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 that accesses enCore’s website at https://encoreguards.com/ (the “Website”) and/or purchases any of enCore’s customized mouth guards, molds, and related products (the “Product(s)”) (such individual or entity is hereinafter referred to as “You”, and “Your”).
PLEASE CAREFULLY READ THESE TERMS. BY ACCESSING THE WEBSITE AND/OR ORDERING THE PRODUCT(S), YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS (INCLUDING ANY POLICIES WHICH ARE 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 (including any other policies which are incorporated herein by reference). Unless You later enter into any other signed, written agreements with enCore, 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. Except for certain kinds of disputes described in Section 13, You agree that disputes arising under these Terms (including any dispute arising from your purchase or use of a Product) will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND ENCORE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 13.)
enCore is not licensed to provide dental care and the Website does not (and is not intended to) provide any medical or dental care or medical advice. Products are not a substitute for a visit to your dentist. If you wish to receive medical or dental care or medical advice, please contact a dentist or other licensed medical care provider.
1. DEFINITIONS. Capitalized words or phrases used in these Terms have the definitions given in these Terms or, if not defined in these Terms, have their plain English meaning as commonly interpreted in the United States.
2. RESERVATION OF RIGHTS. enCore reserves the right to refuse service to You for any reason at any time. You understand that Your content (not including credit card information), may be transferred unencrypted and involve: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Website or Product(s), without express written permission by enCore. The Website may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only.
3. MODIFICATIONS. enCore may, at any time, modify the Website or Product(s), with or without notice to You, by making those modifications available on the Website. enCore also reserves the right, at any time, to modify these Terms. enCore will inform You of the presence of any changes to these Terms by posting those changes on the Website or by providing You with notice through the Website. Any modifications will be effective immediately upon posting on the Website or delivery of such notice through the Website. You may terminate these Terms as set forth below if You object to any such modifications. However, You will be deemed to have agreed to any and all modifications through Your continued use of the Website or Product(s) following such notice period. Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. enCore reserves the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
4. ELIGIBILITY. The Website and Product(s) are intended for use by individuals 18 years of age and older. If You are a parent or guardian of a child under 18, then You may allow Your child to access the Website or Product(s) only under Your direct supervision. You will not allow Your child to access the Website or Product(s) other than under Your direct supervision and You will be solely responsible for all access to and use of the Website or Product(s) by Your child. enCore does not recommend or endorse rigid guards (hard or hybrid materials) for children under 18 as rigid guards can stunt oral development. Only soft guards are recommended for those under 18 years old.
5. SALES TERMS AND CONDITIONS.
a. DELIVERY. The Product(s) will be delivered within a reasonable time after enCore’s receipt of full payment for the Product(s), in accordance with enCore’s Shipping Policy, available at: https://encoreguards.com/pages/shipping-policy (the “Shipping Policy”), which is incorporated herein by reference. enCore only ships Products to the United States, and cannot ship any Products outside the United States. As set forth in the Shipping Policy, enCore shall not be liable for any delays, loss, or damage in transit. Delivery of the Product(s) shall be made EXW (Incoterms® 2020) to the place You designate in Your order. enCore reserves the right to alter, modify, or redesign its Product(s) without any obligation to replace previous shipments to You.
b. YOUR ACTS OR OMISSIONS. You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that enCore can complete your transactions and contact you as needed. You are responsible for the confidentiality of your account login information. You are responsible for the use of your account and login credentials. If enCore's performance of its obligations under these Terms is prevented or delayed by any act or omission of You or its agents, subcontractors, consultants, or employees, enCore shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by You, in each case, to the extent arising directly or indirectly from such prevention or delay.
c. PRICE. The purchase of all Product(s) from enCore shall be made at the price(s) set forth on the Website (the “Price”). The Price may be modified or change at any time in enCore’s discretion without notice to You. Unless otherwise agreed by enCore, the Price are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by You. You shall be responsible for all such charges, costs and taxes; provided, that, You shall not be responsible for any taxes imposed on, or with respect to, enCore's income, revenues, gross receipts, personal or real property, or other assets.
