Terms and Conditions
Applicability of Terms
Modification and Termination
Orders and Purchases
Use of the Platform
Copyright Infringement Matters
Disclaimer of Warranties
Limitation of Liability
Arbitration Clause & Class Action Waiver
Your Compliance With Applicable Laws
Important Note to New Jersey Consumers
- Applicability of Terms
- Modification and Termination
- Orders and Purchases
- Use of the Platform
- Copyright Infringement Matters
- Disclaimer of Warranties
- Limitation of Liability
- Arbitration Clause & Class Action Waiver
- Your Compliance With Applicable Laws
- Important Note to New Jersey Consumers
Your use of this website is governed by these Terms & Conditions.
LAST UPDATED: 10/3/2018
Welcome to SmileTwice.com. These Terms & Conditions (the “Terms”) apply to the Twice Smiles website located at www.smiletwice.com and all other sites, mobile sites, services, applications, platforms and tools where these Terms appear or are linked (collectively, the "Platform"). As used in these Terms & Conditions, "Twice", "us" or "we" refers to Twice Smiles LLC, a Delaware limited liability company, and its subsidiaries and affiliates.
PLEASE READ THE FOLLOWING CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. THE INFORMATION CONTAINED HEREIN SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE TRANSACTION(S) CONTEMPLATED FOR HEREBY. THESE TERMS REQUIRE THE USE OF ARBITRATION (ON AN INDIVIDUAL BASIS ONLY; I.E., CASE CONSOLIDATIONS AND CLASS-ACTIONS ARE NOT PERMITTED) IN ORDER TO RESOLVE DISPUTES. PLEASE REVIEW THESE TERMS IN THEIR ENTIRETY BEFORE ENTERING INTO ANY TRANSACTION HEREUNDER IN ORDER TO CONFIRM YOUR ACCEPTANCE HEREOF. YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS PLATFORM UNLESS YOU: (A) AGREE TO THESE TERMS IN THEIR ENTIRETY; (B) ARE AT LEAST 13 YEARS OLD; AND (C) ARE NOT PROHIBITED FROM ACCESSING OR USING THIS PLATFORM OR ANY OF THIS PLATFORM'S CONTENTS, PRODUCTS, OR SERVICES BY ANY APPLICABLE LAW, RULE, OR REGULATION.
BY ACCESSING OR OTHERWISE USING THE PLATFORM YOU AGREE TO THESE TERMS. Any person or entity who interacts with the Platform through the use of crawlers, robots, browsers, data mining or extraction tools, or other functionality, whether such functionality is installed or placed by such person or entity or a third party, is considered to be using the Platform. If at any time you do not accept all of these Terms, you must immediately stop using the Platform. Certain areas within the Platform or certain offers (for example, certain discounts or coupons) may be governed by additional terms ("Additional Terms"). By using those areas of the Platform or by taking advantage of any such offer, you agree to the Additional Terms. The Additional Terms are incorporated into these Terms, and any reference to these Terms includes the Additional Terms.
Applicability of Terms
These Terms shall apply to your access to, and any usage by you of the Platform, any features or services made available through the Platform or any of the Content (defined below). For the avoidance of doubt, these Terms shall also (and without limitation) to your purchases including the purchase of any goods and/or services through the Platform (such goods and services purchase through the Platform, collectively, “Products”)).
Modification and Termination
Twice may at any time: (i) modify or discontinue any part of the Platform; (ii) charge, modify or waive fees required to use the Platform; or (iii) offer opportunities to some or all Platform users. Twice reserves the right to make changes to these Terms at any time, and such changes will be effective immediately upon being posted on the Platform. Each time you use the Platform, you should review the current Terms. You can determine when these Terms & Conditions were last revised by referring to the "LAST UPDATED" legend at the top of these Terms. Your continued use of the Platform will indicate your acceptance of the current Terms; however, any change to these Terms after your last usage of the Platform will not be applied retroactively.
Twice reserves the right, in its sole discretion, to restrict, suspend, or terminate your Account, any agreement formed with you pursuant to these Terms, your Account, your access to all or any part of the Platform including without limitation any features or services made available to you through the Platform or the Content at any time and for any reason (including if we believe that you have engaged in any suspected fraudulent or abusive activity, or violated or acted inconsistently with the letter or spirit of these Terms) without prior notice or liability, including the right to reject any order you place for the purchase of Products, which may result in the forfeiture and destruction of all information associated with your Account. We reserve the right to change, suspend, or discontinue all or any part of the Platform, any Content or any Product at any time without prior notice or liability. All provisions of these Terms or any other party of the agreement between you and Twice formed pursuant to these Terms which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity, limitations of liability, class action waivers and arbitration.
