Last Updated: 13 April 2017
In addition to the capitalized defined within these Terms of Service, 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.
"Additional Service" means any Service provided to a Customer by SmileBack, such as development, configuration, implementation, integration, training, support and consulting services, which is not one of our standard services.
"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.
"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 and all of our current and future intellectual property rights and proprietary technology relating to the Service, including, without limitation, all copyrights, patents, trademarks and software, regardless if whether the service is provided as a free trial or paid service. The Service will include, 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 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.
You are only entitled to use this Site and the Service for lawful purposes and pursuant to these Terms of Service. By using 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 or of legal age to agree to these Terms of Service; (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 of Service; and (iv) you will comply with our Acceptable Use Policy. To determine your compliance with these Terms of Service, we reserve the right, but are not obligated, to monitor your use of this Site and/or the Service.
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. 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. Your license to use the Software Agent is automatically revoked if you violate these Terms of Service or you use of this Site and/or the Service are canceled or terminated. SmileBack reserves all rights not expressly granted to you in these Terms of 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.
Pursuant to these Terms of Service, you may, from time to time, request us to provide you with Additional Services. All Additional Services must be set forth in a written "Statement of Work" executed by both you and us prior to our commencing performance of any Additional Service. Each Statement of Work must include a description of the applicable deliverables ("Deliverables") to be provided by us and/or Services performed by us, commercially reasonable terms for testing and collaboration with us, and pricing, as well as estimated time-frames for delivery or performance, as applicable. A Statement of Work may also include such additional terms and conditions as you and SmileBack may agree to include. If there is a conflict between these Terms of Service and any Statement of Work, then these Terms of Service will prevail, unless the Statement of Work specifically refers to the conflict and states that the Statement of Work will prevail. Each Statement of Work is hereby incorporated into these Terms of Service by reference.
Your use of this Site and/or the Service may be interrupted from time to time for any of several reasons, 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 and 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.
Although this Site and the Service are accessible worldwide, this Site and the Service are neither designed nor intended for use outside the United States. Those who choose to access this Site or the Service from locations outside the United States do so on their own initiative and at their own risk and are responsible for compliance with all local laws. 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. 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.
Use of the Service requires that you register with a username and password. Your username and password will allow you to log-in, access and use this Site and the Service. YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY, MAINTENANCE, AND PROPER USE OF YOUR USERNAME AND PASSWORD AND SOLELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. You agree not to disclose any usernames or passwords to any third party and not to permit any third party to make use of any username or password. You also agree to use proper termination procedures at the end of each session during which you access this Site and the Service, including full termination of your connection with the Service.
You shall immediately notify SmileBack by e-mail if you become aware of any actual or suspected unauthorized access to or use of the Service by any party or any other actual or potential security breach involving the Service. 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 (i) immediately cease any access to such information; (ii) take reasonable steps to prevent the disclosure of any such unauthorized information; and (iii) immediately inform SmileBack of this situation by e-mail.
Our plans and pricing information can be found on our homepage. All prices are exclusive of any and all taxes. You shall be solely responsible for payment of any and all such taxes. Pricing for the Service may change from time to time. If SmileBack changes any pricing, we will provide you with at least thirty (30) days' prior notice. If pricing changes, your continued use of the Service after the change takes effect indicates your agreement with the new pricing.
All fees for the Service are billed and due in advance and are non-refundable. Monthly or yearly fees will commence once you've upgrade your account to a paid account and will continue until your right to use this Site and the Service are either canceled or terminated. There will be no refunds or credits for partial periods of using the Service or refunds for periods unused with an open account. No exceptions will be made. SmileBack will provide you with a invoice for the Service; provided, however, if you do not receive an invoice from SmileBack, you are still responsible for payment for the Service while your account is active. We reserve the right to invoice you retroactively for the Service provided to you and for which we have not previously invoiced you or collected from you. Prices are subject to change upon thirty (30) days notice from SmileBack. We will not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Service.
