MOUTHWATCH LLC Terms and Conditions of Sale for MouthWatch Products and/or Software
Updated April 15, 2021
These Terms and Conditions of Sale for MouthWatch LLC (MW) Products and/or Software(“Terms and Conditions of Sale”) apply to the purchase of Intraoral Cameras, Camera Sleeves, Accessories and Related Products] (“Products”) and certain software for use with or bundled with the foregoing Products and Software (“Software”), from MouthWatch LLC (“MW” “we”, “our” or “us”) online store (“MW Store”).
BY SUBMITTING AN ORDER TO THE MW STORE FOR THE PURCHASE OF PRODUCTS AND/OR SOFTWARE YOU (“YOU”, “YOUR”) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS OF SALE.
MW reserves the right at its sole discretion, to change, revise, add to, remove from and otherwise edit these Terms and Conditions of Sale, at any time by updating this posting. Any removal of and/or changes, revisions or additions to these Terms and Conditions of Sale are effective at the time they are posted. For this reason, it is your responsibility and MW encourages you to check these Terms and Conditions of Sale each time you make a purchase from the MW Store.
1. Terms and Conditions of Sale for Products and/or Software
A. All orders for Products and/or Software from the MW Store are subject to MW’s approval and acceptance, and MW reserves the right to reject any order, in whole or in part, at MW’s sole discretion at any time before delivery to you. Reasons for rejections of orders include, but are not limited to, credit card rejection, out-of-stock Products, pricing error, description error, pictorial error, technical error, editorial error and/or typographical error by MW, and/or unusually large or excessive quantities of Products and/or Software ordered.
B. The MW Store will confirm your order by a confirmation email, which will confirm the Products and/or Software ordered, order quantities, purchase price, shipping and processing charges and taxes, payment method (credit card, PayPal, or other accepted payment method, if applicable) and shipping information, such as shipping address and signature required, if applicable, and estimated arrival. Notwithstanding the foregoing, your order shall not be deemed accepted by MW until MW’s shipment of the Products ordered. You should call MW’s customer support at the number listed on the confirmation email if any of the items listed are incorrect.
C. You can only cancel an order for Products and/or Software by contacting MouthWatch Support at [email protected] or via online chat or calling the support number listed at mouthwatch.com. Request a cancellation of your order prior to shipment and your order will be cancel and payment method will be refunded. If the order has already shipped, you will be issued a return label. Upon receipt of your return, a full refund will be issued. MW reserves the right to cancel any order, in whole or in part, including without limitation, pre-orders or back-orders, at MW’s sole discretion. MW will advise you of any canceled order by email.
D. For orders of Products, the MW Store will send an email advising that your order has shipped, and that email will include Products shipped and tracking information for the shipment. MW may, on occasion, ship some, but not all, of the Products and/or Software ordered under a particular order. The rest of the Products ordered under that order will either be shipped when available or canceled, at MW’s sole discretion.
E. Prices for Products and/or Software ordered are those in effect at the time of order, and do not include taxes and shipping and processing, if applicable. In addition to the prices specified, the amount of any sales, use, excise or other tax applicable to the sale of the Products and/or Software, and any applicable shipping and processing charges, will be added to your order total and are your responsibility.
F. Payment for orders may be made by credit card or PayPal. The MW Store accepts VISA, American Express, and MasterCard. The MW Store will receive payment authorization at the time the order is placed, and the credit card account will be charged for Products and/or Software at the time the order is placed. PayPal will be charged at the time the order is placed. For backorder and preorder items, your credit card will be charged when the Product or Software order is shipped, and PayPal will not be accepted as a method of payment for backorder and preorder items.
G. MW may, at its sole discretion and for any reason whatsoever, limit order quantities, including but not limited to, quantities for each individual order and/or each delivery address or billing address. Sales from the MW Store are intended for end user purchasers only and orders known or suspected to be placed by dealers, distributors or other resellers will be rejected or canceled. By submitting an order to the MW Store, you agree that you are not purchasing Products and/or Software.
H. MW reserves the right at any time and without prior notice to change MW Store prices and charges, MW’s policies and these Terms and Conditions of Sale. MW further reserves the right without prior notice to discontinue the sale of any Products and/or Software, and to change any Products and Product specifications or Software and Software specifications.
I. All deliveries of Products and/or Software ordered from the MW Store are subject to the MW Store Shipping Policy, which is incorporated by reference in these Terms and Conditions of Sale. Please see the MW Store Shipping Policy for information concerning delivery of Products and/or Software ordered from the MW Store.
J. All sales of Products and/or Software by the MW Store are subject to the MW Return Policy, which is incorporated by reference in these Terms and Conditions of Sale. Please see the MW Store Return Policy for information concerning Product returns and limitations.
