Terms of Service
Terms of Service and Sale
These Terms of Service and Sale (these “Terms”) are agreed to between enCore Laboratory, LLC dba enCore Guards, and its affiliates and subsidiaries (collectively, “enCore”) and the individual or entity (such individual or entity “You”, and “Your”) that accesses or uses enCore’s website at https://encoreguards.com/, any product registration website or portal operated by or on behalf of enCore, and any other websites, mobile applications, or online services operated or made available by or on behalf of enCore (collectively, the “Website”); purchases any of enCore’s customized dental night guards, impression kits, or related products (collectively, the “Product(s)”); or registers any Product on the Website, whether purchased directly from enCore or through a third-party marketplace or otherwise.
PLEASE CAREFULLY READ THESE TERMS. YOUR ACCESS TO AND USE OF THE WEBSITE AND PRODUCTS ARE SUBJECT TO THESE TERMS. BY clicking a button (e.g., “i accept”) indicating THAT you agree to these terms when ordering a product directly from encore or registering a product (including any product purchased through a third-party website or marketplace), YOU acknowledge THAT YOU HAVE READ AND AGREE TO BE BOUND BY these Terms (INCLUDING ANY POLICIES INCORPORATED HEREIN BY REFERENCE). IF YOU DO NOT AGREE to these terms OR DO NOT MEET THE QUALIFICATIONS INCLUDED herein, enCore IS NOT WILLING TO PROVIDE YOU WITH THE PRODUCT(S) AND YOU MUST NOT ACCESS OR USE THE website or product(s).
You are responsible for compliance with these Terms. These Terms contain the complete and exclusive agreement between You and enCore regarding the subject matter hereof. These Terms supersede any prior agreement or proposal, oral or written, and any other communications between You and enCore relating to the subject matter hereof.
ARBITRATION NOTICE. SECTION 12 OF THESE TERMS CONTAINS PROVISIONS GOVERNING HOW DISPUTES BETWEEN YOU AND ENCORE ARE RESOLVED. WITH LIMITED EXCEPTIONS, THE ARBITRATION AGREEMENT IN SECTION 12 REQUIRES DISPUTES BETWEEN YOU AND ENCORE TO BE RESOLVED THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. BY ACCEPTING THESE TERMS, YOU AND ENCORE EACH WAIVE THE RIGHT TO A JURY TRIAL AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING. PLEASE REVIEW SECTION 12 CAREFULLY.
IF YOU PURCHASE A SUBSCRIPTION (DEFINED BELOW), YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AND CONTINUE ON A RECURRING, CONTINUOUS BASIS AT THE THEN-CURRENT PRICE FOR SUCH SUBSCRIPTION UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 5(h)(iii) BELOW.
You acknowledge and agree that (i) enCore does not provide medical or dental care or advice; (ii) the Website does not (and is not intended to) provide any medical or dental care or advice; and (iii) the Products are not a substitute for professional dental care. If you require or wish to receive medical or dental care or advice, please contact a dentist or other licensed medical care provider.
1. Definitions. Capitalized terms used in these Terms have the definitions given to them in these Terms.
2. Reservation of Rights. To the extent permitted by applicable law, enCore reserves the right, in its sole discretion, to refuse service, reject or cancel any order, or decline to manufacture or sell any Product. If enCore cancels an order after payment has been processed, enCore will issue a refund in accordance with these Terms, the Refund Policy (as defined below), or applicable law.
3. Modifications. enCore may, at any time, modify, suspend, or discontinue the Website or modify its Product(s), with or without notice to You. enCore also reserves the right, at any time, to modify these Terms. When changes are made to these Terms, enCore will post the revised Terms on the Website and update the “Last Updated” date above. enCore will inform You of any material changes to these Terms by providing You with notice through the Website or by other reasonable means. Except as otherwise provided in these Terms, revised Terms will be effective when posted, and will apply prospectively to Your access to and use of the Website and to Products ordered or registered after the revised Terms become effective. Revised Terms will not retroactively alter the terms applicable to a Product ordered or registered before their effective date. You acknowledge and agree that Your continued use of the Website after the revised Terms become effective constitutes Your acceptance of the revised Terms. Changes affecting a Subscription will be made in accordance with Section 5(h) and applicable law. If You do not agree to the revised Terms, You must stop using the Website and may not order or register additional Products.
