Terms of Service

What the Services are

TrialSmiles offers online and in-office tools that generate a simulated illustration of a smile from a photograph and help connect you with a dental practice. We make these tools available on our own behalf and, under paid engagements, on behalf of independent dental practices, including through pages that carry a practice's branding but are operated by us. Our commercial relationship with those practices, and the limits of what we do and do not vouch for, are described in “Our relationship with dental practices” below.

TrialSmiles:

• is not a dental or medical provider;
• does not provide dental, medical, or healthcare services;
• does not employ or supervise any dentist; and
• does not create a dentist-patient or provider-patient relationship with you.

Nothing in the Services is dental, medical, or professional advice, and nothing in the Services should be relied on as a substitute for an in-person examination by a licensed dentist.

We may modify, suspend, limit, or discontinue any part of the Services at any time, with or without notice.

Eligibility

You must be at least 18 years of age and capable of forming a binding contract to use the Services. By using the Services, you represent and warrant that you meet these requirements and that you are located in the United States.

The preview is a simulation

Any “after” or preview image is an automated, artificially generated simulation provided for illustrative purposes only. It is not:

• a diagnosis;
• an assessment of your dental health;
• a treatment plan;
• a recommendation; or
• a promise, prediction, guarantee, or warranty of any result.

Actual outcomes depend on an in-person evaluation by a licensed dentist and on many factors we cannot observe, and may differ significantly, or entirely, from the preview. You should not make any healthcare, financial, or other decision in reliance on a preview. We expressly disclaim responsibility for any decision you make based on a preview.

Your photograph and content

You represent and warrant that any photograph or other content you upload is of yourself, or that you have obtained all rights, consents, and permissions necessary to upload it and to grant the license below, and that your upload and our use of it do not and will not violate any law or infringe or misappropriate the rights of any person.

You grant TrialSmiles a non-exclusive, worldwide, royalty-free, fully paid, sublicensable license to host, store, reproduce, modify, adapt, process, and transmit your photograph and content in order to:

• operate and provide the Services;
• generate and deliver your preview; and
• disclose your preview and the information you provide to the dental practice you engaged with, all as described in our Privacy Policy.

We will not use your photograph or preview in our own public marketing or advertising without your separate consent.

You may ask us to delete your photograph at any time as described in our Privacy Policy. You retain ownership of your photograph and content.

If you send us feedback, ideas, or suggestions about the Services, you grant us an unrestricted, perpetual, irrevocable, royalty-free right to use them for any purpose without obligation or compensation to you.

Facial images; no biometric identifiers

Our tools alter the appearance of teeth within the photograph you provide. We do not use your photograph to identify you, we do not perform facial recognition, and we do not create, capture, collect, store, convert, transmit, sell, lease, trade, or otherwise use:

• a faceprint or face template;
• a scan of face or hand geometry;
• a voiceprint;
• a retina or iris scan;
• DNA; or
• any other biometric identifier or biometric information, as those terms are defined under applicable law.

To the extent any applicable law would nonetheless characterize your photograph, or our processing of it, as a biometric identifier, biometric information, or sensitive personal information, you expressly and voluntarily consent, when you choose to upload a photograph, to our collection, storage, use, and disclosure of it for the purposes described in these Terms and in our Privacy Policy, and to its retention for the period described in our Privacy Policy. Uploading a photograph is optional; if you do not consent, do not upload one.

No health information; not HIPAA

TrialSmiles is not a healthcare provider, a HIPAA covered entity, or a business associate of any covered entity in connection with the Services, and information you submit to us is not protected health information in our hands.

Do not submit any of the following through the Services:

• medical or dental records;
• treatment history;
• insurance or payment card information;
• government identification numbers; or
• other sensitive personal information.

If you do so, you do so voluntarily and at your own risk, and we may delete it.

Communications

TrialSmiles may send you the preview you request and related transactional and administrative messages. When you submit a form or use the in-office experience, the dental practice you engaged with may contact you directly.

