information that a Therapist needs to have in order to effect the Purpose. All comments, feedback, information or material submitted to the Company through or in association with this Site shall be considered non-confidential. By providing such submissions to the Site, you hereby grant to the Company a license to use, reprint, distribute, modify and create derivative works from such information (collectively “Derivatives”), all of which Derivatives will be owned by the Company. You acknowledge that you are responsible for the submissions that you provide, including their legality, reliability, appropriateness, originality and content.

When accessing or using the Site, you agree to obey the law and you agree to respect the intellectual property rights of others. Your use of the Site is at all times governed by and subject to the federal and state laws of the United States of America regarding patent, copyright, trademark, trade secret and other intellectual property rights collectively (“Intellectual Property Rights”). You agree not to upload, download, display, perform, transmit or otherwise distribute any information or content on the Site in violation of any third party’s Intellectual Property Rights.

If you believe that any Content on the Site is infringing your copyright under the United States Copyright Act, you may seek the removal of such content by providing notice to us in accordance with the Notice and Take Down provisions of the Digital Millennium Copyright Act at as described above in Section 5.1.

You may not access, download, use or export the Site or the Materials in violation of United States export laws or regulations or in violation of any other applicable laws or regulations. You agree to comply with all export laws and restrictions and regulations of any United States or foreign agency or authority and to assume sole responsibility for obtaining licenses to export or re-export as may be required. You acknowledge and agree that the Materials are subject to the United States Export Administration Laws and Regulations and agree that none of the Materials or any direct product therefrom is being accessed for the purposes of shipment, transferal or export directly or indirectly, to proscribed or embargoed countries or their nationals or used for any prohibited purpose.

12.1 Terms and Termination. This Agreement is effective until terminated. Either you or the Company may terminate this Agreement for any reason by providing the other with seventy-two hours’ notice by email at the email address that you provide upon your registration with the Site as a subscriber, or, if to the Company, at the following email address support@smartcounseling.com. The Company may terminate this Agreement immediately, and may immediately suspend your further access to the Site if you breach any of the terms of this Agreement. If such breach is not cured within twenty-four hours from the notice of termination of this Agreement, the Company may permanently discontinue your further access to the Site for any purpose. Within five (5) days after the date on which you receive notice of the termination of this Agreement, you shall return to Company or destroy, at Company’s option, all copies of the Materials that may be in your possession or control, including any and all copies made by you. Upon Company request, you will certify in a written document signed by you that all copies of the Materials have been returned to Company, or destroyed, and that no copies of the Materials are in your possession or. Sections 1 through 3 and 4 through 13 shall survive termination of this Agreement for any reason.

12.2 Arbitration of Disputes. This Agreement shall be governed by and construed in accordance with the law of the State of Texas without regard to its choice of law provisions. All disputes arising under this Agreement or its subject matter that cannot be settled by good faith negotiation shall be decided by arbitration under the rules of the American Arbitration Association. The decision of the arbitrator or arbitrators shall be final. The prevailing party in the arbitration shall be awarded such attorneys fees and costs as the arbitrator determines to be reasonable.

Either you or the Company may demand and/or file arbitration proceedings. Arbitration between you and the Company will be settled under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”). Arbitration will take place at a location to be agreed upon in Tarrant County, Texas; provided, however, that if the claim is for $10,000 or less, you may request that the arbitration to be conducted be based on documents submitted to the Arbitrator or through a non-appearance based telephonic hearing; or by an in-person hearing as established by the AAA Rules. Your arbitration fees and costs will be limited to the fees set forth in the AAA’s Consumer Rules with the remainder paid by the Company.

Any arbitration must be commenced by filing a demand for arbitration within one calendar year after the date the party asserting the claim first knows or reasonably should know of the basis of the claim. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law. Any Client, customer or user of this Site who intends to seek arbitration must first send a written notice of the dispute to the Company by certified mail or Overnight Express mail (signature required) to the address listed in these Terms of Use. In the event that Provider makes any future change to this arbitration provision (other than a change to the Provider address for service), you may reject any such change by sending written notice within thirty (30) days of the change and canceling your subscription to the Site within the same notice period.

12.3 Entire Agreement. This Agreement sets forth the entire understanding between You and Company with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, oral and written, as they regard the licensing of the Software. This Agreement may be amended only in a writing signed by both parties. No vendor, distributor, dealer, retailer, sales person or other person is authorized to modify this Agreement or to make any warranty, representation or promise which is different than, or in addition to, the representations or promises of this Agreement.

12.4 No Waiver, Severability. Independent Contractor No waiver of any right under this Agreement shall be effective unless in writing, signed by a duly authorized representative of the waiving party; failure to insist upon strict compliance with this Agreement shall not be deemed a waiver of any future right arising out of this Agreement.

The relationship between the Company and you under this Agreement is intended to be that of independent contractor. Nothing in this Agreement shall be construed to create any partnership, joint venture, and employer-employee or agency relationship of any kind.

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be fully severable, and this Agreement shall be construed and enforced as if the illegal, invalid or unenforceable provision had never been a part of this Agreement.

12.5 No Assignment. Neither party may assign or transfer this Agreement, nor shall any such attempted assignment or transfer be null and void. Notwithstanding the foregoing: (a) Company may assign this Agreement without consent to: (i) an affiliated company, or (ii) a party acquiring all or substantially all of the business of Company, and (b) You may assign this Agreement without consent to a party acquiring all or substantially all of your business.

Binding Agreement. BY DOWNLOADING OR USING THE SITE, YOU ACKNOWLEDGE THAT YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you have any questions concerning this Agreement, you may contact Company at support@smartcounseling.com.

Last Updated: August 26, 2018