4. Eligibility. The Website and Product(s) are intended for use by individuals 18 years of age and older, and You must be at least 18 years old to order or register a Product or accept these Terms on Your own behalf. If a Product is intended for use by an individual under 18, the individual’s parent or legal guardian must order or register the Product, accept these Terms on the individual’s behalf to the extent permitted by applicable law, supervise the individual’s use of the Product, and assume responsibility for such use. enCore does not recommend or endorse the use of rigid guards (hard or hybrid materials) by individuals under 18 or individuals whose teeth or oral structures are still growing or developing because such use may adversely affect oral development. For individuals under 18, enCore recommends a soft guard rather than a rigid guard. If enCore learns that a Product is intended for use by an individual under 18, enCore may request additional information, decline to manufacture or provide the Product, offer an alternative Product, or issue a refund in accordance with these Terms and the Refund Policy. To the fullest extent permitted by applicable law, if any rigid guard ordered or registered by You is used by an individual under 18, You assume the risks associated with such use and release enCore from claims arising from such use, except to the extent such liability cannot be waived under applicable law.
5. Sales Terms and Conditions.
a. Delivery. The Product(s) will be shipped within a reasonable time after enCore’s receipt of full payment for the Product(s); provided that the manufacture and shipment of any finished customized Product is contingent upon enCore’s receipt and approval of all required registration information, screening responses, photographs, and impressions. All shipments will be made in accordance with enCore’s Shipping Policy, available at: https://encoreguards.com/pages/shipping-policy (the “Shipping Policy”), which is incorporated herein by reference. Any shipping or delivery dates are estimates only. You acknowledge and agree that delays in providing any required information to enCore or unusable impressions may delay production and shipment of the Product(s). enCore ships Products only within the United States. You are responsible for any applicable shipping and handling charges disclosed to You at the time of purchase, except as otherwise stated on the Website or in the Shipping Policy or Refund Policy. To the fullest extent permitted by applicable law, enCore is not responsible for any carrier delays or any loss of or damage to the Product(s) while in transit, and risk of loss passes to You when enCore delivers the applicable shipment to the carrier. If a shipment of Product(s) is lost or damaged, You should contact enCore, and enCore may, in its sole discretion, replace such shipment at no additional charge to You, subject to reasonable verification and cooperation with any carrier investigation. enCore is not responsible for loss occurring after confirmed delivery or resulting from Your acts or omissions, including an incorrect address provided by You, except as required by applicable law. For Product(s) purchased through Amazon or another third-party marketplace, the applicable marketplace’s terms govern shipments of the initial Product(s) kit to make such impressions and any returns or refunds administered by that marketplace.
b. Your Information; Account Security. You agree to provide current, complete, and accurate purchase, registration, and account information in connection with Your use of the Website and purchase or registration of any Product. You agree to promptly update such information as reasonably necessary for enCore to process or fulfill Your order, administer any Subscription, or contact You as needed. You are responsible for maintaining the confidentiality and security of Your account login information and for activity occurring through Your account. enCore will not be deemed in breach of these Terms or responsible for any delay, inability to fulfill an order, or resulting loss to the extent caused by inaccurate, incomplete, or outdated information provided by You, Your failure to timely provide any required information or materials, or any other act or omission by You.
c. Price. For each Product purchased through the Website, You shall pay the price set forth on the Website at the time You submit Your order (the “Price”), together with any applicable shipping and handling charges disclosed at the time of purchase. enCore may modify the prices displayed on the Website at any time in enCore’s sole discretion, but any such modification will not affect an order accepted before the modified price was displayed. Unless otherwise stated on the Website, the Price is exclusive of, and You shall pay, all applicable sales, use, excise, and similar taxes, duties, and governmental charges of any kind imposed on any amounts payable by You (except for taxes imposed on enCore’s income, revenues, gross receipts, personal or real property, or other assets). enCore may use third-party payment processors to process payments. Your payment transaction may be subject to the applicable payment processor’s terms and privacy policy, and You authorize enCore and its payment processors to process and share the payment and transaction information reasonably necessary to complete Your purchase and administer any Subscription. For any Product purchased through Amazon or another third-party marketplace, the price and any applicable shipping charges, taxes, fees, and payment terms will be as displayed by the applicable marketplace at the time of purchase.
d. Limited Warranty; Disclaimers; Exclusive Remedy. enCore warrants to You that each finished customized dental night guard (each, a “Guard”) will, for six (6) months after delivery to You, be free from material defects in materials and workmanship under normal, intended use. This limited warranty does not cover loss, misuse, improper care or storage, unauthorized alteration or repair, failure to follow enCore’s instructions, inaccurate or incomplete information provided by You (other than impression-related issues, which are addressed below), or changes to Your teeth, bite, dental work, or oral condition. Unless otherwise expressly stated by enCore at the time of purchase, this limited warranty applies only to Guards and does not apply to any other Product. In addition, subject to the applicable exclusions above, if a Guard breaks due to normal wear within six (6) months after delivery to You, enCore will provide one replacement Guard of equivalent value at no additional charge.