By providing your telephone number, you agree that we and that practice may contact you at that number, including by automatic telephone dialing system, artificial or prerecorded voice, and text message, as described in our Privacy Policy. Consent is not a condition of any purchase. Message and data rates may apply. You may revoke consent at any time as described in our Privacy Policy.

Each dental practice is an independent business and is solely responsible for its own communications with you and for complying with all laws applicable to those communications. If you no longer wish to hear from a practice, contact that practice directly.

Acceptable use

You agree not to:

• use the Services for any unlawful, harmful, deceptive, or infringing purpose;
• upload another person's photograph without permission, or any content that is unlawful, obscene, defamatory, or that infringes or misappropriates any right;
• impersonate any person or misrepresent your affiliation;
• submit false or misleading information;
• interfere with, disrupt, overload, or attempt to gain unauthorized access to the Services or any related systems, accounts, or networks;
• probe, scan, or test the vulnerability of the Services or breach or circumvent any security or authentication measure;
• use any robot, spider, scraper, or other automated means to access, monitor, extract, or copy any portion of the Services or the data they contain;
• reverse engineer, decompile, or attempt to derive the source code, models, methods, or know-how underlying the Services;
• use the Services or their output to develop, train, or improve any competing product, model, or service; or
• remove, obscure, or alter any proprietary notice.

We may investigate and take any action we deem appropriate for a suspected violation, including removing content, suspending or terminating access, and referring the matter to law enforcement, in each case without notice or liability to you.

Intellectual property

The Services, together with all intellectual property rights in them, are and remain the exclusive property of TrialSmiles LLC and its licensors, including all:

• software;
• text, images, designs, and layouts;
• models and workflows;
• scoring and pricing logic; and
• other materials made available through the Services.

Except for the limited, revocable, non-exclusive, non-transferable right to access and use the Services for your own personal, non-commercial purposes in accordance with these Terms, no rights are granted to you, whether by implication, estoppel, or otherwise. TrialSmiles and our logos are our trademarks and may not be used without our prior written permission.

Our relationship with dental practices

Paid commercial relationship. Independent dental practices pay us for marketing services. We design, produce, host, and distribute marketing on their behalf, including practice-branded pages that we operate on our own domain, printed mailings, in-office materials, and the smile-preview experience presented under a practice's brand. You should assume that any dental practice presented to you through the Services has a paid commercial relationship with us and that we are compensated in connection with your inquiry.

No clinical endorsement. That commercial relationship is not a recommendation, referral, certification, or endorsement of any practice's clinical qualifications or quality of care. We do not evaluate, verify, monitor, or vouch for any practice's:

• licensure, credentials, training, or experience;
• disciplinary or malpractice history;
• insurance;
• staffing and facilities;
• pricing; or
• quality, safety, or appropriateness of any care it provides.

We make no representation or warranty regarding any of them. Choosing a dentist is your decision alone. You should independently verify a practice's credentials and satisfy yourself as to its suitability before receiving any care.

No agency or common enterprise. Each dental practice is an independent business. Nothing in the Services, and nothing about any practice-branded or co-branded page, material, or communication, creates or should be understood to create any agency, partnership, joint venture, employment, franchise, or common-enterprise relationship between us and any practice, and neither we nor any practice has any authority to bind, act for, or make commitments on behalf of the other. A practice's use of our pages, tools, or materials does not make it our agent, and our production of a practice's marketing does not make us its agent for any purpose beyond the marketing services we perform.

We do not practice dentistry. We do not:

• own, operate, manage, control, staff, or supervise any dental practice or dental office;
• employ, credential, or supervise any dentist, hygienist, or other clinician; or
• participate in, direct, review, or influence any clinical, diagnostic, or treatment decision.

The practice alone is responsible for:

• the care it provides;
• its own communications with you;
• its own compliance with applicable law; and
• the accuracy of the information and imagery it provides to us or approves for publication.

