SENDSMILES TERMS OF USE AGREEMENT

Effective Date: 03/16/2020

PLEASE READ THIS TERMS OF USE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“USER”) AND SENDSMILES, INC. (“SENDSMILES,” “COMPANY,” “WE,” OR “US”).

SECTION 12 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 12 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.

By accessing or using sendsmiles.com, or any other website with an authorized link to this Agreement (“Website”) , installing or using our mobile application (“App”), registering an account or accessing or using any content, information, services, features or resources available or enabled via the Website or App (collectively, the “Services”), or clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.

Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services (“Supplemental Terms”) which are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement.

Subject to Section 12.9 of this Agreement, SendSmiles reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
  1. Registration. When registering an account for the Services (“Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify SendSmiles immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account for the same SendSmiles service at any given time. SendSmiles reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of SendSmiles.

  2. Order Process.
    • 2.1 Order Acceptance. Each part of any order that you submit to SendSmiles constitutes an offer to purchase. If you do not receive a message from SendSmiles confirming receipt of your order, please contact our Customer Service department at care@sendsmiles.com before re-entering your order. SendSmiles’ confirmation of receipt of your order does not constitute SendSmiles’ acceptance of your order. SendSmiles is only deemed to have accepted your order once the product(s) you ordered have been shipped (the “Product”).

    • 2.2 Order Issues. Although we strive to accept all valid orders, SendSmiles reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute.

    • 2.3 Order Cancellation. If any Product is discontinued or otherwise becomes unavailable, SendSmiles reserves the right to cancel your order and provide you a refund for the amount paid for the Product.

    • 2.4 Restrictions on Resale. To protect the intellectual property rights of SendSmiles and its licensors and suppliers, any resale of Products for personal and/or business profit is strictly prohibited. SendSmiles reserves the right to decline any order that we deem to possess characteristics of reselling.

  3. Fees and Purchase Terms.
    • 3.1 Automatic Renewal of Subscriptions and Charges.All subscriptions will renew automatically until terminated in accordance with this Agreement. When you place a subscription order, you authorize SendSmiles to charge your valid credit or debit card (Visa, MasterCard, or any other issuer accepted by us) or other payment method we accept (“Payment Method”) immediately for the amount set forth on the order page plus applicable taxes for your initial subscription. By placing your subscription order, you also authorize us to charge your Payment Method again automatically at the beginning of each subsequent subscription renewal period (“Renewal Commencement Date”) at SendSmiles’ then-current price for such subscription plus applicable taxes. Each subsequent subscription renewal period will have the same duration as the initial subscription period you selected at the time of your initial order. Upon renewal of your subscription, if SendSmiles does not receive payment from your Payment Method, you agree that SendSmiles may (i) require you to pay all amounts due on your Account upon demand and/or continue to attempt to charge your Payment Method until payment is received and (ii) either terminate or suspend your subscription. If your Account is deactivated for nonpayment, and we subsequently reactivate your Account upon receipt of payment, for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription by 11:59 p.m. ET on the day prior to your next Renewal Commencement Date by contacting SendSmiles by email at care@sendsmiles.comand requesting cancellation. If you cancel your subscription, you may continue to use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. Your Renewal Commencement Date ordinarily will be synchronized with the day of the month on which you signed up for your initial subscription. For example, if you sign up for a monthly subscription on October 1st, your subscription would renew and your payment account would be charged immediately following the end of the 1st day of every subsequent calendar month until you cancel. If you sign up for a monthly subscription on the 31st day of a given month, your subscription would automatically renew and your account will be charged immediately following the end of the last day of each subsequent calendar month until you cancel (e.g., on November 30th, December 31st, January 31st, February 28th, etc.) If you wish to cancel your subscription before incurring a charge for your next scheduled subscription renewal period, you must do so no later than 11:59 p.m. Eastern time on the day before your next Renewal Commencement Date. If you are uncertain about your next scheduled Renewal Commencement Date, please email us at care@sendsmiles.com.

    • 3.2 Payment.You agree to pay for all orders made from your Account in accordance with the prices and billing terms in effect at the time an order is made from your Account. You also agree to pay all applicable taxes. To make an order through the Services, you must provide valid payment information. By providing your payment information, you agree that SendSmiles is authorized to immediately invoice your Account for all fees and charges due and payable to SendSmiles hereunder and that no additional notice or consent is required. You agree to immediately notify SendSmiles of any change in your billing address, debit card, credit card, or other relevant payment account information. SendSmiles uses Stripe, Inc. (“Stripe”) as a third-party service provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services). By using the Services, you hereby consent and authorize SendSmiles and Stripe to share any information and payment instructions you provide to complete your transactions. You agree to immediately notify SendSmiles of any change in your payment information by sending an email to care@sendsmiles.com. SendSmiles reserves the right at any time to change its prices and billing methods. Please contact care@sendsmiles.com regarding any billing disputes.