For a valid claim for a defect in materials or workmanship under this limited warranty, enCore’s sole obligation and Your exclusive remedy will be, at enCore’s option, to adjust or repair the applicable Guard, provide one replacement Guard of equivalent value at no additional charge, or issue a refund in accordance with the Refund Policy. For a valid claim for a defect in materials or workmanship under this limited warranty, enCore’s sole obligation and Your exclusive remedy will be, at enCore’s option, to adjust or repair the applicable Guard, provide one replacement Guard of equivalent value at no additional charge, or issue a refund in accordance with the Refund Policy. For breakage resulting from normal wear, enCore will provide the replacement described above. The six (6)-month limited warranty provides for a maximum of one replacement Guard in total, whether for a defect in materials or workmanship or breakage resulting from normal wear. Any replacement Guard provided under that warranty will not be covered by an additional warranty.
Any request for an adjustment based on the fit or function of a Guard must be made within thirty (30) days after delivery of the Guard. enCore will review each such request individually and determine the appropriate solution in its sole discretion, which may include repairing or adjusting the Guard, or both. If enCore determines that the issue is related to the accuracy of the impression used to manufacture the Guard, enCore will provide a new impression kit and manufacture a new Guard at no additional charge. A remake provided through this fit or function resolution process does not count toward the one-replacement limit under the six-month limited warranty. You may request a refund at any time during the resolution of a timely submitted fit or function request, subject to the applicable return requirements and deductions described in the Refund Policy.
enCore reserves the right to determine in its sole discretion whether the Product(s) are appropriate for You upon receipt of all required registration information, screening responses, photographs, and impressions. In the event that enCore determines that the Product(s) are not appropriate for You in its sole discretion, enCore may provide a full refund in accordance with the Refund Policy, and You acknowledge and agree that enCore will have no further liability for such Product(s). Upon such determination, You agree that You shall return the Product(s) and will not use the Product(s) further upon notice of such determination by enCore. Any commitments made by enCore, and remedies available to You, with respect to the Product(s) are limited to those set forth in these Terms and in enCore’s Refund Policy, available at: https://encoreguards.com/pages/refund-policy, which is incorporated into these Terms by reference (the “Refund Policy”). Except as set forth in the Refund Policy, all purchases are non-refundable and non-returnable.
NOTWITHSTANDING THE FOREGOING, ENCORE MAY DENY ANY WARRANTY CLAIM, ADJUSTMENT, REPLACEMENT, OR REFUND TO THE EXTENT: (I) ANY PRODUCT DEFECT ARISES BECAUSE YOU FAILED TO FOLLOW ENCORE'S INSTRUCTIONS AS TO THE STORAGE, USE, OR MAINTENANCE OF THE PRODUCT; (II) YOU ALTER OR REPAIR, OR ATTEMPT TO ALTER OR REPAIR, THE PRODUCT WITHOUT THE PRIOR WRITTEN CONSENT OF ENCORE; OR (III) THE APPLICABLE CLAIM, ADJUSTMENT, REPLACEMENT, OR RETURN PERIOD HAS EXPIRED.