We accept payments by Visa, MasterCard and American Express. For credit card purchases, we obtain a pre-approval from the credit card company for the amount of the order. Billing to your credit card occurs at the time of purchase. Debit cards and check cards have daily spending limits that may prevent the processing of your order. If a purchase has been declined online due to credit card issues, please ensure all data is correct and resubmit. If the transaction is not accepted online, you will be unable to use that card for your purchase and should use another credit card.
You may cancel the Service at any time by contacting SmileBack at the e-mail address provided below. You are solely responsible for properly canceling your account with SmileBack. Once you cancel your account, your information may no longer be available or accessible. If you cancel the Service during a period which is not pre-paid in full and in advance, your cancellation will take effect immediately.
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.
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.
Site and service
SmileBack owns all right, title and interest in and to this Site and the Services. SmileBack reserves all rights not expressly granted to you in these Terms of Service.
As between you and SmileBack, SmileBack owns 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 of Service 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.
SmileBack exclusively owns all right, title and interest in and to any and all suggestions, enhancement requests, recommendations or other feedback you provide and relating to this Site and/or the Service ("Feedback").
We respect the intellectual property rights of our customers and third parties. Our DMCA Policy addresses how we handle notices of alleged copyright infringement appearing on this Site. SmileBack's designated agent for notices of alleged copyright infringement is:
PO Box 34628 #64120
Seattle, WA 98124-1628
E-mail: [email protected]
SmileBack may reference and use your name, logos and trademarks, and may 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 this Site.
This Site may contain links to thirty party websites. These links do not constitute an endorsement by SmileBack
You may link to this Site's homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you may not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You may not establish a link from any website that is not owned by you. This Site may not be framed on any other website, nor may you create a link to any part of this Site other than the homepage. You agree to cooperate with us in causing any unauthorized framing or linking to cease immediately. We reserve the right to withdraw linking permission without notice.
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 OF SERVICE, AND ARE FUNDAMENTAL ELEMENTS OF THESE TERMS OF SERVICE WHICH MATERIALLY INDUCED SMILEBACK TO ENTER INTO THESE TERMS OF SERVICE.
THE TRANSMISSION, STORAGE, VIEWING AND RETRIEVAL OF DATA AND FILES THROUGH THE INTERNET ARE SUBJECT TO A VARIETY OF CONDITIONS BEYOND OUR CONTROL THAT MAKE SUCH TRANSMISSION, STORAGE, VIEWING AND RETRIEVAL POTENTIALLY UNRELIABLE. 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 MAXIMUM EXTENT PROVIDED BY LAW, WE HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THESE TERMS OF SERVICE, 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, OR THAT THIS SITE AND/OR THE SERVICE ARE COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM. WE DO NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THIS SITE AND/OR THE SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, SECURITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY SMILEBACK OR ANY OF OUR AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS 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. WE SHALL NOT BE LIABLE FOR YOUR USE OF THIS SITE AND/OR THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. 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 OF SERVICE 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.
This Site and the Service are not fault-tolerant and are not designed, manufactured or intended for any use requiring fail-safe performance in which the failure of this Site or the Service could lead to death, serious personal injury or severe physical or environmental damage ("High Risk Activities"). This includes the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control or other situations in which a malfunction of this Site and/or the Service could result in foreseeable risk of injury, death or property damage. You agree NOT to use this Site or the Service in connection with any High Risk Activities.
This Site and/or the Service may become unavailable due to any number of factors, including, without limitation, scheduled or unscheduled maintenance, technical failure of the software, telecommunications infrastructure, or the unavailability or interruption of access to the Internet. The disclaimers set forth in this section shall apply regardless of whether (i) we determine that your device, network or system is deemed secure; (ii) you perform such modifications to your device, network or system as we reasonably suggest in order for your device, network or system to be deemed "secure", or (iii) otherwise.