No liability for practices. To the fullest extent permitted by law, we are not liable for any act, omission, negligence, malpractice, or professional misconduct of any dental practice or of any person it employs or engages, and we are not a party to and have no liability arising out of any relationship, agreement, communication, appointment, treatment, billing, or dispute between you and any practice. Any dispute you have with a practice is between you and that practice.

Other third-party services and links

The Services may also link to or interoperate with websites, applications, and services operated by third parties that are not our clients, such as scheduling, mapping, analytics, and communications providers. We do not control those third parties, do not endorse them, are not responsible for their content, security, availability, or privacy practices, and make no representation or warranty regarding them. Your use of them is governed by their own terms and policies, which you should review before providing information to them.

Disclaimers

THE SERVICES, INCLUDING ANY PREVIEW OR OTHER OUTPUT, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

WE DO NOT WARRANT:

• THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
• THAT DEFECTS WILL BE CORRECTED;
• THAT THE SERVICES OR ANY SYSTEMS ARE FREE OF HARMFUL COMPONENTS;
• THAT ANY DATA WILL BE PRESERVED, SECURE, OR FREE FROM LOSS OR UNAUTHORIZED ACCESS; OR
• THAT ANY PREVIEW OR OTHER OUTPUT WILL BE ACCURATE, COMPLETE, RELIABLE, OR ACHIEVABLE.

NO ADVICE OR INFORMATION OBTAINED FROM US CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to you.

Limitation of liability

TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER TRIALSMILES LLC NOR ITS OWNERS, MEMBERS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, OR SERVICE PROVIDERS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, BUSINESS OPPORTUNITY, OR DATA, ARISING OUT OF OR RELATING TO THE SERVICES OR THESE TERMS, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, OR ANY OTHER THEORY, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THIS LIMITATION APPLIES TO ALL CLAIMS ARISING OUT OF OR RELATING TO THE SERVICES, INCLUDING WITHOUT LIMITATION:

• ANY CLAIM ARISING OUT OF OR RELATING TO ANY UNAUTHORIZED ACCESS TO, OR ACQUISITION, DISCLOSURE, ALTERATION, CORRUPTION, LOSS, OR DELETION OF, ANY PHOTOGRAPH, DATA, OR INFORMATION;
• ANY SECURITY INCIDENT;
• ANY ACT OR OMISSION OF ANY DENTAL PRACTICE OR OTHER THIRD PARTY;
• ANY COMMUNICATION YOU RECEIVE FROM A DENTAL PRACTICE; AND
• ANY DECISION YOU MAKE BASED ON A PREVIEW.

OUR TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE SERVICES OR THESE TERMS WILL NOT EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (US$100) OR THE TOTAL AMOUNT YOU PAID US, IF ANY, IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

THESE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US AND APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the limitation or exclusion of certain damages, so some of the above may not apply to you.

Indemnity

You agree to defend, indemnify, and hold harmless TrialSmiles LLC and its owners, members, officers, employees, contractors, agents, licensors, and service providers from and against any and all claims, demands, actions, proceedings, damages, losses, liabilities, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to:

• your use of or access to the Services;
• any photograph, content, or information you submit;
• your breach of these Terms, of any representation or warranty you make, or of any applicable law;
• your violation of the rights of any person, including any right of privacy, publicity, or intellectual property right; or
• any dispute between you and any dental practice or other third party.

We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which case you agree to cooperate with us.

Dispute resolution; arbitration; class action waiver

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY TRIAL.

Informal resolution first. Before initiating any proceeding, you agree to first contact us at support@trialsmiles.com with a written description of the dispute and the relief you seek, and to attempt in good faith to resolve it informally for at least thirty (30) days. This step is a condition precedent to commencing arbitration.

Binding individual arbitration. If the dispute is not resolved informally, you and we agree that any dispute, claim, or controversy arising out of or relating to the Services, these Terms, our Privacy Policy, or the relationship between us, including the validity, enforceability, or scope of this section, will be resolved exclusively by final and binding individual arbitration administered by the American Arbitration Association under its Consumer Arbitration Rules then in effect, rather than in court. The arbitration will be conducted in the State of Texas or, at your election, by telephone, videoconference, or on the basis of written submissions. The arbitrator's award may be entered in any court of competent jurisdiction. This agreement to arbitrate is governed by the Federal Arbitration Act.

