Terms of Service
Last Updated: 19 October 2018
These Terms of Service (“Terms”) apply to your access to and use of this website (“Site”) and our Service (as defined below). By clicking “Sign Up” or otherwise using or accessing our Site or Service, you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver, do not use our Site or Service.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Service or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued use of our Service after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Service.
In addition to the capitalized terms defined within these Terms, the following capitalized terms will have the following meanings:
“Aggregated Information” means aggregated, anonymous data and statistical information about the use of this Site and/or our Service.
“SmileBack”, “our”, “us”, and “we” means SmileBack, LLC.
“Customer”, “user”, “you” and “your” means any person who visits or uses this Site, registers to use or uses the Service or submits information through this Site.
“Customer Data” means all data that is provided through this Site for hosting, analytics, report building and/or other data processing Services, including Personal Information.
“DPA” means the data processing agreement of SmileBack available at https://www.smileback.com/dpa as amended from time to time.
“Personal Information” means all personally identifiable information provided through this Site for purposes of using this Site or the Service, including, without limitation, your name, company’s name, contact information, username, password, other log-in information and credit card information.
“Service” means the service or services, as applicable, provided through this Site, including, without limitation, all web-based analytics, web-based dashboards, report building and other data processing services, as well as all additional services, if any, provided through this Site.
“Site” means this website, the Software Agent (defined below) and all of our current and future intellectual property rights and proprietary technology relating to this Site, including, without limitation, all copyrights, patents, trademarks and software.
3. Acceptable Use Policy
Access to and use of the Site and Service is governed by our Acceptable Use Policy. Failure to comply with our Acceptable Use Policy may result in, among other actions, suspension or termination of your right to access and use the Site and Service. Our Acceptable Use Policy is hereby incorporated into and made a part of these Terms by reference.
4. Eligibility, Usernames and passwords
By accessing or using the Site and Service, you represent and warrant that you are at least 18 years old.
In order to use the Service, you must register for an account on the Site with a username and password. If you are an enterprise customer, you can invite and enable your employees or agents to create an account and access and use the Service on your behalf. Each account may only be used by one person. A single account shared by multiple people is not permitted. You agree to and will ensure that each of your agents that is invited to register for an account will (a) provide accurate, truthful, current and complete information when creating an account; (b) maintain and promptly update your account information; (c) maintain the security of your account by not sharing your password with others and restricting access to your account and your computer or mobile device; (d) promptly notify SmileBack if you discover or otherwise suspect any security breaches related to the Site, Service or your account; and (e) take responsibility for all activities that occur under your account and accept all risks of unauthorized access. YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY, MAINTENANCE, AND PROPER USE OF YOUR USERNAME, PASSWORD AND ACCOUNT.
SmileBack may prohibit access to and use of the Services at any time for any reason, including upon request from Customer. SmileBack may, in our sole discretion and at any time, decide to change your username or password upon notice to you.
If you discover at any time that you have been granted access to any information or documents contained on this Site and/or the Service that you are not authorized to access or view, you shall (x) immediately cease any access to such information; (y) take reasonable steps to prevent the disclosure of any such unauthorized information; and (z) immediately inform SmileBack of such access.
5. Access and Use of the Site and Service
a. Your Rights
Subject to Customer’s continued compliance with these Terms, SmileBack hereby grants to Customer a limited, nonexclusive, nontransferable, nonsublicensable, revocable right during the term to access and use the Site and Service.
You are only entitled to use this Site and the Service for lawful purposes and as expressly permitted by these Terms. By using or accessing this Site, registering to use or using the Service, or submitting information through this Site or the Service, you represent to SmileBack that you (i) are authorized to act on behalf of the legal entity contracting with SmileBack to agree to these Terms; (ii) agree to comply with all applicable rules, regulations, and laws regarding online conduct and transmission of information; (iii) agree to be bound by these Terms; and (iv) will comply with our Acceptable Use Policy and your obligations under the DPA. To determine your compliance with these Terms, we reserve the right, without obligation, to monitor your use of this Site and/or the Service.
b. Restrictions; Limitations
The rights granted under this Section do not include or authorize: (i) modifying, disassembling, decompiling, reverse engineering or otherwise making any derivative use of the Site, Service or any products or using or accessing the Site or Service to build a competitive product or service; (ii) using any data mining, robots or similar data gathering or extraction methods except as provided by the Site or Service; (iii) downloading (other than page caching) of any portion of the Site or Service or any information contained on Site or Service; (iv) performing or disclosing any benchmarking or performance testing of the Site or Service; or (v) using any of the Services other than for its intended use. The rights granted under this Section 5 will immediately and automatically terminate if Customer does not comply with any material term or condition of these Terms.