e. ASSUMPTION OF RISK; DENTAL WARNINGS; AND RELEASE. ENCORE RECOMMENDS THAT YOU CONSULT WITH A LICENSED DENTIST BEFORE PURCHASING OR USING ANY PRODUCT. BY PURCHASING OR USING A PRODUCT, YOU HEREBY ACKNOWLEDGE THAT YOU HAVE HAD THE OPPORTUNITY TO CONSULT WITH A LICENSED DENTIST, REGARDLESS OF WHETHER YOU ACTUALLY DID SO. YOU FURTHER ACKNOWLEDGE AND AGREE THAT NEITHER ENCORE NOR ITS EMPLOYEES OR AGENTS PROVIDE MEDICAL OR DENTAL CARE OR ADVICE IN CONNECTION WITH THE PRODUCT(S) AND ARE NOT ACTING AS MEDICAL OR DENTAL PROFESSIONALS. THE PRODUCT(S) ARE NOT A SUBSTITUTE FOR PROFESSIONAL DENTAL CARE. IF YOU EXPERIENCE ANY ISSUE WITH A PRODUCT, INCLUDING, WITHOUT LIMITATION, BREAKAGE OF A PRODUCT, OR IMPROPER FITTING OF THE PRODUCT(S), YOU MUST DISCONTINUE USE IMMEDIATELY AND CONSULT WITH A LICENSED DENTIST OR OTHER QUALIFIED DENTAL PROFESSIONAL.
YOU ACKNOWLEDGE AND AGREE THAT ENCORE WILL NOT BE RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF ANY DENTISTS OR OTHER DENTAL PROFESSIONALS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND ASSUME THE RISKS DESCRIBED IN THIS SECTION AND OTHER RISKS THAT ARE INHERENT IN OR REASONABLY ASSOCIATED WITH TAKING A DENTAL IMPRESSION OR USING A PRODUCT. YOU HEREBY WAIVE AND RELEASE CLAIMS AGAINST ENCORE AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS ARISING FROM: (I) THE RISKS DESCRIBED IN THIS SECTION THAT ARE INHERENT IN OR REASONABLY ASSOCIATED WITH TAKING A DENTAL IMPRESSION OR USING A PRODUCT; OR (II) YOUR MISUSE OF A PRODUCT OR USE OF A PRODUCT CONTRARY TO ENCORE’S INSTRUCTIONS. THE FOREGOING WAIVER AND RELEASE DOES NOT LIMIT THE REMEDIES EXPRESSLY PROVIDED UNDER SECTION 5(d), APPLY TO THE EXTENT A CLAIM RESULTS FROM ENCORE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR APPLY TO THE EXTENT A CLAIM OR LIABILITY CANNOT BE WAIVED UNDER APPLICABLE LAW.
YOU ACKNOWLEDGE THAT TAKING A DENTAL IMPRESSION AND USING A PRODUCT MAY INVOLVE RISKS, INCLUDING PAIN OR DISCOMFORT; CHANGES TO YOUR BITE OR OCCLUSION; ASPIRATION; AND DAMAGE TO OR DISLODGEMENT OF TEETH, FILLINGS, CROWNS, VENEERS, IMPLANTS, OR OTHER DENTAL WORK. If You have any significant dental work, including, without limitation, fillings, crowns, veneers, or implants; loose fillings or loose teeth; persistent jaw or neck pain; or A diagnosIS OF temporomandibular joint dysfunction, you should consult WITH a licensed dentist before purchasing or using a Product. If you notice any discomfort or changes to your bite or occlusion after using a Product, discontinue use IMMEDIATELY and consult a licensed dentist. Do not use A Product as a sports mouth guard or retainer because THE PRODUCT IS NOT INTENDED FOR those USEs, AND SUCH USE may CAUSE PERMANENT DAMAGE OR UNINTENDED CHANGES TO YOUR BITE. Products may be used by individuals under 18 only as provided in section 4. encore does not recommend the use of a rigid guard by any indiVIDual under 18 or anyone whose teeth or oral structures are still growing or developing. a product should not be used by anyone at risk of aspirating the Product. The Products are not intended for users with braces or dentures.
If any changes to your teeth, mouth, bite, or dental work occur after a product is manufactured, it is your responsibility to determine, in consultation with a licensed dentist, whether You can safely continue using the Product. if a product has expired, do not use it and please contact us immediately.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5(d), ENCORE MAKES NO OTHER EXPRESS WARRANTY WITH RESPECT TO THE PRODUCT(S). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ENCORE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO ANY PRODUCT OTHER THAN A GUARD, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITH RESPECT TO A GUARD, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO THE SIX-MONTH LIMITED-WARRANTY PERIOD SET FORTH IN SECTION 5(d). THE REMEDIES SET FORTH IN SECTION 5(d) AND THE REFUND POLICY WILL BE YOUR SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO THE PRODUCT(S).
f. Permitted Use; Compliance with Law. You shall use the Product(s) only for their intended purposes and in accordance with enCore’s instructions and applicable law. You shall not use any Product for an unlawful purpose or in any manner reasonably likely to harm You or any other person.
