These terms and conditions (“Terms”) contain the terms governing your use of the websites owned by Smile Baby, LLC, and our subsidiaries and brands, which include Smile Baby (collectively, “Smile Baby,” “we,” “us” and “our”), including smilebabyshop.com (collectively, the “Site”).
If these Terms change, we will post updated Terms on our website at least thirty days before the effective date of the change. You can tell if these Terms have changed by checking the “updated” date that appears above. If you have provided us with your email address and have not opted out of receiving communications from us, we will also notify you of any such substantive change by sending an email at least thirty days before the effective date of the change to the email address you most recently provided to us. We encourage you to keep the email address you provide to us current, and to promptly notify us of any changes to your email address, so that you may receive any notices we send to you regarding substantive changes to the Terms. If you do not agree to the new Terms, you should stop using the websites. Otherwise, the new Terms will take effect after thirty days. Each time you make a purchase on the Site or via any mobile application we offer, you will be required to agree to the then existing version of these Terms to proceed with your purchase. The Terms operative at the time of any purchase will apply to that purchase.
If you have any questions about these Terms, please contact us as described in the section entitled, “How do I contact you?” below.
NOTICE REGARDING DISPUTE RESOLUTION: THESE TERMS CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS YOU AND Smile Baby HAVE AGAINST EACH OTHER ARE RESOLVED (SEE “ARBITRATION AGREEMENT – LEGAL DISPUTES” SECTION BELOW), INCLUDING AN OBLIGATION TO ARBITRATE DISPUTES, WHICH WILL, SUBJECT TO LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING ARBITRATION, UNLESS YOU OPT-OUT IN ACCORDANCE WITH THE “ARBITRATION AGREEMENT – LEGAL DISPUTES” SECTION BELOW.
The prices offered on this Site and in our retail stores may differ because the Site and stores may choose to offer items at different prices or may run different promotional events at different times. For this reason, prices and promotions (e.g., promotion codes or free shipping) offered on this Site may not always apply in stores, and store prices and promotions (e.g., coupons or additional discounts) may not always apply on this Site, unless otherwise stated.
Price comparisons are made to the Manufacturer’s Suggested Retail Price (“MSRP”). MSRP is an estimate of the price at or above which these items have been offered or sold by retailers in the trade area, which may not include Smile Baby . Actual sales may not have been made at MSRP in all trade areas, and the MSRP price may not represent the average or prevailing market price at any particular time. Given the national scale of our offerings, our products may not be sold at MSRP in all locations. Because the MSRP may vary from retail prices in your area, you may want to make a comparison for yourself by checking the prices of other internet or local retailers prior to making a purchase. Percentage reductions are off of MSRP, except where noted.
Smile Baby owns the Site. Smile Baby owns or has rights to all of the wallpaper, icons, characters, artwork, images, graphics, music, text, software and other content of the Site (the “Content”), and all HTML, CGI and other code and scripts in any format used to implement the Site (the “Code”). The Content and Code of the Site are protected by copyright. Except as set forth in these Terms, you may not copy, modify, upload, download, transmit, re-publish, display for redistribution to third parties for commercial purposes, or otherwise distribute any Code or Content from the Site without the prior written agreement of Smile Baby. You may not use the Content or Code from the Site for any purpose other than those set forth above. Smile Baby owns or has the right to use all names, logos and trademarks which appear on the Site. You may not use any of these for any purpose without the prior express written permission of Smile Baby. Your failure to comply with in these Terms will constitute breach of contract and will violate Smile Baby or a third party’s copyright, trademark, and other proprietary and industrial property rights.
The Site is available only for your personal, non-commercial use, which shall be limited to viewing the Site, providing information to the Site, ordering products, and downloading product information for your personal review. Except as expressly provided in these Terms, nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or right under any patent, trademark, copyright, or other proprietary or industrial right of Smile Baby or any third party.