6. Software Agent
Our Service may require you to download a software agent (“Software Agent”) so you can provide Customer Data and Personal Information through this Site for use with the Service. Subject to Customer’s continued compliance with these Terms, SmileBack hereby grants you a limited, nonexclusive, nontransferable, revocable license to use the Software Agent solely to provide Customer Data and Personal Information through this Site for use of the Service. Our Service may update the Software Agent on your device automatically when a new version is available, and you hereby authorize such updates. Excessive use of the Software Agent (determined at the sole discretion of SmileBack) to access this Site or use the Service or for any other reason may result in a suspension or termination of your use of this Site and/or the Service.
7. Proprietary Right
As between you and SmileBack, SmileBack owns all right, title and interest in and to this Site and the Service. Except as otherwise specified in these Terms, Customer does not obtain any rights to the Site or Services, including any related intellectual property rights. SmileBack reserves all rights not expressly granted to you in these Terms.
Your use of this Site and/or the Service may be interrupted from time to time for any or no reason, including, without limitation, the malfunction of equipment; periodic updating, maintenance or repair of this Site and/or the Service or; other actions that we may take in our sole discretion and from time to time. We reserve the right to modify, suspend, or discontinue the availability of this Site and/or the Service, or any portion or feature of either, at any time and in our sole discretion, without prior notice. You, and not SmileBack, are solely responsible for maintaining, protecting, backing-up and providing redundant access to your Customer Data and Personal Information.
9. Jurisdictional restrictions
By accessing or using the Site or Service, you consent to the processing, transfer and storage of Customer Data in and to the United States and other countries, where you may not have the same rights and protections as you do under local law. We reserve the right, at any time and in our sole discretion, to limit the availability and/or use of this Site and/or the Service to any person, geographic area, or jurisdiction. Subject to the provisions of the DPA, you shall, at all times, comply with all applicable laws and regulations of the United States and all other applicable governmental entities governing, restricting or otherwise pertaining to the use, transmission, display, exporting or importing of data, products, services and/or technical information.
a. SmileBack Subscriptions
Our different subscription plans and pricing information related to access and use of the Services (each, a “Subscription”) on an annual or other periodic basis can be found on our pricing page.
b. Continuous Subscriptions
WHEN CUSTOMER REGISTERS FOR A SUBSCRIPTION, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT (A) SMILEBACK (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE CUSTOMER EVERY MONTH FROM THE DATE OF THE ORIGINAL PURCHASE OR OTHER PERIODIC BASIS (AS SELECTED BY CUSTOMER VIA THE SERVICES) FOR CUSTOMER’S SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS CUSTOMER’S SUBSCRIPTION CONTINUES, AND (B) CUSTOMER’S SUBSCRIPTION IS CONTINUOUS UNTIL CUSTOMER CANCELS IT OR SMILEBACK SUSPENDS OR STOPS PROVIDING ACCESS TO THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT.
You may cancel your Subscription at any time by logging into your account on the Site and following the instructions to cancel. Your cancellation is effective at the end of the current Subscription term (billing period). Once you cancel your account and Subscription, the Customer Data you have uploaded to the Site or Service will only be available or accessible for a period of up to 30 days. You have the right during this 30 day period to request us to return (or make available for download) or delete your Customer Data. After expiry of this 30 day period we shall delete your Customer Data in any event, subject to and in accordance with the provisions of the DPA. You will remain responsible for all charges (including applicable taxes and other charged) incurred with respect to fees processed prior to the cancellation of your Subscription. We do not provide refunds if you decide to stop using the Service during your current Subscription term.
d. Free or Promotional Trials
From time to time, to the extent legally permitted, SmileBack may offer free or reduced rate promotional trials of certain Subscriptions for specified periods of time without payment or for a reduced promotional price. If SmileBack offers Customer a free or promotional trial, the specific terms of the free or promotional trial will be provided in the marketing materials describing the particular trial, during the online registration process when the code for the trial is entered on the Site.