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.
WE SHALL NOT BE RESPONSIBLE FOR ANY BUSINESS INTERRUPTIONS THAT MAY BE 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. WE SHALL NOT BE LIABLE FOR ANY indirect, incidental, special, consequential, PUNITIVE or exemplary DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THIS SITE AND/OR THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF SMILEBACK TO YOU FOR ALL CLAIMS RELATING TO THESE TERMS OF SERVICE, 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 MONTHLY BILLING PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE; AND (II) $100. THE LIMITATION OF LIABILITY SET FORTH IN THESE TERMS OF SERVICE 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.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, THIS SITE AND/OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
You hereby agree to 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 (i) any breach or violation by you of these Terms of Service; (ii) 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; (iii) your use or misuse of this Site or the Service; and (iv) any agreement between you and any third party.
Most concerns involving this Site and/or the Service can be resolved quickly and efficiently through our customer service department. If you are unable to resolve your concern within ten (10) business days of contacting our customer service department, then either party may file an arbitration proceeding pursuant to these Terms of Service to resolve the dispute.
Any controversy or dispute not resolved through our customer service department and arising out of these Terms of Service, use of this Site, registering to use or using the Service, and/or the submission of any information through this Site or the Service, shall be submitted to final binding arbitration in King County, Washington before the American Arbitration Association under the commercial arbitration rules then administered by the American Arbitration Association. Any award or decision obtained from any such arbitration proceeding shall be final and binding on the parties, and judgment upon any award thus obtained may be entered in any court having jurisdiction thereof. Except as otherwise provided in these Terms of Service, no action at law or in equity based upon any claim arising out of or related to these Terms of Service, use of this Site, registering to use or using the Service, and/or the submission of any information through this Site or the Service, shall be instituted in any court by any party, except: (i) an action to compel arbitration pursuant to this section; (ii) an action to enforce an award obtained in an arbitration proceeding in accordance with this section; or (iii) an action for injunctive relief. Any arbitration relating to these Terms of Service, use of this Site, registering to use or using the Service, and/or the submission of any information through this Site or the Service, will take place on an individual basis and class arbitrations and class actions are hereby specifically agreed to as not permitted. You agree that you and SmileBack are each waiving their right to trial by jury or to participate in a class action.
The prevailing party in any arbitration proceeding or any action to compel arbitration, enforce an arbitration award, or seek injunctive relief and arising out of or relating to these Terms of Service use of this Site, registering to use or using the Service, and/or the submission of any information through this Site or the Service will be entitled to an award of their attorneys' fees and costs incurred at trial and all levels of appeal. You also agree that service of any court paper may be affected upon you by mail or in such other manner as may be provided under applicable laws, rules of procedure or local rules. You acknowledge that we may be irreparably damaged if these Terms of Service are breached by you, and damages at law would be an inadequate remedy. In the event of a breach or threatened breach of any provision of these Terms of Service by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, or to a decree for specific performance of the provisions of these Terms of Service.
These Terms of Service shall be governed by and construed in accordance with the internal laws of the State of Washington, without giving effect to principles of conflicts of law. 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 of Service, the parties hereby expressly consent to the jurisdiction and venue of the state and/or federal courts in and/or for King County, Washington, USA, and each party hereby expressly waives any objection to such venue based upon forum non-conveniens or otherwise.
Except for your obligation to pay SmileBack, 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.
At our sole discretion and at any time, we may amend these Terms of Service. You should review these Terms of Service for amendments each time you visit or use this Site or purchase or use the Service. For your convenience, we post on this Site the last date these Terms of Service were updated. If our Terms of Service are amended, the amended Terms of Service will take effect immediately for all users of this Site and the Service. Your continued use of this Site and/or the Service following an amendment will evidence your acceptance of the amended Terms of Service.
PO Box 34628 #64120
Seattle, WA 98124-1628
E-mail: [email protected]