Terms of Service Agreement

Last updated 1/02/2024.

Welcome to the Smart SWPPP website, an online service designed and offered by Smart SWPP LLC for our customers. This Agreement explains our obligations as a service provider and your obligations as a User of Smart SWPPP or our Services, as those terms are defined below. Capitalized or italicized terms used throughout this Agreement will have the meanings specified herein, including the defined terms contained in the “Definitions” section below.

IT IS IMPORTANT THAT YOU READ THIS AGREEMENT CAREFULLY.

This Agreement includes a binding mutual arbitration provision (“Arbitration Provision”) in Section J, which requires that disputes be resolved through individual arbitration.

If for any reason you are unable to meet all the conditions set forth in this Agreement or if you breach this Agreement, your permission to access or use our Services, any materials downloaded or printed by you or Smart SWPPP, immediately lapses.

A. Definitions

“Agreement” refers to this Terms of Use Agreement, any applicable Specific Additional Service Terms, and any posted rules, policies, or guidelines applicable to Smart SWPPP or the Services, all of which are incorporated by reference.

“Law(s)” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, provincial, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Client” means an individual (including a sole proprietor), corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Service” and “Services” mean our online SWPPP services and other related services, our Support, and any Additional Services we offer through Smart SWPPP from time to time.

“Site” means this website (www.smartswppp.com), all related webpages, and all related websites operated by applicable subsidiaries of Smart SWPPP LLC., but does not include any third-party websites which are linked to or may link from the Site whether or not such third-party websites are used in connection with the Services.

“Support” means any technical support and assistance we provide to Users.

“Smart SWPPP” means the Site and any other software or applications that are associated with the Site or Services.

“SWPPP” means Stormwater Pollution Prevention Plan.

“Parties” means Smart SWPPP LLC., their respective direct and indirect parents, subsidiaries, affiliates, partners, service providers, suppliers, and contractors as well as the predecessors, successors, assigns, officers, directors, agents, or employees.

“You” and “your” means any Person who visits the Site or uses Smart SWPPP or the Services, whether such Person is a Business Owner, Authorized User, or other User.

B. General

1. Changes to Smart SWPPP

We may, without notice or liability, add, discontinue, or revise any aspect, mode or design of Smart SWPPP or the Services, such as the scope of the Services, time of service, or to the software/hardware required for access to Smart SWPPP or the Services. We may also limit the geographic locations or jurisdictions where certain Services may be available.

2. Limited Remedies

Should there be an error, omission, defect, deficiency, or delay causing downtime by Smart SWPPP, Smart SWPPP will work in a timely fashion to remedy any issues. You acknowledge and agree that, to the fullest extent permitted by applicable Law and except as otherwise expressly set out in this Agreement, your only remedy for any error, omission, defect, deficiency, delay or other failure of Smart SWPPP or the Services whatsoever is to discontinue using Smart SWPPP and the Services.

3. Information You Provide

We accept no responsibility for the accuracy of any information, data, documents, or plan materials, provided to Smart SWPPP by other third parties. The use of any third parties materials in products developed by Smart SWPPP does not constitute our endorsement or warranty as to the compliance of such information or materials with applicable Law, or to the accuracy, timeliness, materiality, completeness, or reliability of such information or materials.

4. Compliance with Privacy & Data Security Laws

You represent and warrant that you have obtained all required consents and you comply with all applicable Laws, including, without limitation, all privacy Laws, in connection with any use and disclosure of information relating to your use of Wave and the Services.

While using the Services, we may also collect information from you about someone else. If you provide us with personal information about someone else, you are obligated to ensure that you are authorized to disclose that information to us, and that we, without further action, may collect, use, and disclose that information for the purposes described in our Privacy Policy. For example, you are responsible for obtaining any necessary consents needed to allow us to transfer any personal information sent to Smart SWPPP or used in connection with the Services to the United States.

C. Conditions of Usage

Smart SWPPP reserves the right to deny services to any person regardless of site geographic location and project parameters. Projects that possess the following characteristics are denied service:

• i. Any projects disturbing over fifty acres.
• ii. Any projects with limits of construction within one mile of any “Waters of the United States”.
• iii. Any projects with wetlands located adjacent to or within the limits of constructions.
• iv. Any projects with or suspected contaminated soils.
• v. Any projects with insufficient construction plans to design a SWPPP or any other related service.