    • 3.3 Refunds. If you are dissatisfied with our Product(s), in accordance with our 100% Satisfaction Guarantee, you can contact us at care@sendsmiles.com within 30 days of receiving your order to receive a refund. Except as approved by SendSmiles in its sole discretion, subject to the 100% Satisfaction Guarantee, all fees paid are non-refundable.

    • 3.4 Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Unless otherwise expressly stated on the applicable Promo Code, Promo Codes may only be used once per person. Only Promo Codes sent to you through official SendSmiles communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use. Unless otherwise stated at the time of issuance, all Promo Codes are valid only for a single use and expire 180 days after issuance.

  4. Ownership of and License to Use Services.
    • 4.1 Use of the Services.SendSmiles and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, SendSmiles grants you a limited license to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. SendSmiles, its suppliers and service providers reserve all rights not granted in this Agreement.

    • 4.2 Trademarks.SendSmiles’ stylized name and other related graphics, logos, trademarks, service marks and trade names used on or in connection with the Services are the property of SendSmiles and may not be used without our written permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.

    • 4.3 Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to SendSmiles (“Feedback”) is at your own risk and that SendSmiles has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to SendSmiles the right to use any Feedback in any way at any time without any additional approval or compensation.

    • 4.4 Reviews. As part of the Services, you may be required to provide opinions, ratings, or reviews related to certain individuals within your professional network. You agree to provide your honest and accurate opinion when submitting any such opinion, rating, or review, and you will not submit any false, inaccurate, misleading, defamatory or libelous content in connection therewith. You agree that SendSmiles does not endorse, and is not liable for, such opinions, ratings, or reviews. SendSmiles shall have the right, but not the obligation to monitor or review any such opinions, ratings, or reviews at any time. SendSmiles reserves the right to refuse to post or remove any material submitted in any review. SendSmiles does not assume liability for reviews or for any claims for economic loss resulting from such ratings and reviews.

  5. Restrictions on Use of Services.The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or use framing techniques to enclose any trademark, service mark, logo or Services (including images, text, page layout or form) of SendSmiles; (c) you shall not use any metatags or other “hidden text” using SendSmiles’ name, service marks, or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Any unauthorized use of the Services terminates the licenses granted by SendSmiles pursuant to this Agreement.

  6. Third-Party Services.
    • 6.1 Third-Party Links.The Services may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. SendSmiles does not control and is not responsible for Third-Party Links. SendSmiles provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.

    • 6.2 App Stores.You acknowledge and agree that the availability of the App is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play Store (“App Store”). You acknowledge that this Agreement is between you and SendSmiles and not with the App Store. SendSmiles, not the App Store, is solely responsible for Services, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Services, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Services, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce them.

    • 6.3 Additional Terms for Apple Apps. With respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. In addition, the following terms apply to any App Store Sourced Application:
      • (a) You acknowledge and agree that (i) this Agreement is concluded between you and SendSmiles only, and not Apple, and (ii) SendSmiles, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

      • (b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

      • (c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between SendSmiles and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of SendSmiles.

      • (d) You and SendSmiles acknowledge that, as between SendSmiles and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.

      • (e) You and SendSmiles acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between SendSmiles and Apple, SendSmiles, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.

      • (f) You and SendSmiles acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

      • (g) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

    • 6.4 Additional Terms for Google Applications. The following applies to any App accessed through or downloaded from Google Play (a “Google Play Source Application”):
      • (a) You acknowledge and agree that (i) the Agreement is concluded between you and SendSmiles only, and not Google, Inc. (“Google”), and (ii) SendSmiles, not Google, is solely responsible for the Google Play Sourced Application and content thereof. Your use of the Google Play Sourced Application must comply with the Google Play Terms of Service.
      • (b) Google is only a provider of Google Play where you obtained the Google Play Sourced Application
      • (c) SendSmiles, and not Google, is solely responsible for its Google Play Sourced Application;
      • (d) Google has no obligation or liability to you with respect to SendSmiles’ Google Play Sourced Application or this Agreement; and
      • (e) You acknowledge and agree that Google is a third-party beneficiary to the Terms as it relates to SendSmiles’ Google Play Sourced Application.