ONCE THE FREE OR PROMOTIONAL TRIAL ENDS, CUSTOMER AUTHORIZES SMILEBACK (OR OUR THIRD PARTY PAYMENT PROCESSOR) TO BEGIN CHARGING CUSTOMER’S DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR CUSTOMER’S SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS THE SUBSCRIPTION CONTINUES, UNLESS CUSTOMER CANCELS THE SUBSCRIPTION PRIOR TO THE END OF THE FREE OR PROMOTIONAL TRIAL OR OTHERWISE CANCELS THE SUBSCRIPTION IN ACCORDANCE WITH THIS SECTION. INSTRUCTIONS FOR CANCELING CUSTOMER’S SUBSCRIPTION ARE DESCRIBED IN SECTIONS 9(b) AND 9(c) ABOVE.
e. Pricing and Availability
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. SmileBack reserves the right to adjust prices as SmileBack may determine in its sole discretion, at any time and without notice; provided, however, that if SmileBack changes the amounts or other charges associated with Customer’s Subscription, SmileBack will use reasonable efforts to provide advance notice of such changes in accordance with this Section. SmileBack will not, however, be required to notify Customer of changes in any applicable taxes. The Service, Site and Subscriptions are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order, or to discontinue offering certain Services or Subscriptions without prior notice, even if Customer has already placed an order.
f. Payment and Billing Information
By providing a payment method that SmileBack accepts, Customer represents and warrants that Customer is authorized to use the designated payment method and that Customer permits SmileBack (or our third party payment processor) to charge Customer’s payment method for the total amount of Customer’s Subscription or other purchase (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, Customer’s order or Subscription may be suspended or cancelled. Customer must resolve any problem SmileBack encounters in order to proceed with Customer’s order. In the event Customer wants to change or update payment information associated with Customer’s account, Customer can do so by logging into the Services and editing the payment information. Customer acknowledges that the amount billed may vary due to promotional offers, changes to your Subscription or changes in applicable taxes or other charges, and Customer authorizes SmileBack (or our third party payment processor) to charge Customer’s payment method for the corresponding amount.
Customer is responsible for any sales, duty or other governmental taxes or fees due with respect to Customer’s purchase of a Subscription. SmileBack will collect applicable sales tax if it determines that SmileBack has a duty to collect sales tax. SmileBack will present any taxes that it is required to collect at checkout, but note that actual taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates.
h. Non-payment and late fees
In the event of non-payment, SmileBack will have the right, with or without notice, to suspend or immediately terminate your access to the Service. We may determine whether or not to reinstate your access to the Service upon receipt of payment in full of all sums owed. Any payment not received by SmileBack on or before thirty (30) days following the due date shall automatically be assessed a late payment fee equal to the lesser of (i) the maximum allowed by applicable law; or (ii) the greater of ten (10%) percent or $50. Any payment not received by SmileBack on or before thirty (30) days following the due date shall also bear interest from the due date until paid in full at the lesser of one and a half percent (1.5%) per month or the maximum rate allowed by applicable law. If SmileBack is required to use a collection agency or attorney to collect money owed by you, you agree to pay the reasonable cost of collection. These collection costs include, but are not limited to, any collection agency’s fees, reasonable attorneys’ fees and court costs.
i. Disputed charges
Subject to applicable law, if you intend to dispute a charge or request a credit, you must contact SmileBack in writing within thirty (30) days of the date on the invoice. You hereby waive any right to dispute a charge or receive a credit for a charge that you do not report within thirty (30) days of the date on the applicable invoice. To dispute an invoice, you must send SmileBack a written itemized description of the specific items you dispute as contained in such invoice. The parties agree to use commercially reasonable efforts to timely resolve billing disputes.
11. Names and Markings
As between you and SmileBack, SmileBack reserves all right, title and interest in and to the name “SmileBack” and “Nex.to” and all other service names, trade names and trade dress owned and/or operated by SmileBack, as well as all of SmileBack’s URLs, website domain names, graphics, logos, page headers, button icons, scripts and other markings (collectively, “Names and Markings”). You may not use any of the Names and Markings without our express, prior written permission. You shall not delete or in any other manner alter the copyright, trademark, and other proprietary notices appearing on this Site or in any way connected with the Service. We make no proprietary claim to any third party names, copyrights, service marks, trademarks, or trade dress appearing on this Site. Any third party names, copyrights, service marks, trademarks, or trade dress appearing on this Site are property of their respective owners. Without our express, prior written consent, you may only print, download, or otherwise use the Names and Markings for your own internal, non-commercial use consistent with these Terms and applicable law. Except as otherwise permitted under the copyright laws of the United States, no other copying, distribution, redistribution, transmission, publication, or use is permitted.
12. Customer Data and Data Protection
As between you and SmileBack, you exclusively own all right, title and interest in and to all Customer Data. You hereby grant SmileBack a limited, non-exclusive, royalty-free, fully paid-up, sublicensable, worldwide right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, and distribute the Customer Data as may be necessary for SmileBack to provide the Service.