D. Payments

All erosion and sediment control designs and other site plan work require a 50% retainer prior to start of work. Upon completion, Smart SWPPP will charge the remainder of the total cost. Disputes of any billings must be put in writing within ten (10) days of receipt of the invoice with non-disputed portions of the billing being paid as aforesaid.

Should special coverage or additional liability insurance be required, Smart SWPPP shall advise Client of same and the parties shall agree on how such insurance coverage will be handled.

E. Return and Refund Policy

If, for any reason, you are not completely satisfied with a purchase we invite you to review our policy on refunds and returns.

Your Order Cancellation Rights

You are entitled to cancel your order within the first 24 hours without giving any reason for doing so.

In order to exercise Your right of cancellation, you must inform us of your decision by means of a clear statement. You can inform us of your decision by:

By email: [email protected]

We will reimburse you no later than 14 days from the day. We will use the same means of payment as you used for the order, and you will not incur any fees for such reimbursement.

100 Percent Satisfaction Guarantee

We stand behind our products and services with a 100 percent satisfaction guarantee. If, for any reason, you are not completely satisfied with a purchase, we will, depending on your method of checkout, refund any prepaid amount and cancel any balance due.

F. Copyrights, Trademarks and Intellectual Property.

Smart SWPPP LLC and its licensors and suppliers own both the proprietary rights as well as the intellectual property rights to all URLs, materials, products, web content, web page designs, web page layouts, images, text, tools, utilities, and software that make up Smart SWPPP and the Services. The technical procedures, processes, concepts, and methods of operation that are inherent within Smart SWPPP constitute are proprietary and confidential to Smart SWPPP. The usage of Smart SWPPP or our Services does not constitute a sale or transfer of any intellectual property rights to any Users. Without any prejudice to the foregoing, your data, information, and other content you provide to us or input using Smart SWPPP and the Services remains exclusively yours. Any Business Owner information or data entered using Smart SWPPP or otherwise provided for accessing Smart SWPPP on behalf of a Business Owner remains the property of the Business Owner.

Materials on and relating to Smart SWPPP, including products sold and downloaded from Smart SWPPP, are protected by copyright, trademark, and other intellectual property Laws. Smart SWPPP reserves all rights in and to such materials. You will not make, sell, reproduce, redistribute, transfer to any other server, modify, reverse engineer, or copy the Services or any of the materials or any part of Smart SWPPP or any content therefrom without Smart SWPPP express written consent. You will also take all reasonable steps to forestall any unauthorized use, copying or transfer of materials on or relating to Smart SWPPP.

G. Termination

1. Your Right to Terminate

You may terminate your account, this Agreement and your use of Smart SWPPP by following the “Close your Smart SWPPP Account” instructions found on your account page. Upon such termination, you must immediately cease using Smart SWPPP. We may at our option immediately block your access to Smart SWPPP. Your termination of the Service will automatically result in the termination of this Agreement. The Arbitration Provision will survive the termination of this Agreement.

2. Our Right to Terminate

Smart SWPPP may terminate your order, this Agreement and your use of Smart SWPPP and the Services at any time and for any reason, with or without notice, if you breach this Agreement. If you are an entity, Smart SWPPP may also terminate your order, this Agreement and your use of Smart SWPPP, if you:

• i. Failure to provide the minimum information required to develop plans or permits;
• ii. Your project exceeds our design parameters;
• iii. Your project is located outside of our service area;
• iv. Your project is located in a sensitive area;
• v. False, misleading, inaccurate information is provided;
• vi. Become insolvent or admit your inability to pay your debts generally as they become due;
• vii. Become subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, which is not fully stayed within ten (10) business days or is not dismissed or vacated within thirty (30) days after filing;
• viii. Are dissolved or liquidated or take any corporate action for such purpose

3. Termination

If your account is terminated for any reason, you agree:

• – To continue to be bound by this Agreement, including the Arbitration Provision;
• – To immediately stop using the Service;
• – That we reserve the right (but have no obligation other than as described in our Privacy Policy) to delete all
• – of your information and data stored on our servers; and
• – That Smart SWPPP will not be liable to you or any third party for termination of access to the Service,
• – deletion of your information or data, or export of your information or data.