Use Of Information Submitted By You
If you respond to Smile Baby with any information, including but not limited to feedback, data, questions, comments, suggestions, or the like, such information will not be deemed confidential. All such submissions will be deemed the property of Smile Baby, and your submission of information will constitute an assignment to Smile Baby of all worldwide rights, titles, and interests in such information. Smile Baby will not be liable for any use or disclosure of such information. Smile Baby will not have any obligation to keep such information confidential and will be free to reproduce, use, disclose and distribute the information to others without limitation. Smile Baby will be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever, including but not limited to developing, manufacturing, and marketing products that incorporate or otherwise rely upon such information, without any compensation or attribution to you.
Smile Baby welcomes your comments and suggestions on the Site and on Smile Baby products, but it does not seek to solicit any confidential or proprietary ideas, suggestions, materials or other information relating to developing, designing, manufacturing or marketing its products. By submitting information, you warrant that Smile Baby may publish such information, use it as part of its operations, and incorporate its concepts in Smile Baby products without liability.
Users and Accounts
To use certain online services, such as our Rewarding MomentsTM loyalty program, you may need to create an account. If you create an account, you agree you will: (a) create only one account; (b) provide honest, accurate, current and complete information regarding yourself; (c) keep your information updated and accurate; (d) keep your account password private and not share it with others; and (e) notify Smile Baby if you discover or suspect that your account has been hacked or its security breached.
You agree to take responsibility for all activities on or under any account registered to you and you accept all risks for any unauthorized use of your account. You are responsible for providing the equipment and services that you need to access and use the Site. We do not guarantee that the Site will be accessible on any particular equipment or device or with any particular software or service plan.
We reserve the right, without notice and in our sole discretion at any time, to terminate your right to access and use the Site or any component of them and to block or prevent future access to and use of the Site and to delete your account and any related information. Any obligation or liability incurred prior to our termination of your access to the Site will survive such termination.
Responsible Use of the Site
You may use the Site for lawful purposes and in accordance with these Terms. No other use is permitted. Without limiting the foregoing, you may not use the Site: (a) for any purpose that is unlawful or prohibited by these Terms; (b) to cause harm or damage to any person or entity; (c) to interfere with the proper operation of the Site; or (d) to upload, post or transmit any material that violates any law, infringes on the rights of any third party or contains defamatory, libelous, abusive, obscene or otherwise objectionable material (as determined by Smile Baby in its sole discretion). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS Smile Baby AND ITS PARENTS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, FRANCHISEES, AGENTS, LICENSORS, BUSINESS ASSOCIATES, AND SUPPLIERS FROM AND AGAINST ANY ACTUAL OR THREATENED CLAIMS, ACTIONS OR DEMANDS, LIABILITIES AND SETTLEMENTS (INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES) RESULTING (OR ALLEGED TO RESULT) FROM YOUR USE OF THE SITE IN ANY MANNER THAT VIOLATES OR IS ALLEGED TO VIOLATE APPLICABLE LAW OR THESE TERMS.
Provision or Suspension/Withdrawal of the Site
You understand and agree that: (a) the Site may change from time to time without notice to you and that any new feature that augments, enhances, or modifies the current Site is subject to these Terms ; (b) we may decline to provide access to the Site or stop (permanently or temporarily) providing the Site (or any feature, program or content within the Site) to you or other users at our sole discretion, without notice or liability to you; and (c) if we disable access to your account, you may be prevented from accessing the Site, your account details, or any files or other content which are contained in your account.
If you use a mobile device to access the Site, you acknowledge and agree that: (a) you are solely responsible for all message and data charges that apply to use of your mobile device to access the Site or any related services; and (b) all such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status and details. You further understand that service may not be available in all areas at all times and may be affected by product, software, coverage or service changes made by your mobile service provider or otherwise. Additional provisions may apply to your use of our mobile applications based on the type of mobile device that you use. By accessing or using any services via a mobile device, you agree to these Terms, and to any applicable terms of a mobile app you may use.
