Last Updated 11/30/16
These Terms and Conditions govern your use of this website, your relationship with us, and any orders you submit and any purchase you make through this website. Please read them carefully. This website is provided to you by SmileMakers, Inc. (“SmileMakers”, “us”, “we” or “our”). By accessing and using this website and/or submitting an order through this website you agree to be bound by these Terms and Conditions whether or not you have read them. SmileMakers may in its sole discretion modify these Terms and Conditions and such modifications will be effective immediately upon being posted to this website for any subsequent use or order. If you do not agree to these Terms and Conditions, or any modifications made to them, do not access or use this website.
Please read our privacy policies. They also govern your use of this website and our use of information and data. By submitting an order through this website you consent to the collection, use and disclosure of your personal information in accordance with the terms of these privacy policies.
To the extent permitted by law or with your consent, we may use the email address you provide for our own promotional email marketing and customer communications. You can opt out of receiving promotional emails anytime. Instructions on how to opt out are included in every promotional email or you may choose to opt out here. You agree that all notices, disclosures, agreements or other communications we provide electronically satisfy any legal requirement that such communication be in writing.
SMILEMAKERS®, and other marks indicated on our site are trademarks of SmileMakers, Inc. All content on this website, including, without limitation, the text, graphics, website design, icons, and images, is the property of or licensed to SmileMakers, Inc. and SmileMakers, Inc. owns or licenses the copyrights and trade dress rights in the content, the selection, arrangement and compilation thereof. SmileMakers, Inc. grants you a limited license to make personal use of this website. The license permits you to download and save a single copy of pages on this website for your own personal and non-commercial use, but any other reproduction, copying, modification, redistribution, or republication of any of the content of this website in any manner without the express written consent of SmileMakers, Inc. is strictly prohibited. You are also prohibited from using this website or any content for any resale or commercial purpose or any exploitation of any part of the content of this website for the benefit of any other merchant.
Acceptance and Delivery of Orders
All advertisements on this website are invitations to purchase and not offers to sell. All products are subject to availability. All orders submitted by you to smilemakers.com or smilemakerscanada.com constitute offers to purchase which are subject to acceptance or rejection by us in Spartanburg, South Carolina. Our acceptance of any order from you is expressly conditional upon your assent to these Terms and Conditions and we expressly limit our acceptance of your order to such terms. Any additional or different terms proposed by you in any manner are expressly rejected. We will not be responsible for any delay in performance beyond our reasonable control or beyond the control of our suppliers. You agree that shipping and delivery dates are approximate and that time is not of the essence.
This website is intended for use by users in Canada. We will ship the products purchased by you on this website to the Canadian shipping address you provide to us via the method selected during the order process.
Payment of the amount set out as the “TOTAL” in your check-out screen (the “Fee”) shall be due and payable at the time you submit your order unless otherwise specified at check-out and orders will not be shipped unless payment or confirmation of payment is received in advance. The Fee is quoted in Canadian dollars and includes shipping and handling and all applicable taxes that you are responsible for paying. If, for any reason, you have a past due balance remaining unpaid, it will be subject to a delinquency charge at the maximum rate permitted by law, and you agree to pay all our costs of collection of past due amounts including, but not limited to, attorney fees and court costs.
Payment may be made using credit cards (Visa, MasterCard or American Express). You authorize SmikeMakers (and our designated payment processor) to charge the applicable card. If your card is rejected by the card issuer, your order will not be shipped and SmileMakers will have no obligation to process your order.
Claims and Risk of Loss
For any merchandise which is defective in workmanship and for which you make a claim within five (5) days after receipt of the merchandise (or such longer period as provided by applicable law), we will elect to either repair, replace, or refund the purchase price. When making such a claim, you must submit both the original packing slip and the defective merchandise itself (or a sample thereof), unless these conditions are waived by us in writing. (The remainder of this paragraph is not applicable to consumers residing in Quebec) This paragraph constitutes our sole obligation as to the merchandise, and you acknowledge that this paragraph sets forth your exclusive remedy for any breach of warranty or other duty related to the merchandise or quality thereof. Any refund for merchandise shall not include shipping and handling or other fees. At our discretion, we may charge a restocking fee, not to exceed twenty-five percent (25%) of the purchase price for returned merchandise. Title to the merchandise passes at and you bear all risk of loss from the time the merchandise is loaded onto common carrier to be shipped to you, regardless of whether you pay freight.