You may be required to register for an account (your “Account”) with Twice in order to access certain features of, or services made available through, the Platform. With respect to any such registration, we may refuse to grant to you the username you request. Your username and password are for your personal use only. If you use the Platform, you are responsible for maintaining the confidentiality of your Account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your Account or password. In addition to all other rights available to Twice including those set forth in these Terms, Twice reserves the right, in its sole discretion, to terminate your Account, refuse service to you, or cancel any orders you place through the Platform.
Orders and Purchases
Placing an Order. When placing an order on the Platform, you are effectively offering to purchase whatever Products you select. We reserve the right to accept or reject any order in our own discretion. We will only accept or reject an order in its entirety. Should we elect to accept your offer, you will receive a confirming email at the email address that you provide at such time. Notwithstanding, we reserve the right to cancel any order once accepted by us (as evidenced by a confirming email) at any time in our sole discretion. In addition, we reserve the right, in our sole discretion, to take steps to verify your identity to process your order. Additionally, you have the option of canceling your order (in its entirety only) at any time prior to our having sent to you the confirming email referenced herein.
Payment Terms. All applicable prices are set forth alongside the Products offered on the Platform. Such prices are subject to change at any time by us in our sole discretion. You will be responsible for the prices stated at the time of your transaction, as well as any: (i) sales, use, excise, and related taxes; and (ii) shipping and handling charges. Payment may only be made with a valid credit, debit card, or use of a bonafide electronic payment provider (i.e., PayPal). By using any such card or payment provider, you are hereby representing and warranting your full right and authority to make such purchase in the manner elected without violating any applicable law, rule, or regulation.
Payment Information; Payment Processor. You agree to provide accurate and up-to-date payment information at the time you order any Product through the Platform. We have contracted with a third-party payment processor to facilitate purchases made on the Platform. When you make a purchase through the Platform, you will provide your payment details and any additional information required to complete your order directly to our third-party payment processor. You should be aware that online payment transactions are subject to validation checks by our payment processor and your card issuer and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our payment processor uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Please note, it is possible that your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our payment processor may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
Product and Pricing Information. We attempt to provide accurate descriptions of our Products. We do not warrant, however, that the descriptions are accurate, complete, reliable, current or error-free. If a Product is not as described, your sole remedy is to return the Product, unless otherwise specified in writing by us. Similarly, we cannot, however, insure against pricing errors. We reserve the right, at our sole discretion, to not process or to cancel any orders placed for a Product or service whose price was incorrectly posted on the Platform as a result of an error. If this occurs, we will notify you by email. It is possible that a Product may be in stock or available for purchase when you place the order, and sold out by the time we attempt to process the order. Should this happen, we will notify you by email and cancel the item from your order. We also may offer some Products for sale before they have been manufactured or arrive at our warehouse. When you preorder these Products, we will ship them out once they are available. In rare cases, these items may not become available for shipping. Should this happen, we will notify you by email and cancel the item from your order. We occasionally run promotions or provide limited-time offers for our Products. Please review the promotion or offer for eligibility and other terms and conditions. All other information with respect to the purchase of Products from the Platform can be found on the Frequently Asked Questions Page (the “FAQ”) located at www.smiletwice.com/FAQ, including our policies on shipping and tax, billing, order acceptance, gift cards, and returns and exchanges.
Personal Use Only. All orders of Products must be for your personal use only. By purchasing Products, you hereby agree not to resell, distribute or use in any way such Products for any commercial purposes.
Delivery. It is our responsibility to ship your accepted order to you at the address you provide when making the order. You will be responsible for all associated shipping & handling charges. While we agree to use reasonable efforts to meet the shipping and delivery dates provided online, we shall not be responsible for any delays in shipments. Your order will be delivered to the delivery address that you specify when placing your order. If we are unable to deliver to your delivery address, for example if your delivery address is geographically remote, we will notify you before we accept your order. Products comprised within the same order cannot be delivered to different addresses. The Product(s) ordered will be at your risk from the time you receive the Product(s). Ownership of the Product(s) ordered will also pass to you upon your receipt of the Product(s), provided full payment of all sums due in respect of the Product(s), including any delivery charges, has been received. If any Product you order is damaged or faulty when delivered to you or has developed a fault, you may have one or more legal remedies available to you, depending on when you make us aware of the problem, in accordance with your legal rights. If you believe a Product was delivered damaged or faulty or has developed a fault, you should inform us as soon as possible, preferably in writing, giving your name, address and order reference. Nothing in this section affects your legal rights.