4. Effect of Termination

We will not be liable to you for compensation, reimbursement, or damages in connection with any termination or suspension of the Service. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement. The Arbitration Provision will survive the termination of this Agreement.

H. Electronic Communications

3. How to Withdraw Your Consent

At any time, You may withdraw your consent to receive electronic Communications, as outlined in our Privacy Policy, by contacting our Customer Support Team. If you choose to withdraw your consent to receive electronic Communications, Smart SWPPP may deny your registration for an account, restrict, or close your account, or charge you additional fees for paper copies.

I. Miscellaneous

1. Insurance and Indemnity

2. Governing Law

If you reside in the United States, this Agreement shall in all respects be governed by and interpreted, construed, and enforced in accordance with the Laws of the state in which you accepted this Agreement, except as otherwise provided in the Arbitration Provision.

3. Entire Agreement

Except as otherwise provided in the Arbitration Provision, this Agreement, including any applicable Specific Additional Service Terms, is the entire and exclusive agreement between parties with respect to Smart SWPPP, and it supersedes all previous communications, representations, or agreements, either oral or written, between you and us.

4. Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Smart SWPPP without restriction or consent.

5. Amendment of Agreement

Except as otherwise provided in the Arbitration Provision, we reserve the right to modify or add to this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Service with notice that we, in our sole discretion, determine to be reasonable in the circumstances, including but not limited to, notice on our website or any other website maintained or owned by us and identified to you. Any use of the Service after our publication of any such changes constitutes your acceptance of the then-current version of this Agreement. You may not modify or amend this Agreement unless we agree to such modification or amendment in a written instrument signed by a duly authorized representative of Smart SWPPP. For the purposes of this section, a written instrument shall expressly exclude electronic communications such as email and electronic notices.

6. Survival

Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement or that expressly or by its nature extends beyond the termination of the Service shall survive and remain in effect in accordance with its terms upon the termination of this Agreement. The Arbitration Provision will survive the termination of this Agreement.

7. Severability

Except as otherwise provided in the Arbitration Provision, all provisions of this Agreement, notwithstanding the manner in which they have been grouped together or linked, are severable from each other. If any of these terms should be determined to be unenforceable, the remaining terms of this Agreement will survive, remain in full force and effect, and will continue to be binding and enforceable.

8. Force Majeure

We will not be liable for any delay or failure in our performance of the Agreement by reason of the occurrence of an unforeseen event beyond our reasonable control, including but not limited to, acts of God, natural disasters, pandemics, power failures, server failures, third-party service provider failures or service interruptions, embargo, labor disputes, lockouts and strikes, riots, war, floods, insurrections, legislative changes, and governmental actions.

J. Arbitration (“Arbitration Provision”)

THIS SECTION AFFECTS YOUR RIGHTS. PLEASE READ IT CAREFULLY BEFORE AGREEING TO THESE TERMS.

1. Generally. You and the Covered Parties (defined below) agree that any and all disputes and claims between you and the Covered Parties will be resolved by binding individual arbitration. All issues are for the arbitrator to decide, except for those issues relating to the arbitrability of disputes and the validity, enforceability, and scope of this arbitration provision, including the interpretation of paragraph 7 below, must be determined by a court and not an arbitrator. For purposes of this Arbitration Provision, references to “you” include your direct and indirect parents, subsidiaries, and affiliates as well as the predecessors, successors, assigns, officers, directors, agents or employees of any of them; references to “Covered Parties” include Smart SWPPP, their respective direct and indirect parents, subsidiaries, and affiliates as well as the predecessors, successors, assigns, officers, directors, agents or employees of any of them. This agreement to arbitrate includes, but is not limited to, all claims arising out of or relating to any aspect of services provided by Smart SWPPP, whether based in equity, contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise prior to, during, or after the termination of any service.

YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND THE COVERED PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS, REPRESENTATIVE, JOINT OR CONSOLIDATED ACTION IN COURT OR IN ARBITRATION.

2. Exceptions. You and the Covered Parties agree that nothing in this Arbitration Provision will be deemed to waive, preclude, or otherwise limit your or the Covered Parties’ right to (i) elect that an individual claim be decided in small claims court as long as it is brought and maintained as an individualized claim, or (ii) bring issues to the attention of federal, state, provincial, or local agencies.