g. No Resale. You may purchase, register, and use the Products only for Your own personal, non-commercial use, except that a parent or legal guardian may purchase and register a Product for an individual under 18 as expressly permitted under Section 4. You may not resell or redistribute the Products. You may purchase Product(s) only through enCore’s Website, enCore’s authorized Amazon storefront (or other third-party marketplace storefront), or another sales channel expressly authorized by enCore. To the extent permitted by applicable law, enCore may decline to register, manufacture, adjust, replace, or provide warranty support for any Product purchased from an unauthorized seller or associated with an order or intended user that enCore cannot reasonably verify. If enCore reasonably suspects that a Product has been resold or redistributed in violation of these Terms, then, upon enCore’s request, You shall promptly provide any information reasonably necessary to verify Your identity, the identity of any minor intended user permitted under Section 4, and the applicable order.
h. Subscriptions.
i. Subscriptions. enCore may offer one or more Products to You on a recurring subscription basis (each, a “Subscription”). The specific terms of each Subscription, including the Products included, the frequency of recurring shipments, the recurring price, and any applicable shipping and handling charges and taxes, will be disclosed to You when You enroll in the Subscription (the “Subscription Offer”). To purchase a Subscription, You must provide a valid credit card, debit card, online payment account, or other payment method accepted by enCore (Your “Payment Method”). You may purchase a Subscription through the Website by selecting the applicable subscription option for a Product, choosing the frequency of recurring Product delivery (Your “Delivery Schedule”), and submitting Your order. You will be billed in advance on a recurring and periodic basis for the applicable Subscription price and any applicable taxes and shipping and handling charges (each, a “Billing Cycle”). Unless otherwise specified in the applicable Subscription Offer, each Billing Cycle will correspond to Your Delivery Schedule. Your Subscription Offer will disclose the Products included in the Subscription, Your Delivery Schedule, the frequency and timing of reoccurring charges, the recurring Subscription price, and any applicable shipping and handling charges and taxes. If enCore or its third-party payment processor does not receive payment upon any renewal of Your Subscription: (a) You agree to pay all amounts due in connection with Your Subscription upon demand; and (b) enCore may suspend or cancel Your Subscription and continue attempting to charge Your Payment Method until payment is received. Upon receipt of payment, enCore may reactivate Your Subscription, and Your next Billing Cycle will begin on the date payment is received.
ii. Automatic Renewal; Continuous Service. Your Subscription will continue until You cancel the Subscription. To the extent permitted by applicable law, Your Subscription will automatically renew and continue on a recurring, continuous basis under the same terms and at enCore’s then-current price for the Subscription unless and until You cancel Your Subscription in accordance with Section 5(h)(iii) (Cancellation) below. You agree that Your account on the Website will be subject to this automatic-renewal and continuous-service feature unless You cancel Your Subscription. Your Payment Method will be charged at the beginning of each Billing Cycle. You hereby authorize enCore and its third-party payment processors to store Your Payment Method and automatically charge Your Payment Method at such time. To cancel a Subscription, follow the cancellation instructions in Section 5(h)(iii) (Cancellation) below.
By purchasing a Subscription, You acknowledge that Your Subscription:
· is subject to automatic renewal and continuous service;
· will automatically continue for successive periods until You cancel Your Subscription in accordance with Section 5(h)(iii);
· has an initial and recurring payment feature, and You accept responsibility for all recurring charges incurred before cancellation of Your Subscription;
· is subject to automatic charges to Your Payment Method; and
· includes recurring Product shipments:
o that will automatically be processed and shipped in accordance with Your Delivery Schedule until You cancel Your Subscription; and
o for which Your Payment Method will automatically be charged at the then-current price for each successive shipment until You cancel Your Subscription or change Your Product selection, in each case in accordance with Section 5(h)(iii).
iii. Cancellation. Subject to this Section 5(h), You may cancel a Subscription by (a) logging into Your account on the Website, accessing the applicable Subscription, and selecting “Cancel” for the applicable Subscription or (b) contacting enCore at support@encoreguards.com. Your Subscription will not automatically continue or otherwise renew after Your cancellation becomes effective. If You have multiple Subscriptions, You must cancel each Subscription individually. Cancellations apply prospectively and must be completed before enCore processes the next scheduled Product shipment to avoid being charged for that shipment. Except as otherwise provided in the Refund Policy or required by applicable law, charges incurred before cancellation are nonrefundable. If You cancel Your Subscription before the end of Your first Subscription period, Your purchase will be treated as a one-time purchase, and enCore may charge Your Payment Method the difference between the Subscription price You paid and the then-applicable price for a one-time purchase, as further described in the Refund Policy.