Each party undertakes to comply with its obligations under relevant applicable data protection or data privacy laws, principles and agreements. To the extent that Personal Information is processed when You or Your users’ use the Site or Service, the parties acknowledge that SmileBack is a data processor and You are a data controller and the parties shall comply with their respective statutory data protection and data privacy obligations and the terms of the DPA.
13. Aggregated Information
You may voluntarily provide SmileBack with suggestions, information, enhancement requests, recommendations or other feedback relating to the performance and features of this Site and/or the Service (“Feedback”). You hereby grant to SmileBack an exclusive, royalty-free, irrevocable, perpetual worldwide right and license to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute any such Feedback without limitation, without acknowledgement or compensation to you. Any Feedback may or may not be treated confidentially by SmileBack.
15. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Service or Site infringes any copyright that you own or control, you may notify SmileBack’s Designated Agent as follows:
Designated Agent: Copyright Agent
Address: SmileBack, LLC
427 N Tatnall St #64120
Wilmington, DE 19801-2230
Telephone: +1 (646) 663-4433
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to SmileBack for certain costs and damages.
You hereby grant SmileBack the right to reference and use your name, logos and trademarks, and disclose the nature of the Service provided to you by SmileBack, in SmileBack’s business development and marketing efforts and materials, including, without limitation, on the Site.
17. Third-Party Content
We may provide information about or links to third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Site or Service (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. SmileBack does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content and your access to and use of such Third-Party Content is at your own risk.
18. Disclaimer of Warranties
YOU AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY PROVISIONS SET FORTH BELOW ARE REASONABLE, REFLECT AN INFORMED, VOLUNTARY ALLOCATION OF THE RISKS BOTH KNOWN AND UNKNOWN THAT MAY EXIST IN CONNECTION WITH THESE TERMS, AND ARE FUNDAMENTAL ELEMENTS OF THESE TERMS WHICH MATERIALLY INDUCED SMILEBACK TO ENTER INTO THESE TERMS.
THIS SITE AND THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ALL CONTENT, LICENSES, FUNCTIONS, MATERIALS, AND INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THESE TERMS, THIS SITE AND THE SERVICE, EITHER EXPRESS OR IMPLIED, WHETHER ARISING UNDER ANY STATUTE, LAW, COMMERCIAL USAGE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
WE DO NOT WARRANT THAT THIS SITE, THE SERVICE, OR ANY DATA, MATERIALS, OR CONTENT CONTAINED THEREIN, SHALL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS SHALL BE CORRECTED; THAT THIS SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THAT THIS SITE OR THE SERVICE WILL BE SECURE FROM UNAUTHORIZED ACCESS; OR THAT THIS SITE OR THE SERVICE WILL DETECT EVERY SECURITY OR OTHER VULNERABILITY OF YOUR DEVICE, NETWORK OR SYSTEM. WE DO NOT WARRANT THAT THIS SITE AND/OR THE SERVICE WILL MEET YOUR REQUIREMENTS, ARE COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY SMILEBACK OR ANY OF OUR AUTHORIZED REPRESENTATIVES WILL SERVE TO CREATE OR EXPAND THE SCOPE OF ANY WARRANTY. WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, SERVICES, CONTENT, DATA, MATERIAL, SOFTWARE, EQUIPMENT, OR HARDWARE. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT USE OF THIS SITE AND THE SERVICE IS AT YOUR SOLE RISK. THE DISCLAIMER OF WARRANTIES SET FORTH IN THESE TERMS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL CONTINUE TO APPLY EVEN IF ANY EXCLUSIVE REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE.
Some state laws do not allow disclaimers of implied warranties. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you.
19. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SMILEBACK WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF SMILEBACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SMILEBACK BE RESPONSIBLE FOR ANY BUSINESS INTERRUPTIONS CAUSED BY YOUR USE OF THIS SITE AND/OR THE SERVICE OR YOUR INABILITY TO ACCESS THIS SITE AND/OR THE SERVICE. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU FOR THE COST OF PROCUREMENT OF REPLACEMENT PRODUCTS, SOFTWARE, SERVICES, DATA, CONTENT OR MATERIAL. THE CUMULATIVE LIABILITY OF SMILEBACK TO YOU FOR ALL CLAIMS RELATING TO THESE TERMS, YOUR USE OF THIS SITE AND/OR THE SERVICE, OR SUBMISSION OF INFORMATION THROUGH THIS SITE OR THE SERVICE, IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE GREATER OF (I) ALL FEES PAID BY YOU TO SMILEBACK DURING THE SIX MONTH BILLING PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE; OR (II) $500. THE LIMITATION OF LIABILITY SET FORTH IN THESE TERMS FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL CONTINUE TO APPLY EVEN IF ANY EXCLUSIVE REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE.