Disclaimer, Exclusion of Warranties
(This first paragraph of Section 7 is not applicable to consumers residing in Quebec)
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE PRODUCTS PROVIDED ON THIS WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT WE MAKE NO OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, OR WITH RESPECT TO ANY APPROVALS, CHARACTERISTICS, INGREDIENTS, BENEFITS, USES, STANDARDS, QUALITY OR GRADE OF ANY MERCHANDISE, OR ARISING BY COURSE OF DEALING, CUSTOM OR TRADE USAGE AND, SPECIFICALLY, MAKE NO WARRANTY, REPRESENTATION OR CONDITION OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR INFRINGEMENT OF THIRD PARTY RIGHTS AND ANY WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE MERCHANDISE ARE HEREBY SUPERCEDED, EXCLUDED AND DISCLAIMED. THE EXPRESS WARRANTY CONTAINED IN PARAGRAPH 6 HEREIN CONSTITUTES THE SOLE AND EXCLUSIVE WARRANTY MADE BY US AND IS IN LIEU OF ALL OTHER WARRANTIES. YOU UNDERSTAND AND AGREE THAT THE PRODUCTS DISPLAYED ON THIS WEBSITE MAY NOT REFLECT ACTUAL PACKAGING.
(This second paragraph of Section 7 is not applicable to consumers residing in Quebec)
IN NO EVENT SHALL WE, OR ANY OF OUR SUPPLIERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, ADVERTISERS, MANDATARIES AND LICENSORS, BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS WEBSITE, ANY PRODUCT PURCHASED USING THIS WEBSITE, OR YOUR ACCESS OR USE OF THIS WEBSITE, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF THE SAME IN ADVANCE. OUR AGGREGATE LIABILITY IN ANY EVENT IS LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU.
YOU ACKNOWLEDGE THAT YOU WILL BE FULLY LIABLE FOR ALL DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THIS WEBSITE AND YOUR MATERIALS. SMILEMAKERS SHALL NOT BE RESPONSIBLE FOR YOUR MATERIALS OR THE MATERIALS OF ANY OTHER USERS SUBMITTED TO THIS WEBSITE.
Product Descriptions, Price and Availability
We will periodically add, change, modify and update this website, including without limitation these Terms and Conditions, the privacy policies, product descriptions and prices. We try to be as accurate as possible, but we make no warranties or representations that (a) the content, including product descriptions, prices and depictions, are accurate, complete, reliable, current or error-free, (b) any merchandise has any particular approvals, certifications, characteristics, uses, ingredients, or benefits, or (c) any merchandise is of or meets any particular standard, certification, quality or grade. (The remainder of this paragraph is not applicable to consumers residing in Quebec) We assume no liability with respect to any of the foregoing.
Non-waiver of Default
Each shipment made under any order submitted by you on this website will be treated as a separate transaction, but we reserve the right to decline to make further shipments or accept further orders without in any way affecting our rights under any order. If, despite your default, we elect to continue to make shipments, or accept further orders from you, such action(s) shall not constitute a waiver of any default, or in any way affect our legal or equitable remedies for any such default, or of any default at any prior or subsequent time.
No amendment, modification or addition to these Terms and Conditions shall be binding unless expressly agreed to in a writing signed by us.
(Not applicable to consumers residing in Quebec) In the event of any dispute concerning the use of this website or any order placed on this website, you consent to and agree that, to the fullest extent permitted by applicable law, any state or federal court in Spartanburg County, South Carolina shall have personal and subject matter jurisdiction over you and this Agreement; that South Carolina has the most significant contacts with the use of this website, to the exclusion of any other state; and that any legal dispute brought by either of us relating to the use of this website will be instituted exclusively in Spartanburg County, South Carolina. You agree that, to the fullest extent permitted by applicable law, all claims, disputes or controversies shall be resolved individually and not as part of any class action or class arbitration and the right to commence or participate in any class proceedings is specifically waived by you.
If your order includes personalization of product or the printing or other reproduction of trademarks, service marks, trade names, logos, messages or business symbols (“Marks”), you grant to us the non-exclusive right and license to use such Marks on the products and to cause the products to be produced with the Marks. You further grant permission and consent to our use of a photograph or other likeness of the finished products for purposes of advertising or promoting our business relating to such personalization production work and merchandise sales. We shall have no right, title or other interest in the Marks. You represent and warrant that you own the Marks and/or are authorized to license the Marks to us. You agree to indemnify and hold us harmless from any loss, liability, damage, claims, demands, actions, costs or expense of any nature (including attorney fees) arising out of or in any manner connected with your or our use of the Marks. We reserve the right to reject or rescind any order for personalized product in our sole discretion.
Compliance with Laws and Indemnification
You agree to provide us with written notice prior to placing any order if you intend to distribute any product you purchase from us into the state of California and you acknowledge and agree that any such distribution of product into the state of California may require appropriate Proposition 65 (Title 22 of the California Code of Regulations) warning labels. If you fail to provide such notice or fail to provide appropriate Proposition 65 warnings and distribute any product into the state of California, you agree to indemnify, defend and hold us harmless from and against any and all costs, damages, liability and expenses (including attorney fees) arising out of any alleged Proposition 65 violations. In addition, if you intend to resell, distribute or export any product, you agree to bear all responsibility for compliance with the laws, rules and regulations of the jurisdiction in which the product is resold or to which the product is distributed or exported, and you agree to indemnify, defend and hold harmless SmileMakers, Inc. and its affiliates from and against any and all costs, damages, liability, fines, penalties and expenses (including attorney fees) arising out of any such resale, distribution or exportation.