d. DISCLAIMERS AND EXCLUSIVE REMEDY. enCore reserves the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. enCore may exercise this right on a case-by-case basis. enCore reserves the right to limit the quantities of any products or services that enCore offers. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. enCore reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited. Any commitments made by enCore, and remedies available to You, with respect to the Product(s) are limited to those which are set forth in these Terms and in enCore’s Refund Policy, available at: https://encoreguards.com/pages/refund-policy, and 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 SHALL NOT BE REQUIRED TO HONOR THE REFUND POLICY TO THE EXTENT: (I) ANY PRODUCT DEFECT ARISES BECAUSE YOU FAILED TO FOLLOW ENCORE'S ORAL OR WRITTEN INSTRUCTIONS AS TO THE STORAGE, INSTALLATION, USE OR MAINTENANCE OF THE PRODUCT; OR (II) YOU ALTER OR REPAIR, OR ATTEMPT TO ALTER OR REPAIR, THE PRODUCT WITHOUT THE PRIOR WRITTEN CONSENT OF ENCORE; OR (III) THE PRODUCTS ARE PAST THEIR RETURN WINDOW.
e. YOU ASSUME ALL RISK OF USE AND LOSS OF THE PRODUCT(S). YOU HEREBY REPRESENT AND WARRANT TO ENCORE THAT YOU HAVE CONSULTED WITH A LAWFULLY LICENSED DENTIST PRIOR TO THE USE OF THE PRODUCT(S) AND SUCH DENTIST HAS FULLY APPROVED YOUR USE OF THE PRODUCT(S). YOU FURTHER ACKNOWLEDGE AND AGREE THAT NEITHER ENCORE NOR ITS EMPLOYEES OR AGENTS ARE DENTAL PROFESSIONALS, AND THAT YOU MUST SEEK IMMEDIATE ASSISTANCE FROM A LICENSED DENTIST OR OTHER DENTAL PROFESSIONAL IN THE EVENT YOU EXPERIENCE ANY ISSUES WITH THE PRODUCT(S), INCLUDING WITHOUT LIMITATION BREAKAGE OF DENTAL MOLDS, OR IMPROPER FITTINGS OF THE PRODUCT(S). YOU ACKNOWLEDGE AND AGREE THAT ENCORE SHALL NOT BE RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF ANY DENTISTS OR OTHER DENTIAL PROFESSIONALS. YOU HEREBY AGREE TO INDEMNIFY AND HOLD ENCORE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS HARMLESS FOR ANY DAMAGES AND/OR INJURIES RELATED TO YOUR USE OF THE PRODUCT(S). IF YOU HAVE ANY SIGNIFICANT DENTAL WORK, LOOSE FILLINGS OR LOOSE TEETH, PERSISTENT JAW OR NECK PAIN, OR HAVE BEEN DIAGNOSED BY YOUR DENTIST WITH TEMPOROMANDIBULAR JOINT DYSFUNCTION, BE SURE TO CONSULT YOUR DENTIST BEFORE USING THE PRODUCTS. IF YOU NOTICE ANY DISCOMFORT OR CHANGES TO YOUR BITE OR OCCLUSION AFTER USING PRODUCTS, DISCONTINUE USE AND CONSULT YOUR DENTIST. DO NOT USE THE PRODUCTS AS A SPORTS MOUTH GUARD OR RETAINER. PRODUCTS SHOULD NOT BE USED BY CHILDREN OR ANYONE WHO IS STILL GROWING / HAS SHIFTING TEETH OR ANY CHILD OR ADULT WHERE THERE IS A RISK OF ASPIRATING THE PRODUCT. THE PRODUCTS ARE NOT INTENDED FOR USERS WITH BRACES OR DENTURES. IF PAIN OR DISCOMFORT OCCURS AFTER USING THE PRODUCTS, CONSULT YOUR DENTIST. IF ANY CHANGES TO TEETH, MOUTH, OR DENTAL WORK ARE DONE, IT IS YOUR RESPONSIBILITY TO DETERMINE IF YOU ARE STILL ABLE TO USE THE PRODUCTS. PLEASE CONTACT US IMMEDIATELY IF YOUR PRODUCTS ARE EXPIRED.