  7. Indemnification. You agree to indemnify and hold SendSmiles, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “SendSmiles Indemnitees”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any claims concerning: (a) Your Content; (b) your misuse of the Services; (c) your violation of this Agreement; or (d) your violation of any applicable laws, rules or regulations. SendSmiles reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with SendSmiles in asserting any available defenses. This provision does not require you to indemnify any of the SendSmiles Indemnitees for any unconscionable commercial practice by such party or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Services.

  8. Disclaimer of Warranties and Conditions. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND ANY PRODUCTS OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SENDSMILES INDEMNITEES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM THE PRODUCTS AND SERVICES.
    DESCRIPTIONS, IMAGES, REFERENCES, FEATURES, CONTENT, SPECIFICATIONS, PRODUCTS, PRICES, AND AVAILABILITY OF ANY PRODUCTS ARE SUBJECT TO CHANGE WITHOUT NOTICE. OUR CURRENT PRICES CAN BE FOUND ON THE SERVICES. WE MAKE REASONABLE EFFORTS TO ACCURATELY DISPLAY THE ATTRIBUTES OF OUR PRODUCTS, INCLUDING THE APPLICABLE COLORS; HOWEVER, THE ACTUAL COLOR YOU SEE WILL DEPEND ON YOUR COMPUTER SYSTEM, AND WE CANNOT GUARANTEE THAT YOUR COMPUTER WILL ACCURATELY DISPLAY SUCH COLORS. THE INCLUSION OF ANY PRODUCTS ON THE SERVICES AT A PARTICULAR TIME DOES NOT IMPLY OR WARRANT THAT THESE PRODUCTS WILL BE AVAILABLE AT ANY TIME. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

  9. Limitation of Liability.
    • 9.1 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SENDSMILES INDEMNITEES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT SENDSMILES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    • 9.2 Cap on Liability.. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE SENDSMILES INDEMNITEES ARE LIABLE TO YOU EXCEED THE LESSER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO SENDSMILES BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES, OR (C) ONE HUNDRED DOLLARS ($100).

    • 9.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SENDSMILES AND YOU


  10. TerminationAt its sole discretion, SendSmiles may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, SendSmiles reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to SendSmiles for Products purchased will remain due. Upon termination of this Agreement, all provisions which by their nature are intended to survive termination will survive, including without limitation, Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13.

  11. International Users.The Services are controlled and offered by SendSmiles from its facilities in the United States of America. SendSmiles makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

  12. Dispute Resolution.Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with SendSmiles, its parent companies, subsidiaries, affiliates, successors and assigns and all of their respective officers, directors, employees, agents, and representatives (collectively, the “SendSmiles Parties”) and limits the manner in which you can seek relief from the SendSmiles Parties.
    • 12.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with SendSmiles, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or SendSmiles may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.

    • 12.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent [include name and address of registered agent here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/ . JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, SendSmiles will pay them for you. In addition, SendSmiles will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
      You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

    • 12.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and SendSmiles. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

    • 12.4 Waiver of Jury Trial.YOU AND SENDSMILES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and SendSmiles are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

    • 12.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the Commonwealth of Virginia. All other disputes, claims, or requests for relief shall be arbitrated.

    • 12.6 30-Day Right to Opt Out.You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: care@sendsmiles.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
    • 12.7 Severability Except as provided in subsection 12.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

    • 12.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with SendSmiles.

    • 12.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if SendSmiles makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing SendSmiles at the following address: [SendSmiles, Inc., 4212 Technology Court, Suite E, Chantilly, Virginia 20151].

  13. General Provisions.
    • 13.1 Electronic Communications.You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with SendSmiles, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or SendSmiles may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.

    • 13.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without SendSmiles’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

    • 13.3 Force Majeure.SendSmiles shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

    • 13.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact our customer service department using the contact information available on the Services. We will do our best to address your concerns.

    • 13.5 Exclusive Venue.To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and SendSmiles agree that all claims and disputes arising out of or relating to this Agreement that are not brought in a small claims court pursuant to Section 12.1 will be litigated exclusively in the state or federal courts in Fairfax County, Virginia.

    • 13.6 Governing Law.THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE COMMONWEALTH OF VIRGINIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
    • 13.7 Notice Where SendSmiles requires that you provide an e-mail address, you are responsible for providing SendSmiles with your most current e-mail address. In the event that the last e-mail address you provided to SendSmiles is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, SendSmiles’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to SendSmiles at the following address: [SendSmiles, Inc., 4212 Technology Court, Suite E, Chantilly, Virginia 20151]. Such notice shall be deemed given when received by SendSmiles by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

    • 13.8 Waiver.Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

    • 13.9 Severability. Subject to Section 12.5, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

    • 13.10 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law

    • 13.11 Export Control. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
    • 13.12 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

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