K. ALL MW PRODUCTS AND/OR SOFTWARE PURCHASED FROM THE MW STORE INCLUDE A MW LIMITED WARRANTY. EXCEPT AND TO THE EXTENT SET FORTH IN MW’S WARRANTY CARD SHIPPED WITH PRODUCTS OR IN THE CASE OF SOFTWARE, SET FORTH IN THE SOFTWARE LICENSE AGREEMENT FOR THAT SOFTWARE, MW SPECIFICALLY DISCLAIMS AND IN NO EVENT SHALL MW BE LIABLE FOR ANY WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR IF APPLICABLE, INFORMATIONAL CONTENT OR ACCURACY. IN NO EVENT SHALL MW BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOSSES, OR EXPENSES OF ANY KIND RESULTING FROM PRODUCT AND SOFTWARE INCLUDING BUT NOT LIMITED TO SOFTWARE MEDIA, HOWEVER CAUSED, OR FOR ANY REASON WHATSOEVER, EVEN IF MW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES. CERTAIN STATES MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. MW’S WARRANTIES APPLY ONLY TO PRODUCTS AND/OR SOFTWARE INCLUDING BUT NOT LIMITED TO SOFTWARE MEDIA WHICH HAS NOT BEEN MODIFIED OR ALTERED IN ANY WAY.
PLEASE SEE CONSUMER PROTECTION NOTICE SECTION 6 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 1.m.
L. The terms “sale” (in any tense or form), and “purchase” (in any tense or form) whenever used in these Terms and Conditions of Sale shall mean “license” in the case of Software.
M. MW is not responsible for incorrect information that is displayed on the MW Store as a result of interference with or malfunction of the internet or any computer equipment or software, nor is MW responsible for any technical, editorial and/or typographical errors. If for any reason, at any time prior to delivery to you, the price for any Products and/or Software or any other charge displayed on the MW Store is other than that intended by MW, then MW has the right in its sole discretion to cancel any and/or all orders placed at the unintended price.
2. Governing Law
You agree that these Terms and Conditions of Sale and all matters relating to your purchase of any Products and/or Software from the MW Store will be governed by and construed in accordance with the laws of the State of New York, and the United States, as such laws are applied to agreements entered into and to be performed entirely within New York State between New York State residents without regard to its conflict of laws principles.
IF YOU ARE A CONSUMER, HOWEVER, THIS PROVISION SHALL NOT BE CONSTRUED TO LIMIT YOUR RIGHTS UNDER CONSUMER PROTECTION LAWS OF YOUR STATE OF RESIDENCE AS SET FORTH IN CONSUMER PROTECTION NOTICE SECTION 6 BELOW.
3. Dispute Resolution; Informal Resolution and Formal Resolution by Arbitration/Class Action Waiver
You and MW each agree that any legal or equitable claim, controversy or dispute relating to or arising from the purchase of any Product from the MW Store or the interpretation, enforceability or applicability of these Terms and Conditions of Sale (collectively, a “Claim”) will be resolved as follows:
a. Informal Resolution:
You and MW will first attempt to resolve any Claim informally. In the event that any Claim arises between you and MW, you or MW as the case may be, must send to the other a notice of Claim which indicates in writing the name, address and contact information pertaining to the Claim; the facts and any other relevant information pertaining to the Claim; and the party’s proposed resolution of the Claim. You must send any notice of Claim to MW as follows: MouthWatch, LLC, 460 Main Street, Ste B, Metuchen, NJ 08840, Attention: Arbitration Claim/Legal Department. MW will send any notice of Claim to you at the contact information that MW has for you. You and MW agree to try to promptly resolve any Claim informally. In the event a Claim is not resolved within 60 days after either you or MW as the case may be, receives a notice of Claim from the other, you or MW can request arbitration. Notwithstanding the requirement to arbitrate all Claims, you may commence an individual Claim in small claims court in lieu of arbitration.
b. Formal Resolution by Arbitration/Class Action Waiver:
READ THE FOLLOWING ARBITRATION PROVISION CAREFULLY, IT LIMITS YOUR RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION BEFORE A JUDGE OR JURY. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. In the event that you and MW do not resolve a Claim informally or in small claims court, the Claim shall be settled by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act.
The rules in arbitration are different. There is no judge or jury, and review is limited, but an arbitrator may award the same damages and relief to you individually as a court could, as it must honor the same limitations stated in these Terms and Conditions of Sale as a court would. Arbitration will be conducted under the JAMS Streamlined Arbitration Rules & Procedures (referred to as the “JAMS Rules”) and under the rules set forth in these Terms and Conditions of Sale. If there is a conflict between JAMS Rules and the rules set forth in these Terms and Conditions of Sale, the rules set forth in these Terms and Conditions of Sale will govern.