Returns and Exchanges. For the terms and conditions for returns and exchanges of Products, please see our FAQ which can be found at: https://www.smiletwice.com/pages/faq. For the avoidance of doubt, any terms and conditions included in the FAQ shall be deemed Additional Terms.
Use of the Platform
Content. The Platform contains or makes available through it various information and materials (including but not limited to information and materials about our Products) including but not limited to software, text, graphics and images (collectively referred to as the “Content”). We may own the Content, or portions of the Content may be made available to us through arrangements that we have with third parties. We do not guarantee that any Content you access on or through the Platform is or will continue to be accurate. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy or display the Content, including but not limited to use of framing or mirrors, except as permitted under these Terms. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of these Terms, your right to access and/or use the Content and Platform shall automatically terminate and you shall immediately destroy any copies you have made of the Content.
Twice Trademarks. The trademarks, service marks, and logos of Twice (the “Twice Trademarks”) used and displayed in connection with the Platform and the Products are registered and unregistered trademarks or service marks of Twice. Other company, product, and service names located on the Platform or otherwise used in connection with the Platform or Products may be trademarks or service marks owned by third parties (the “Third Party Trademarks”, and, collectively with the Twice Trademarks, the “Trademarks”). Nothing on or made available to you on or through the Platform or in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Platform or otherwise used in connection with the Platform or the Products without our prior written consent specific for each such use. The Trademarks may not be used to disparage us or any applicable third party, our or the applicable third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Twice Trademarks as part of a link to or from any website is prohibited without our prior written consent. All goodwill generated from the use of any Twice Trademark shall inure to our benefit.
Restrictions on Use. You agree not to: (a) take any action that imposes an unreasonable load on the Platform’s infrastructure; (b) use any device, software or routine to interfere or attempt to interfere with the proper working of the Platform or any activity being conducted on the Platform; (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Platform; (d) delete or alter any material we or any other person or entity posts on the Platform; or (e) otherwise take any action in violation of our guidelines and policies.
Third Party Platforms. The Platform may contain links to third party websites, services or other resources on the Internet, including but not limited to our sponsors and social media networks, and other websites, services or resources may contain links to the Platform (“External Platforms”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Platforms. The content of such External Platforms is developed and provided by others. You should contact the site administrator for those External Platforms if you have any concerns regarding such links or any content located on such External Platforms. We are not responsible for the content of any linked External Platforms and do not make any representations regarding the content or accuracy of any materials on such External Platforms. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Platforms, you do so at your own risk. You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods or services available on or through any External Platforms.
User Content. With respect to any Feedback (as defined below) or other content or other materials you provide to or upload through the Platform or share with other Platform users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein, and that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You shall not (and shall not permit any third party to) take any action or upload, post, or otherwise distribute any User Content that infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty. You shall not (and shall not permit any third party to) take any action or upload, post, or otherwise distribute any User Content that you know is false, misleading, untruthful or inaccurate, or is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion.
License to User Content. By uploading any User Content to the Platform you hereby grant and will grant Twice and its affiliated companies, successors and assigns a non-exclusive, worldwide, royalty-free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to reproduce, adapt, publish, create derivative works from, copy, display, upload, publicly perform, distribute, store, modify and otherwise use your User Content and any name, username, likeness, voice or photograph provided in connection with your User Content, without compensation to you, in connection with the operation of the Platform or the promotion, advertising or marketing of the Platform or the Products, in any form, medium or technology now known or later developed, and including after your termination of your Account or your use of the Platform. For clarity, the foregoing license does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third-party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Moral Rights. Except where prohibited by applicable law, by submitting User Content through the Platform, you are waiving and agreeing not to assert any copyrights or “moral” rights or claim resulting from our alteration of any User Content (including without limitation any video, photograph(s), illustrations, statements or other work contained in the User Content). You are also agreeing to appoint Twice as your irrevocable attorney-in-fact with respect to the User Content, with the right to execute and deliver any documents, in your name and on your behalf, to ensure that we can use the User Content that you are licensing in any way we see fit, own and protect the rights in any derivative works created from your User Content, and have the User Content removed from any other website or forum.
Feedback. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Platform, the Content or the Products (collectively, “Feedback”) that you provide to us are non-confidential and we will be entitled to the unrestricted use and dissemination of any such Feedback for any purpose, commercial or otherwise, without your acknowledgment or compensation to you.
Preservation and Disclosure of User Content. You acknowledge and agree that we may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms or any other agreement between you and Twice related to the Platform, any features or services made available through the Platform or any transactions contemplated by these Terms (including without limitation any order and purchase of Products); (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Twice, our users and the public. You understand that the technical processing and transmission of the Platform, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Infringement Matters
Our policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act ("DMCA"). Copyright-infringing materials found on the Platform can be identified and removed via our process listed below, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.