Some state laws do not allow limitations on certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you.
You will defend, indemnify, and hold harmless SmileBack and its officers, directors, shareholders, employees, affiliates, independent contractors, agents, and representatives from and against all claims and expenses, including, but not limited to, attorneys’ fees and costs, arising out of, or attributable to (a) your breach or violation of these Terms; (b) your failure to provide accurate, complete, and/or current information when using this Site, registering to use or using the Service, and/or submitting information through this Site or the Service; (c) your use of or access to this Site or the Service; (d) your Feedback, (e) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); and (f) your conduct in connection with the Service or Site.
21. Dispute resolution
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with SmileBack and limits the manner in which you can seek relief from us.
Except for small claims disputes in which you or SmileBack seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or SmileBack seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and SmileBack waive your rights to a jury trial and to have any dispute arising out of or related to these Terms, our Service or Site resolved in court. Instead, all disputes arising out of or relating to these Terms, our Service or Site will be resolved through confidential binding arbitration held in New Castle County, Delaware in accordance with the Streamlined Arbitration Rules and Procedures (“Rules“) of the Judicial Arbitration and Mediation Services (“JAMS“), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and SmileBack agree that any dispute arising out of or related to these Terms, our Service or Site is personal to you and SmileBack and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and SmileBack agree that these Terms affect interstate commerce and that the enforceability of this Section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. If you are an individual, you and SmileBack agree that for any arbitration you initiate, you will pay the filing fee and SmileBack will pay the remaining JAMS fees and costs. You and SmileBack agree that the state or federal courts of the State of Washington and the United States sitting in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR OUR SITE OR SERVICE MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND SMILEBACK WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
22. Governing law, jurisdiction and venue
These Terms shall be governed by and construed in accordance with the internal laws of the State of Delaware, without reference to its choice of law principles to the contrary. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. For any action to compel arbitration or enforce an arbitration award or seek injunctive relief pursuant to these Terms, the parties hereby expressly consent to the jurisdiction and venue of the state and/or federal courts in and/or for New Castle County, Delaware, USA, and each party hereby expressly waives any objection to such venue based upon forum non-conveniens or otherwise.
23. Force majeure
Neither party shall be liable for any delay in performing its obligations if such delay is caused by circumstances beyond the party’s reasonable control, including, without limitation, any delay caused by any act or omission of the other party, acts of God, war, terrorism, floods, windstorm, labor disputes, or delay of essential materials or services. The delayed party shall promptly notify the other party of the reasons for and the likely duration of the delay, whereupon an extension of time equal to the period of delay, but not greater than thirty (30) days, shall be granted to the delayed party. If the period of the delay shall exceed thirty (30) days, then the non-delayed party may cancel further performance of the delayed obligation, without any penalty whatsoever. This paragraph shall not apply to any payment obligations.
24. Term and survival
Your agreement to be bound by these Terms commences with your visiting or using this Site, registering to use or using the Service, or otherwise submitting information through this Site or the Service, and your agreement to be so bound will continue until your right to use this Site and/or the Service is either canceled or terminated. The following provisions will survive cancellation or termination: Sections 1, 7, and 9 through 24. If, following the cancellation or termination of your right to use this Site and/or the Service, you visit or use this Site, register to use or use the Service, or otherwise submit information through this Site or the Service, then you again agree to be bound by these Terms.
25. General information
a. Entire Understanding
These Terms, as amended from time to time by SmileBack, represents the entire understanding and agreement between you and SmileBack regarding the subject matter of these Terms and supersede any and all other previous agreements, understandings, or representations regarding the same.
c. No Waiver and Enforceability
No waiver of any portion of these Terms will be effective unless it is in writing and signed by both parties. The failure of SmileBack to require performance of any obligation under these Terms will not affect our right to enforce any provision of these Terms at a subsequent time, and the waiver of any rights arising out of any breach will not be construed as a waiver of any rights arising out of any prior or subsequent breach.
If any court of competent jurisdiction deems any part of these Terms unlawful, void, or unenforceable, only that portion of the applicable Terms that is unlawful, void, or unenforceable will be stricken.
Your rights and obligations under these Terms are not assignable, transferable, or sub-licensable by you.
f. Notices and Customer support
427 N Tatnall St #64120
Wilmington, DE 19801-2230