If you decide to initiate arbitration, MW agrees to pay the arbitration initiation fee and any additional required deposit required by JAMS to initiate your arbitration. You and MW each agree to pay the costs of the arbitration proceeding provided however that if you are a consumer you shall not be required to pay more than $250.00 of the fees or such amount as the JAMS Rules may later prescribe. All other fees, such as attorneys’ fees and expenses of travel to the arbitration, will be paid in accordance with JAMS Rules. The Arbitration will be held at a location near your place of residence if possible, unless you and MW both agree to another location or to telephonic arbitration. To initiate arbitration, you or MW must do the following things:
i. Write a demand for arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.
ii. Send three copies of the Demand for Arbitration, plus the appropriate filing fee to: JAMS, 620 Eighth Ave., 34th Floor, New York, NY 10018.
iii. Send one copy of the Demand for Arbitration to the other party. You should send the Demand for Arbitration to MW as follows: MouthWatch, LLC, 460 Main Street, Ste B, Metuchen, NJ 08840 Attention: Arbitration Claim/Legal Department. MW will send any Demand for Arbitration to you at the contact information that MW has for you.
Special Rules in the arbitration proceeding.
i. The arbitrator has no authority to make errors of law and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any Federal or State court that has jurisdiction.
ii. Neither you nor MW shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities or arbitrate any claim as a representative member of a class or in a private attorney general capacity, or in any other proceeding in which either you or MW proposes to act in a representative capacity. THIS MEANS THAT YOU WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN ANY CLASS OR CONSOLIDATED ACTION WHATSOEVER. Accordingly, you and MW agree that the JAMS Class Action Procedures do not apply to our arbitration. A court may sever any portion of this dispute resolution provision if it finds such unenforceable, except for the prohibition on class, representative and private attorney general arbitrations.
4. Limited Time to File Claims
You agree that you will assert any Claim within one (1) year after the Claim arises, or such Claim will be barred.
PLEASE SEE CONSUMER PROTECTION NOTICE SECTION 6 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 5.
5. Enforceability, Entire Agreement, and No Waiver
You agree that these Terms and Conditions of Use will be enforceable by us and our successors and assigns against you and your heirs, minors, successors, and assigns. You agree that if any provision within these Terms and Conditions of Use is found to be void or unenforceable, it will not affect the validity of the balance of these Terms and Conditions of Use, which shall remain valid and enforceable.
B. Entire Agreement
These Terms and Conditions of Use and any additions, changes, edits and/or revisions made thereto by MW, constitute the entire agreement between you and MW and supersede in their entirety any and all written or oral agreements previously existing between you and MW.
C. No Waiver
Neither these Terms and Conditions of Use nor any provisions hereof may be modified, waived, amended, supplemented or discharged except by a document in writing signed by MW, or as otherwise permitted herein. The failure to enforce at any time any of the provisions of these Terms and Conditions of Use shall in no way be construed to be a waiver of such provisions, nor in any way affect the validity of these Terms and Conditions of Use or the right thereafter to enforce one or more of the provisions thereof. No waiver by either you or MW, whether expressed or implied, of any provision of these Terms and Conditions of Use and any additions, changes, edits and/or modifications made by MW, or any breach thereof, shall constitute a continuing waiver of such provision or a waiver of any other provision of these Terms and Conditions of Use.
6. Consumer Protection Notice; Exclusions and Limitations
If you are a consumer, the provisions in these Terms and Conditions of Use are intended to be only as broad and inclusive as is permitted by the laws of your state of residence. If you are a New Jersey consumer, the Terms of Sections 1.M, 2 and 4 do not limit or waive your rights as a consumer under New Jersey law and the provisions in these Terms and Conditions of Use are intended to be only as broad and inclusive as is permitted by the laws of the state of New Jersey. In any event, MW reserves all rights, defenses and permissible limitations under the law of your state of residence. Notwithstanding the foregoing, nothing in this section shall modify subsection 3.B. (“Formal Resolution by Arbitration/Class Action Waiver”).
7. Reseller Policy
Please note that the MW Store is intended for end-user consumers purchasing products for their own personal use only. Accordingly, the MW Store reserves the right to refuse or cancel orders at any time if it believes that the products are being purchased for resale. The MW Store assumes no responsibility or liability for anything resulting from such refusals or cancellations, or for e-mail notification failure. If you are interested in purchasing Products for resale, please contact MW at [email protected]
8. Certain Jurisdictions, Export Laws
A. MW makes no representation or warranty that the MW Store and/or Products and/or Software are appropriate for use in every country, state or jurisdiction, and access to the Products and/or Software from countries or jurisdictions where the Products and/or Software are illegal or are prohibited. You are responsible for compliance with all local laws, rules and regulations and MW shall not be liable in any way in the event the Products and/or Software or any portion thereof is not permitted in any jurisdiction.
B. The Products and/or Software may be subject to the export laws, restrictions, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). You shall not use the MW Store and/or Products and/or Software to collect, store or transmit any technical information or data that is controlled under U.S. Export Laws. You shall not export or re-export or allow the export or re-export of, any portion of the Products and/or Software in violation of any U.S. Export Laws. None of the content associated with the Products and/or Software may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws. By use of the MW Store, you agree to the foregoing and represent and warrant that you are not a national or resident of, located in, or under the control of, any restricted country; and you are not on any denied parties list; and you agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If you access the MW Store or use the Products and/or Software from other countries or jurisdictions, you do so on your own initiative and you are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, you shall not access the Service.