3. Pre-Arbitration Notice of Dispute. A party who intends to seek arbitration must first mail a written Notice of Dispute (“Notice”) to the other party. The Notice to the Covered Parties should be addressed to:

‍

Smart SWPPP LLC. Attention: Legal Department – Notice of Dispute 3413 Hunter Road, Ste. 245D, San Marcos, TX, 78666

The Notice must be on an individual basis and provide at least the following information:

(a) The claimant’s name, telephone number, and e-mail address; (b) The nature or basis of the claim or dispute; and (c) The specific relief sought. ‍

If the dispute is not resolved within sixty (60) days after the Notice is received, then you or the Covered Parties may file an arbitration. The existence or substance of any settlement discussions shall not be disclosed.

4. Arbitration Rules. Any arbitration between you and the Covered Parties will be governed by the Consumer Arbitration Rules of the American Arbitration Association (“AAA”), or if the AAA determines that you are not a consumer, the AAA’s Commercial Arbitration Rules, as modified by this Arbitration Provision or any other instructions that the parties may agree upon at the time (collectively, the “AAA Rules”), and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. If AAA is unavailable or unwilling to administer the arbitration consistent with this Arbitration Provision, the parties shall agree to, or the court shall select, another arbitration provider. The arbitrator will be either a retired judge or an attorney specifically licensed to practice law in the state of your residence and selected by the parties from the arbitration provider’s national roster of arbitrators. The arbitrator will be selected using the following procedure:

(1) The arbitrator provider will send the parties a list of five (5) candidates meeting this criteria; (2) If the parties cannot agree on an arbitrator from the list, each party shall return its list to the arbitration provider within ten (10) days, striking up to two (2) candidates, and ranking the remaining candidates in order of preference; (3) The arbitration provider shall appoint as arbitrator the candidate with the highest aggregate ranking; and

(4) If for any reason the appointment cannot be made according to this procedure, the arbitration provider will provide the parties a new list of five candidates meeting the above criteria until an appointment can be made.

‍

5. Arbitration Costs. Payment of all filing, administrative, arbitrator, and hearing fees will be governed by the applicable AAA rules.

6. Hearing. Any arbitration hearings will take place in the county of your billing address.

7. No Class or Representative Claims. All arbitrations will proceed on an individual basis and may not proceed in any manner as a class action arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstance unless all parties consent in writing.

The arbitrator is empowered to resolve the dispute with the same remedies and defenses available in court, but the arbitrator’s rulings or any relief granted must be individualized to you and will not apply to or affect any other person or company. If a court decides that applicable Law precludes enforcement of any of this paragraph’s limitations as to a particular claim or any particular request for a remedy for a claim (such as a request for public injunctive relief), then only that particular claim or only that particular request for a remedy (and only that particular claim or particular request for a remedy) must remain in court and be severed from any arbitration.

8. Other Terms and Information. This Arbitration Provision will be governed by, and interpreted, construed, and enforced in accordance with, the Federal Arbitration Act and other applicable federal Laws. Except as set forth above in paragraph 7, if any portion of this Arbitration Provision is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Provision. This Arbitration Provision supersedes any prior arbitration agreement between you and the Covered Parties. No arbitration award or decision will have any preclusive effect as to any issues or claims in any dispute, arbitration, or court proceeding where any party was not a named party in the arbitration, unless and except as required by applicable Law.

Smart SWPPP LLC. Attention: Legal Department – Notice of Dispute 3413 Hunter Road, Ste. 245D, San Marcos, TX, 78666

The arbitration will be conducted in accordance with the current rules relating to commercial arbitration in the province in which you reside. Additionally, you waive any right you may have to start or participate in any class action against the Covered Parties, and you agree to opt out of any class proceeding against the Covered Parties.

If you have any questions about our Terms of Service Policy, please contact us:

• By email: [email protected]

SMART SWPPP, LLC. ATTN: Webmaster 3413 Hunter Road, Ste D245 San Marcos, TX 78666

We value your opinions and welcome your feedback. If you have any questions regarding this Policy, please email us at [email protected].