If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide Twice’s copyright agent the written information specified below. Please note that this procedure is exclusively for notifying Twice that your copyrighted material has been infringed. Twice does not and will not make any legal decisions about the validity of your claim of infringement or the possible defenses to a claim. When a clear and valid notice is received pursuant to the guidelines set forth below, Twice will respond by either taking down the allegedly infringing content or blocking access to it. Twice may contact the notice provider to request additional information. Under the DMCA, Twice is required to take reasonable steps to notify the user who posted the allegedly infringing content ("Alleged Infringer"). The Alleged Infringer is allowed under the law to send Twice a counter-notification. Notices and counter-notices are legal notices distinct from regular Platform activities or communications. We may publish or share them with third parties in our sole discretion (in addition to producing them pursuant to a subpoena or other legal discovery request). Anyone making a false or fraudulent notice or counter-notice may be liable for damages under the DMCA, including costs and attorneys’ fees. Any person who is unsure of whether certain material infringes a copyright held by such person or a third party should contact an attorney.
To file a DMCA notice, the copyright owner must send in a written letter by fax, regular mail, or email only. We reserve the right to ignore a notice that is not in compliance with the DMCA, and we may, but are not obligated to, respond to a non-compliant notice. A DMCA notice must: Identify specifically the copyrighted work(s) believed to have been infringed (for example, "My copyrighted work is the picture that appears at [list location where material is located]."); Identify the Content that a copyright owner claims is infringing upon copyrighted work. The copyright owner must provide information reasonably sufficient to enable us to locate the item on the Platform. The copyright owner should provide clear screenshots of the allegedly infringing materials for identification purposes only. The information provided should be as detailed as possible; Provide information sufficient to permit us to contact the copyright owner directly: name, street address, telephone number, and email (if available); If available, provide information sufficient to permit us to notify the Alleged Infringer (email address preferred); Include the following statement: "I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law"; Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed"; Be signed; and Be sent to our DMCA designated agent at the following address:
DMCA Designated Agent
Twice Smiles LLC
14 Harrows Lane, Purchase, NY 10577.
fax: (636) 600-2932
Disclaimer of Warranties
Although Twice reserves the right to correct any errors, omissions, or inaccuracies, we do not accept any responsibility for the accuracy, reliability, currency, or completeness of any Content, any Products, the Platform or any materials, features, services or other resources available on or accessible through the Platform (even typographical or imaging errors), including the substance, accuracy, or sufficiency of any service or Product information included in the Content or otherwise contained on or made available through the Platform. Further, we do not represent that the Platform will operate without interruption or error, nor do we provide any assurances of the availability or usability of the online shopping services.
Twice does not accept any liability for the consequences arising from the application, use, or misuse of use or misuse of the Platform, any features or services made available through the Platform, any Content or any Products, including any injury and/or damage to any person or property as a matter of product liability, negligence, or otherwise.
Your access and use of the Platform and any other Internet sites, including any Content, Products, information, materials, features, goods, services or other resources contained on, or otherwise made available by or through, them, is solely at your own risk.
Twice will attempt to keep the Content, services and resources contained on or accessible through the Platform timely and accurate, but makes no guarantees, and disclaim any implied warranty or representation about the Platform’s or any Content’s accuracy, relevance, timeliness, completeness, reliability, security or appropriateness for a particular purpose.
TWICE AND ITS SUPPLIERS AND VENDORS DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING ANY AND ALL PRODUCTS OR THE PLATFORM INCLUDING WITHOUT LIMITATION ANY AND ALL CONTENT, SERVICES, FEATURES, FUNCTIONALITY, AND ANY OTHER RESOURCES AVAILABLE ON OR ACCESSIBLE THROUGH THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ALL PRODUCTS, THE PLATFORM AND ANY AND ALL CONTENT, SERVICES, FEATURES, FUNCTIONALITY, AND ANY OTHER RESOURCES AVAILABLE ON OR ACCESSIBLE THROUGH THE PLATFORM ARE MADE AVAILABLE "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TWICE OR ITS SUPPLIERS OR VENDORS, OR ITS OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, AFFILIATES, SUPPLIERS, VENDORS, LICENSORS, CO-BRANDERS OR PARTNERS (COLLECTIVELY, "TWICE PARTIES") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, LITIGATION, OR ANY OTHER PECUNIARY LOSS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE, OPERATION OR PERFORMANCE OF THE PLATFORM, WITH THE DELAY OR INABILITY TO USE THE PLATFORM, ANY DEFECTS IN THE PLATFORM, OR WITH THE PROVISION OF, OR FAILURE TO MAKE AVAILABLE, ANY PRODUCTS, CONTENT, SERVICES, OR OTHER RESOURCES AVAILABLE ON OR ACCESSIBLE THROUGH THE PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Neither Twice nor its suppliers or vendors guarantee the sequence, accuracy, or completeness of any information or content on this or any other Internet sites and shall not be liable in any way to you or anyone else who may use the information or content or to whom the information or content may be furnished, for any delays, inaccuracies, unavailability, errors, or omissions therefrom or in the transmission or delivery of all or any part thereof or for any damage arising therefrom or occasioned thereby.