iv. Other Subscription Changes. To the extent such functionality is made available by enCore, You may change the Products included in Your Subscription, change Your Delivery Schedule, pause or skip a Product shipment, update Your Payment Method, or update Your shipping information through Your account on the Website.
v. Changes to Subscriptions. enCore may change its Subscription models, Products, Delivery Schedules, and pricing from time to time. enCore will provide You with advance notice of any material change affecting Your then-current Subscription, including any change to its price, Products, or Delivery Schedule, and any other notice required by applicable law. You may cancel Your Subscription before the change takes effect.
i. Promotions. From time to time, enCore may offer discounts or promotions (collectively, “Promotions”) through its Website or otherwise. Promotions are subject to modification or termination at any time. Additional terms and conditions may apply to such Promotions, and some Products may be excluded. Promotions have no cash value and are not assignable or transferable, except as expressly provided in the applicable promotion terms. enCore is not responsible for any inability to use any discount, code, or offer in connection with a Promotion. Promotions are void where prohibited or restricted by applicable law.
6. Website Use.
a. Access. Subject to Your complete and ongoing compliance with these Terms, enCore grants You, solely for Your own personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Website.
b. Restrictions. Except and solely to the extent prohibited under applicable law, You may not, and You may not permit a third party to: (a) reproduce, distribute, sell, license, lease, transfer, publicly display, or publicly perform the Website or any content therein; (b) make modifications or changes to or derivative works of the Website or any content therein; (c) interfere with or circumvent any feature of the Website, including any security or access control mechanism; (d) use the Website or content therein for any competitive purpose; (e) access or attempt to access the Website or content therein except as expressly provided in these Terms; (f) use automated scripts to collect information from or otherwise interact with the Website or content therein; or (g) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Website or content therein. In addition to other prohibitions as set forth in the Terms, You are prohibited from using the Website or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any federal, state, or local regulations, rules, laws, or ordinances; (d) to infringe upon or violate enCore’s intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Website or any related systems or networks; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Website or any related systems or networks. enCore reserves the right to terminate Your access to and use of the Website for violating any of the prohibited uses.
c. Suspension. Without limiting enCore’s right to terminate these Terms, enCore may also suspend Your access to the Website, with or without notice to You, upon any actual, threatened or suspected breach of these Terms or applicable law or upon any other conduct deemed by enCore, in its sole discretion, to be inappropriate or detrimental to the Website, enCore, or any other user or third party.
d. Customer Reviews. The Website may allow You to rate, review, ask questions about, or comment on Products (collectively, “Customer Reviews”). Customer Reviews must be submitted in good faith, reflect Your honest opinions and actual experience, and not contain content that is false, misleading, unlawful, defamatory, obscene, abusive, threatening, infringing, or otherwise violates these Terms or the rights of any person. You may not impersonate another person or entity, submit advertising or promotional material, or include another person’s personal or sensitive information in a Customer Review. You retain ownership of Your Customer Reviews. By submitting a Customer Review, You grant enCore a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable, and sublicensable license to host, use, reproduce, modify for formatting, publish, translate, distribute, and publicly display the Customer Review in connection with enCore’s business, Products, Website, and marketing. You represent and warrant that You own or otherwise have all rights and permissions necessary to submit the Customer Review and grant this license. enCore may, but is not obligated to, monitor, edit, refuse to publish, or remove any Customer Review at any time. Customer Reviews reflect the opinions of the individuals who submit them and do not constitute medical or dental advice or necessarily reflect the views of enCore. enCore may publicly display a Customer Review together with the reviewer name, designation, or verification information disclosed when the Customer Review is submitted. You may request removal of Your Customer Review by contacting enCore at support@encoreguards.com, and enCore will use commercially reasonable efforts to process the request.
7. Ownership. As between You and enCore, enCore retains all right, title, and interest, including all intellectual property and proprietary rights, in and to the Website and all content, information, software, and code owned or controlled by enCore and made available through the Website, and in and to the designs, specifications, trademarks, and other intellectual property embodied in or relating to the Products, including any additions, improvements, updates, and modifications thereto. Your purchase of a Product transfers ownership of the physical Product to You but does not transfer any intellectual property rights in or relating to the Product. Your personal information is governed by the Privacy Policy. You receive no ownership interest in the Website and are not granted any right or license to use the Website except for Your limited right to access and use it under these Terms. The enCore name and logo and all product and service names associated with the Website or Products are trademarks of enCore or its licensors or third-party providers, and You are granted no right or license to use them.