Smile Baby publishes information on the Site as a convenience to its visitors. Smile Baby product information is provided for informational purposes only. While Smile Baby attempts to provide accurate and timely information, there may be inadvertent technical or factual inaccuracies and typographical errors. We reserve the right to make corrections and changes to the Site at any time without notice. The Smile Baby products described in the Site may not be available in your region. Smile Baby does not claim that the information in the Site is appropriate to your jurisdiction or that the products described in the Site will be available for purchase in all jurisdictions.
Visitors assume all responsibility and risk with respect to their use of the Site. To the fullest extent permitted by applicable law, Smile Baby disclaims all warranties, representations and endorsements, express or implied, with regard to information accessed from or via the Site, including but not limited to all express and implied warranties, such as warranty of title, merchantability, non-infringement and fitness for a particular purpose. Smile Baby does not warrant that the Site is free of computer viruses, bugs or other harmful components. Smile Baby does not warrant that the functions contained in the material will be interrupted or error-free or that errors will be detected or corrected. Smile Baby does not assume any liability or responsibility for the accuracy, completeness, reliability or usefulness of the information disclosed or accessed through the Site. Smile Baby does not have any duty to update the Site or modify its Content or Code, and Smile Baby shall not be liable for its failure to update such information. It is your responsibility to verify any information contained in the Site before relying upon it.
IN NO EVENT SHALL Smile Baby BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF WHATEVER KIND RESULTING FROM WHATEVER CAUSE, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA OR ANY OTHER TYPE OF DAMAGE, TANGIBLE OR INTANGIBLE IN NATURE, WHETHER IN AN ACTION UNDER THEORIES OF CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATING TO THE USE OR PERFORMANCE OF THE INFORMATION ON, OR ACCESSED THROUGH, THE SITE.
Smile Baby reserves the right to withdraw access to the Site and revise the services and products described in the Site at any time without notice.
These Terms constitute the entire agreement between you and Smile Baby’s with respect to the use of this Site. The failure of Smile Baby’s to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.
Arbitration Agreement – Legal Disputes
Initial Dispute Resolution. We are available by email to address any concerns you may have regarding your use of the Site. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration. Please see “How to contact us?” below for more information on how to reach out to us.
Terms Of Service And Binding Arbitration Agreement. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to the “—Initial Dispute Resolution” section above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms (including its performance and breach), the parties’ relationship with each other and/or your use of the Site shall be finally settled by binding arbitration administered by the American Arbitration Association on a non-confidential basis in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms including, but not limited to any claim that all or any part of these Terms are void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The procedures and rules of the Federal Arbitration Act shall exclusively govern the interpretation and enforcement of this arbitration provision and the parties hereby reject, waive, and disclaim the application of any state arbitration act.
The AAA’s rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1.800.778.7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Smile Baby will pay the additional cost. A request for payment of fees should be submitted to AAA along with your form for initiating the arbitration, and Smile Baby will make arrangements to pay all necessary fees directly to AAA. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception — Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30 Day Right To Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the preceding paragraphs by sending written notice of your decision to opt-out to the address below under “How do I contact you?” The notice must be sent within thirty (30) days of agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with the provisions of this section. If you opt-out of these arbitration provisions, Smile Baby also will not be bound by them. If you do not opt out, but subsequently agree to these Terms again via a subsequent purchase or other agreement, you will have the ability to opt out again, but only for claims based on events after that subsequent agreement to the then operative version of these Terms.
Exclusive Venue For Litigation. Solely to the extent the arbitration provisions set forth above do not apply, or for purposes of either party enforcing an award granted to it pursuant to arbitration, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Hawkesbury, Ontario (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Hawkesbury, Ontario for any litigation other than small claims court actions. The Parties irrevocably consent to personal jurisdiction in Hawkesbury, Ontario for any litigation and hereby waive, for all purposes, their right to challenge the lack of personal jurisdiction of any court in such jurisdiction over any litigation arising in connection with, out of, or as a result of (a) these Terms or the Site and (b) any acts or omissions of Smile Baby in connection with these Terms and conditions or the Site.