THE OPERATION OF THE PLATFORM MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND TWICE'S OR ITS SUPPLIERS' OR VENDORS' CONTROL. THE OPERATION OF THE PLATFORM AND ANY FEATURES OR SERVICES OFFERED OR MADE AVAILABLE ON OR THROUGH PLATFORM, WHETHER BY TWICE, ITS SUPPLIERS OR ITS VENDORS, MAY NOT BE SECURE. SECURITY AND PRIVACY RISKS CANNOT BE ELIMINATED. PASSWORD PROTECTION AND ANY OTHER SECURITY MEASURES MAY NOT PREVENT UNAUTHORIZED ACCESS TO MATERIALS YOU MAY USE OR ALLOW OTHER PERSONS TO USE IN CONNECTION WITH THE PLATFORM, INCLUDING ANY USER CONTENT OR OTHER MATERIALS POSTED OR SUBMITTED TO THE PLATFORM.
ANY LIABILITY ON THE PART OF THE TWICE PARTIES, IN THE AGGREGATE, SHALL NOT EXCEED THE FEES PAID BY YOU FOR ANY PARTICULAR PRODUCT OR $25, WHICHEVER IS GREATER.
You acknowledge and agree that the limitations set forth above are fundamental elements of these Terms and any agreement formed between you and Twice pursuant to them and neither the Platform nor the Products would be provided to you absent such limitations.
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH JURISDICTIONS, THE LIABILITY OF THE TWICE PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. NOTHING IN THESE TERMS AFFECTS ANY LEGAL RIGHTS AND REMEDIES YOU HAVE UNDER LOCAL LAW.
To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless the Twice Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of these Terms, any User Content or Feedback you provide, or your access to, use or misuse of the Platform, any features or services made available through the Platform, any Content or any Products. We shall provide notice to you of any such claim, suit, or proceeding that triggers this indemnification obligation, and you agree to do the same by writing to the Twice at firstname.lastname@example.org. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
Arbitration Clause & Class Action Waiver
YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS, ANY TRANSACTIONS CONTEMPLATED BY THESE TERMS (INCLUDING WITHOUT LIMITATION THE ORDER AND PURCHASE OF ANY PRODUCTS THROUGH THE PLATFORM), OR ANY ACCESS TO OR USE OF BY YOU OF THE PLATFORM, ANY OF ITS FEATURES OR SERVICES MADE AVAILABLE THROUGH THE PLATFORM, AND/OR ANY RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate.
YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s Account, purchase or use of any Products or any other access to or use of the Platform, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platform (including without limitation any order and purchase of any Products through this Platform) or these Terms must be filed within one (1) year after such claim of action arose or be forever banned.
The prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Section 12 will be null and void. This agreement to arbitration will survive the termination of your relationship with us.
Your Compliance With Applicable Laws
You are solely responsible for ensuring compliance with the laws of your specific jurisdiction and for abiding by all applicable local, state, and federal laws and regulations. In addition, you expressly acknowledge that the United States controls the export of products and information and agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
We may provide notices hereunder to you by: (i) email; (ii) regular mail; or (iii) posting them on the Platform. You shall be responsible for ensuring that you have provided us with your current email and mailing addresses. You can contact us at any time by any of the following means: (a) facsimile, at (636) 600-2932; (b) by personal delivery, overnight courier, or registered or certified mail to Twice Smiles LLC, 14 Harrows Lane, Purchase, NY 10577, or (c) by email to email@example.com. Unless otherwise specified in these Terms, all notices to be provided to you in connection with these Terms or the Platform will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
Important Note to New Jersey Consumers
If you are a consumer residing in New Jersey, the following provisions of these Terms do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, punitive, special, exemplary, or consequential damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code, and New Jersey Consumer Fraud Act); (b) the limitation on liability for lost profits or loss or misuse of data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability, or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnify us (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) the governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).