This website may contain links or references to third party websites. These links are provided for your convenience only. No endorsement of any third party products, services or information is expressed or implied by any information, material or content of any third party contained in, referred to, included on, or linked from or to this website. Any information, data, opinions, recommendation, products or services provided by such third parties through links to other websites or otherwise made available through their websites are solely those of such third parties and not of SmileMakers or its affiliates. Your use of such third party websites is subject to the terms and conditions of use and the privacy policies of such websites.
(A) Your use of this website will be in compliance with all applicable laws and regulations. You will not: (a) use this website to transmit unauthorized or unsolicited promotional materials, (b) use this website to misrepresent an affiliation with any entity, (c) use this website to send harassing, offensive, inappropriate or threatening messages; (d) use this website to transmit viruses or other disabling mechanisms; (e) use this website in violation of the privacy rights of others; (f) attempt to penetrate security measures of this website; or (g) post or transmit content that is unlawful, obscene, tortuous, libelous, infringes or violates any proprietary rights of any person.
(B) You acknowledge and agree that you are solely responsible for your account and the security of your password relating to such account and that you will not disclose it to any third parties. In addition, you will promptly advise SmileMakers of any unauthorized use of your password and are liable for losses and damages incurred by SmileMakers due to the unauthorized use of your account.
You may from time to time post information, materials, ideas, opinions, concepts, reviews, votes, know-how, techniques, creative ideas or any content (collectively “Your Material”) on this website or transmit Your Materials to SmileMakers through this website. You understand and agree that SmileMakers may, at its sole discretion, decide not to post Your Materials on this website or make modifications to Your Materials prior to posting it. You further understand and agree that SmileMakers assumes no responsibility for reviewing unsolicited ideas for its business (like product or advertising ideas) and will not incur any liability as a result of any similarities between your ideas and/or Your Materials and future SmileMakers products or programs. This means that SmileMakers has no obligation to treat Your Materials confidentially. You hereby grant to SmileMakers a worldwide, irrevocable, royalty-free, perpetual license to use, produce, reproduce, create derivative works from, modify, adapt, publish, translate, display, distribute, perform, broadcast, communicate to the public by telecommunication or circulate Your Materials, in whole or in part, and to sub-license any such rights. You hereby waive all moral rights that you may have in Your Materials. Your Materials may be used by SmileMakers now or in the future without any payment to or further authorization by you. You represent and warrant that you are the author of Your Materials and that they do not infringe the intellectual property or other proprietary rights of any third party.
You agree to indemnify and hold harmless SmileMakers and its affiliates and their respective directors, officers, employees, agents, mandataries or other representatives from and against all claims, liability, damages and expenses, including without limitation all legal fees and costs arising from or relating to (a) your breach of these Terms and Conditions; and (b) your use of this website including without limitation transmission or placement of information or material by you on this website; and (c) any claim or allegation that Your Materials infringe the intellectual property or other proprietary rights of any third party.
SmileMakers may at any time and in its sole discretion restrict or terminate your right to use this website.
If you are purchasing merchandise for delivery or importation to a country other than Canada, you are solely responsible for and will comply with all applicable laws, rules, regulations, and treaties of Canada and the jurisdiction of the destination of the merchandise in connection with the transportation, exportation, importation, delivery, distribution and resale of the merchandise. You are also solely responsible for and shall obtain all certifications, declarations, accreditations, registrations, tests, licenses, permits, inspections, or similar requirements of any jurisdiction of the destination of the merchandise and shall bear all costs and expenses related thereto and you shall bear all costs and expenses relating to any taxes, duties, levees, or assessments associated with the transportation, exportation, and importation of the merchandise. We make no representations or warranties with respect to the foregoing or that the merchandise is suitable for or will comply with applicable laws of any jurisdiction.
Content and Licensed Merchandise
Unless otherwise noted, all materials, including, but not limited to names, logos, images, text, illustrations, designs, icons, photographs, characters, video clips and written and other materials that appear on this site (collectively, the “Contents”) are copyrights, trademarks, and/or other intellectual property owned, controlled or licensed by us, one of our affiliates or by third parties who have licensed their materials to us, and are protected by United States. and international copyright laws. You may not reuse, reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale or exploit in any manner, in whole or in part, any of the Contents. Merchandise containing or incorporating Contents licensed to us from a third-party may only be sold within the United States or Canada and if you intend to resell such licensed merchandise, you must sell the merchandise solely within the United States or Canada and not advertise or maintain stock of any of the merchandise outside of the United States or Canada. Licensed merchandise is warranted to consumers to be merchantable and fit for the purpose intended.
How to Contact SmileMakers.
We are located at:
91 Station Street Unit 4
Ajax, Ontario L1S 3H2
You can also reach us at:
Phone: 1.888.456.SMILE (7645)
Fax: 1.877.567.SMILE (7645)