Class action and jury trial waiver. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, COORDINATED, OR REPRESENTATIVE PROCEEDING. The arbitrator may not consolidate the claims of more than one person and may not preside over any form of representative proceeding, and may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide that relief. YOU AND WE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY.

Exceptions. Notwithstanding the above, and without first engaging in informal resolution or arbitration:

• either party may bring an individual action in small claims court for any claim within that court's jurisdiction; and
• either party may seek injunctive or other equitable relief in a court of competent jurisdiction to protect its intellectual property or confidential information or to address unauthorized access to or misuse of the Services.

Your right to opt out. You may opt out of this arbitration and class action waiver section by sending written notice of your decision to opt out to support@trialsmiles.com, with the subject line “Arbitration Opt-Out,” within thirty (30) days after you first accept these Terms. Your notice must include your name and the email address you used with the Services. Opting out will not affect any other provision of these Terms.

Severability of this section. If the class action and jury trial waiver above is found to be unenforceable as to a particular claim or request for relief, then that claim or request will be severed and may be brought only in a court of competent jurisdiction as provided below, and the remainder of this section will continue to apply to all other claims. In no event will any class, collective, or representative claim be arbitrated.

Time limit on claims

To the fullest extent permitted by applicable law, any claim or cause of action arising out of or relating to the Services or these Terms must be commenced within two (2) years after the claim or cause of action accrues, or it is permanently barred.

Governing law and venue

These Terms and any dispute arising out of or relating to them or the Services are governed by the laws of the State of Texas, without regard to its conflict-of-laws rules, except that the Federal Arbitration Act governs the arbitration provision above. Subject to that arbitration provision, you and we consent to the exclusive jurisdiction and venue of the state or federal courts located in the State of Texas and waive any objection to that forum.

Termination

We may suspend or terminate your access to the Services at any time, for any reason or no reason, with or without notice and without liability to you.

Provisions that by their nature should survive termination will survive, including those regarding:

• your content license;
• disclaimers;
• limitation of liability;
• indemnity;
• dispute resolution;
• time limit on claims;
• governing law; and
• the General section below.

Changes to these Terms

We may update these Terms from time to time. When we do, we will revise the effective date above and, where required by law, provide additional notice. Changes are effective when posted unless stated otherwise, and do not apply retroactively to any dispute of which we had notice before the change. Your continued use of the Services after an update constitutes your acceptance of the updated Terms. If you do not agree, stop using the Services.

General

These Terms, together with our Privacy Policy, are the entire agreement between you and us regarding the Services and supersede all prior or contemporaneous understandings on that subject. If any provision is held invalid, illegal, or unenforceable, it will be modified to the minimum extent necessary or severed, and the remaining provisions will remain in full force and effect.

Our failure to enforce any provision is not a waiver of it, and no waiver is effective unless in writing. You may not assign or transfer these Terms or any rights under them without our prior written consent; we may assign them freely, including in connection with a merger, acquisition, reorganization, or sale of assets. These Terms do not create any third-party beneficiary rights, and nothing in them creates any agency, partnership, joint venture, or employment relationship.

We are not liable for any failure or delay in performance caused by circumstances beyond our reasonable control, including:

• acts of God and natural disasters;
• epidemic or pandemic;
• labor disputes;
• war or civil unrest;
• governmental action;
• utility or telecommunications failures;
• internet or hosting outages;
• denial-of-service or other cyberattacks; and
• the acts or omissions of third-party providers.

Notices to us must be sent to TrialSmiles LLC, 5900 Balcones Drive STE 100, Austin, TX 78731, or to support@trialsmiles.com. We may provide notice to you by email, by posting on the Services, or by any other reasonable means.

Contact us

TrialSmiles LLC

5900 Balcones Drive STE 100, Austin, TX 78731

support@trialsmiles.com