ENCORE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCT(S), INCLUDING ANY WARRANTY OF MERCHANTABILITY; WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. UNLESS AND TO THE EXTENT OTHERWISE SPECIFICALLY DESCRIBED ON THE PACKAGING OF THE PRODUCT(S), THE PRODUCT(S) HAVE NOT BEEN EVALUATED OR APPROVED BY ANY GOVERNMENTAL OR REGULATORY AGENCY, INCLUDING WITHOUT LIMITATION THE UNITED STATED FOOD AND DRUG ADMINISTRATION. THE REMEDIES SET FORTH IN THE REFUND POLICY SHALL BE BE YOUR SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO THE PRODUCT(S).
f. PERMITTED USE; COMPLIANCE WITH LAW. You shall not use the Product(s) for the conduct of, or assistance to the conduct of, activities such as harmful actions against people or unlawful behaviors. You shall comply with all applicable laws, regulations, and ordinances. You shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms. You are responsible for all health and safety relating to the persons who are operating the Product(s) and You must comply with all applicable health and safety legislation and all applicable regulations, advisory standards and codes of practice. You must ensure that Product(s) are maintained and operated in accordance with all applicable health and safety laws.
g. NO RESALE. You may only use the Products for your own personal, non-commercial use. You may not resell or redistribute the Products. enCore only sells its Products to people in the United States, and cannot send any Products outside the United States. enCore cannot support any orders outside the United States. You should only buy from enCore directly – enCore is not responsible for any Products purchased from third parties, and enCore does not warrant that those Products work or are safe to use. There are NO authorized resellers for the Products. If you purchase from a third party enCore will not be able to send you the finished Product, and enCore cannot ship replacement impression kits or provide adjustments to the Products.
h. PROMOTIONS. From time to time, enCore may offer discounts or promotions (collectively, “Promotions”) on its Website. 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 offer no cash value, and are not assignable or transferable. 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 such a restriction is impermissible 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 international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our 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 service or of any related website, other websites, or the Internet; (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 Service or any related website, other websites, or the Internet. enCore reserve the right to terminate your use of the Service or any related 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.
7. OWNERSHIP. enCore retains all right, title, and interest, including, without limitation, all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights in and to the Website and Products and any data, content, information or code therein, and including in each case any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Website and You are not granted any right or license to use the Website itself, apart from Your ability to access the Website under this Agreement. The enCore name, logo, and all product and service names associated with the Website or Product(s) are trademarks of enCore and its licensors and third party providers and You are granted no right or license to use them.
8. INDEMNITY. You hereby agree to indemnify, defend, and hold harmless enCore and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising in any manner from: (i) Your access to or use of the Website or Product(s); (ii) violation of applicable Laws; and (iii) Your breach of any representation, warranty, or other provision of these Terms. enCore will use reasonable efforts to provide You with notice of any such claim or allegation, and enCore will have the right to participate in the defense of any such claim at its expense.
9. LIMITATIONS OF LIABILITY. ENCORE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE WEBSITE OR PRODUCT(S), EVEN IF ENCORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT OR SERVICES. ENCORE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $500. YOU AGREE THAT ENCORE WOULD NOT ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, ENCORE’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10. RELEASE. In consideration of the exclusive remedies set forth in these Terms and the Refund Policy, You hereby release and forever discharge enCore, its affiliates, and its and their employees, agents, contractors, assigns, licensees, and successors in interest from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, the Website or the Product(s).
12. FEEDBACK. If You provide enCore 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 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.
13. GOVERNING LAW AND VENUE. The interpretation of the rights and obligations of the parties under these Terms, including, to the extent APPLICABLE, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of California, U.S.A. as such laws apply to contracts between California residents performed entirely within California without regard to the conflict of laws provisions thereof. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to these Terms, including the formation, validity, binding effect, interpretation, performance, breach or termination, of these Terms and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating these Terms (each, a “Dispute”), in accordance with the procedures set forth in this section. If any Dispute cannot be resolved through negotiations between the parties within five days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Terms of Service delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by enCore in Orange County, California. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees, and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. Subject to this section, each party will bring any action or proceeding arising from or relating to these Terms exclusively in a federal or state court in California and each party irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts.
14. NOTICES. Unless otherwise specified in these Terms, 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. 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 or content that are not under the control of enCore. If You access a third party site or content from the Website, then You do so at Your own risk and enCore is not responsible for any content on any linked site or content.
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 such provision on any other occasion. If any provision of these Terms is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to these Terms will be entitled to receive its costs, expert witness fees, and reasonable attorneys’ fees, including costs and fees on appeal. Neither these Terms nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of enCore. Any assignment in violation of the foregoing will be null and void. enCore may assign these Terms to any party that assumes enCore’s obligations hereunder. The parties hereto are independent parties, not agents, employees of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.