8. Indemnity. You agree to indemnify, defend, and hold harmless enCore, and its officers, directors, members, managers, equityholders, employees, agents, contractors, successors, and assigns (collectively, the “Indemnified Parties”) from any and all losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim, demand, or action brought by a third party against any Indemnified Party arising from or relating to: (i) Your misuse of a Product or use of a Product contrary to enCore’s instructions; (ii) Your unauthorized resale or redistribution of a Product or Your provision of a Product to an unauthorized third-party user; (iii) Your violation of applicable law; or (iv) Your breach or alleged breach of these Terms. enCore will provide You with reasonable notice of any claim subject to indemnification. enCore may, at its option, assume exclusive control of the defense and settlement of the claim with counsel of its choosing, and You will provide reasonable cooperation in the defense at Your expense. You may participate in any defense controlled by enCore with counsel of Your choosing at Your expense. If enCore does not assume control of the defense, You will control the defense with counsel reasonably acceptable to enCore, but You may not settle the claim without enCore’s prior written consent.
9. Limitations of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ENCORE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING OUT OF OR RELATING TO ACCESS TO OR USE OF THE WEBSITE; THE PRODUCTS OR SUBSCRIPTIONS; OR OTHERWISE RELATING TO THESE TERMS, EVEN IF ENCORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ENCORE’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO ACCESS TO OR USE OF THE WEBSITE; THE PRODUCTS OR SUBSCRIPTIONS; OR OTHERWISE RELATING TO THESE TERMS, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (1) THE TOTAL AMOUNT YOU ACTUALLY PAID FOR THE PRODUCT(S) OR SUBSCRIPTION(S) GIVING RISE TO THE CLAIM DURING THE SIX MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY; AND (2) $500. YOU AGREE THAT ENCORE WOULD NOT ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
THE LIMITATIONS IN THIS SECTION WILL NOT APPLY TO THE EXTENT A CLAIM RESULTS FROM ENCORE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR TO THE EXTENT LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. IN JURISDICTIONS WHERE THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, ENCORE’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Data Privacy. You acknowledge that enCore collects, uses, and discloses personal information that You provide through the Website or that is otherwise collected about You through the Website or in connection with the Products, as described in enCore’s privacy policy, available at https://encoreguards.com/pages/privacy-policy (the “Privacy Policy”).
11. Feedback. If You provide enCore with any feedback or suggestions regarding the Website or Product(s) (“Feedback”), You hereby assign to enCore all rights in the Feedback and agree that enCore shall have the right to use such Feedback and related information in any manner it deems appropriate without a duty of accounting or any associated fees or royalties to You. enCore will treat any Feedback You provide to enCore as non-confidential and non-proprietary. You agree that You will not submit to enCore any information or ideas that You consider to be confidential or proprietary. For clarity, Feedback does not include Customer Reviews, which are governed by Section 6(d).
12. Dispute Resolution; Arbitration. PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION (THE “ARBITRATION AGREEMENT”) CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH ENCORE AND LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF FROM ENCORE.
a. Agreement to Arbitrate. Except as otherwise provided in Section 12(b) (Exceptions to Arbitration), the parties will attempt to resolve through discussion all disputes, controversies, or claims arising under, out of, or relating to these Terms; the Website; or the ordering, registration, receipt, or use of any Product or Subscription, including the formation, validity, binding effect, interpretation, performance, breach, or termination of these Terms, the arbitrability of any issue, and any related non-contractual claims (each, a “Dispute”). If a Dispute cannot be resolved through negotiations between the parties within five (5) days after one party provides notice of the Dispute to the other, either party may submit the Dispute for final resolution through binding arbitration administered by JAMS under its Streamlined Arbitration Rules and Procedures and applicable Consumer Minimum Standards then in effect (collectively, the “Rules”). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Either party may commence arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted in English before one neutral arbitrator selected in accordance with the Rules. Unless otherwise agreed by the parties, the arbitration will be conducted remotely or in the state in which You reside. The arbitrator may award on an individual basis any remedy available in a court under applicable law. Judgment on the award may be entered in any court having jurisdiction. Payment of arbitration fees and costs will be governed by the Rules and applicable law. Each party will bear its own attorneys’ fees unless the arbitrator awards attorneys’ fees under applicable law.
b. Exceptions to Arbitration. Either party may bring an individual action in small-claims court if the action qualifies for that court and remains solely within that court. In addition, if enCore reasonably believes that You have infringed or threatened to infringe enCore’s intellectual property rights, enCore may seek emergency, preliminary, or other appropriate interim relief in a state or federal court located in Orange County, California.
c. WAIVER OF JURY TRIAL. YOU AND ENCORE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL BEFORE A JUDGE OR JURY. Except as provided in Section 12(b), You and enCore elect to resolve all Disputes through arbitration under this Section 12. An arbitrator may award on an individual basis the same relief as a court, but there is no judge or jury in arbitration, and judicial review of an arbitration award is limited.
d. CLASS-ACTION WAIVER. YOU AND ENCORE AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. The arbitrator may not consolidate the claims of more than one person or preside over any class, collective, consolidated, representative, or private attorney general proceeding.
e. Opt-Out Right. You may opt out of this Arbitration Agreement by sending written notice to enCore within thirty (30) days after You first accept these Terms. Your notice must include Your full name, mailing address, email address, and order or account information sufficient for enCore to identify You. The notice must be sent to support@encoreguards.com and state that You are opting out of the Arbitration Agreement. If You timely opt out, neither You nor enCore will be bound by this Arbitration Agreement, but all other provisions of these Terms will remain effective.
13. Governing Law and Venue. Except to the extent preempted by federal law or otherwise required by applicable law, these Terms and any dispute arising out of or relating to these Terms, the Website, or the ordering, registration, receipt, or use of any Product or Subscription will be governed by the laws of the State of California, without regard to conflict-of-laws principles. Except for an individual action properly brought in small-claims court pursuant to Section 12(b), and subject to the Arbitration Agreement in Section 12, the parties submit to the exclusive jurisdiction of the state and federal courts located in Orange County, California, for any litigation permitted to be brought in court and waive any objection to venue in those courts. Nothing in these Terms limits any nonwaivable consumer rights available under applicable law.
14. Notices. Unless otherwise specified in these Terms or required by applicable law, any notices required or allowed under these Terms will be provided to enCore by postal mail to the address for enCore listed on the Website. enCore may provide You with any notices required or allowed under these Terms by sending You an email to any email address You provide to enCore in connection with Your use of the Website, provided that in the case of any notice applicable both to You and other users of the Website, enCore may instead provide such notice by posting on the Website, unless applicable law requires enCore to provide the notice directly to You. Notices provided to enCore will be deemed given when actually received by enCore. Notice provided to You will be deemed given immediately after posting to the Website or sending via e-mail.
15. Linked Sites. The Website may contain links to third party sites, services, or content that are not owned or controlled by enCore. Such links are provided for convenience and do not imply enCore’s endorsement of the applicable third party or its products, services, or content. If You access a third party site, service, or content from the Website, then You do so at Your own risk and enCore is not responsible for the availability of, or any products, services, content, privacy practices, or security practices associated with, any linked website or service. Your use of any third-party website or service is subject to the applicable third party’s terms and policies.
16. Additional Terms. Any waiver or failure by enCore to enforce any provision of these Terms on one occasion will not be deemed a waiver by enCore of any other provision or of that provision on any other occasion. If any provision of these Terms is held to be unenforceable, that provision will be modified and enforced to the maximum extent permitted by applicable law or, if it cannot be so modified, severed from these Terms, and the remaining provisions will remain in full force and effect. You may not assign, transfer, or delegate these Terms or any of Your rights or obligations under these Terms, in whole or in part, without enCore’s prior written consent. Any attempted assignment, transfer, or delegation in violation of the foregoing will be null and void. enCore may assign these Terms to any party that assumes enCore’s obligations under these Terms. The words “include,” “includes,” and “including” mean “including without limitation,” and the word “or” is not exclusive. The parties are independent parties. Neither party is the agent, employee, employer, partner, or joint venturer of the other, and neither party has any right or authority to bind or enter into any obligation on behalf of the other. Any provision of these Terms that by its nature is intended to survive will survive the completion of any purchase, cancellation of any Subscription, and termination of Your access to or use of the Website.
