NewSmile Club Services Agreement
This NewSmile Club Services Agreement (the “Agreement”) is by and between 1240167 B.C. LTD. (“NewSmile Club”), a company incorporated under the laws of the Province of British Columbia and having an office address at 505-318 Homer St. Vancouver BC VB6 2V2, and you (the “Client”). This Agreement shall be effective as of today (the “Effective Date”). Each of NewSmile Club and the Client is a “party” and together they are the “parties”. The terms “you” and “Client” may be used interchangeably in this Agreement and refer to the same person.
WHEREAS:
NewSmile Club is in the business of providing aligners for straightening and/or aligning teeth, and services related to such aligners; and
The Client wishes to purchase aligners and aligner-related services from NewSmile Club, and NewSmile Club has agreed to provide the same to the Client.
NOW THEREFORE, the parties hereto, for good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby agree as follows:
1. Acknowledgement. You acknowledge that NewSmile Club aligners are most effective if your teeth and gums are healthy and agree that it is your responsibility to see a dentist to verify that your teeth and gums are healthy prior to using NewSmile Club aligners. If you are unable to confirm all of the following statements, you are NOT a suitable candidate for NewSmile Club aligners and NewSmile Club cannot provide any services and/or products to you. Click I accept to indicate the following statements are true:
a. Your dentist cleaned your teeth within the last 365 days;
b. Your dentist took x-rays of your teeth within the last 548 days;
c. Your dentist checked for and repaired cavities, loose or defective fillings, crowns
or bridges within the last 180 days;
d. Your dentist checked your x-rays within the last 548 days and you do not have any
shortened or resorbed roots;
e. Your dentist checked your x-rays and you do not have any impacted teeth;
f. Your dentist has probed or measured your gum pockets and you do not have
periodontal or gum disease;
g. Your dentist performed a full oral-cancer screening within the last 6 months and
you do not have oral cancer;
h. You do not have pain in any of your teeth;
i. You have no pain in your jaws;
j. You have no loose teeth;
k. You have no “baby teeth” and all of your permanent teeth are present;
l. In the event that dental work is required after you purchase the NewSmile Club
aligners, you understand that your NewSmile Club aligners may have to be remade
and that you will have to pay a replacement fee; and
m. You have discussed the use of NewSmile Club aligners with your dentist and your dentist does not have any objections to your use of NewSmile Club aligners as a means to straighten and/or align your teeth.
2. Dental Services Not Provided. NewSmile Club does NOT provide dental services but
will refer you to a Canadian accredited dentist (a “NewSmile Club-Affiliated Dentist”) who
works with NewSmile Club and is knowledgeable about NewSmile Club aligners. The NewSmile Club-
Affiliated Dentist will consult with you and develop a plan to improve your smile (the
“NewSmile Club Dental Consultation”). NewSmile Club will provide you with a series of aligners,
made from BPA-free plastics, which will shift your teeth over time. The aligners must be
worn as directed for optimal results. Each new aligner will make subtle changes to your
smile. Typically, you will have to wear the aligners for four to ten months and understand that individual results vary, and that NewSmile Club cannot guarantee any specific results or outcomes. You will not
be required to pay additional fees for the NewSmile Club Dental Consultation with a
NewSmile Club-Affiliated Dentist.
3. Risks. You acknowledge and agree that you are aware that there may be risks related to wearing NewSmile Club aligners and that NewSmile Club is not liable to you for any such risks which may include but are not limited to:
a. Discomfort - You may experience minor to moderate pain and discomfort as the
NewSmile Club aligners move your teeth. You may also experience irritation in your gums, cheeks, or lips. Irritation typically goes away after a short adjustment period. If you experience prolonged pain or irritation, remove the NewSmile Club aligners and contact us right away;
b. Allergic Reaction – It is possible that you may become allergic to
your NewSmile Club aligners. If you have a reaction to the NewSmile Club aligners, please remove the NewSmile Club aligners and contact us right away;
c. Temporary Side Effects – You may experience changes in your speech and
flow of saliva while using NewSmile Club aligners;
d. Cavities, Gum or Periodontal Disease – NewSmile Club aligners, as well as aligners
made by competitors, have been found to cause or increase the occurrence of
cavities, tooth decay, periodontal disease, inflammation of the gums or
permanent markings (e.g. decalcifcation). To help reduce these issues, please be
sure to wear the aligners as directed and to brush and floss your teeth daily
before wearing the NewSmile Club aligners. You should also minimize the amount of sugary foods and beverages you eat or drink. As always, be sure to see a dentist for your dental check-ups as instructed by your personal dentist (every six months or as otherwise directed by your dentist). You may also experience discoloration or white spots on your teeth; small cavities may increase in size, causing sensitivity and in some cases pain or tooth breakage; increased inflammation of gums and surrounding tissue may cause soreness or bleeding. If these conditions persist unchecked, you may experience tooth loss and you may have to discontinue NewSmile Club aligner treatment. All of these symptoms will require you to seek care from a dentist of your choice;
e. Shortening or The Root/Resorption – Some patients may experience resorption
- the shortening of the roots during use of NewSmile Club aligners, and you may
experience such resorption. Risk of resorption increases if you have worn braces
in the past. You may need to discontinue use of the aligners if your dentist
detects resorption. Resorption may lead to tooth loss which will be accelerated
in primary, or ‘baby’, teeth;
f. Damage Nerves In Teeth – Tooth movement may accelerate nerve damage or
nerve death resulting in a root canal, other dental treatment, or loss of the
tooth. Patients who have experienced tooth injury or had restoration work on a
tooth are at higher risk. If your family dentist detects nerve damage prior or
during your NewSmile Club aligner treatment, treatment may need to be discontinued or eventual tooth loss could occur;
g. Temporomandibular Joint Dysfunction (TMJ) – Problems may occur in the jaw
joints during NewSmile Club aligner use causing pain, headaches or ear problems. There may be many factors that can contribute to this outcome, including but not limited to: past trauma or injury, arthritis, hereditary history, tooth grinding or clenching and other medical conditions;
h. Impacted and Supernumerary Teeth – Teeth may become impacted or trapped
below the bone or gums. Sometimes some patients are born with “extra” or supplementary teeth. If you have impacted, unerupted or supplementary teeth, NewSmile Club aligners are not an ideal option;
i. Supraeruption – If a tooth is not properly covered by an aligner, it may migrate outwards (supraeruption) leading to difficulty cleaning, gum disease, tooth decay and loss of tooth;
j. Previous Dental Treatment – NewSmile Club aligners will not move implants and may not be effective on some dental restorations, such as bridges. Additionally, dental restorations, such as crowns, veneers, or bridges, may require replacement due to tooth movement;
k. Oral Piercings – Oral piercings should be removed during treatment. In some circumstances, failure to do so could result in fractured NewSmile Club aligners or broken teeth leading to termination of NewSmile Club aligner treatment;
l. Other Risks – Orthodontic treatment and the movement of teeth bring inherent and potential risks and side effects. In the case of NewSmile Club aligner therapy such risks include, without limitation, discomfort, swelling, sensitivity, numbness, sore jaw muscles, allergic reaction to dental materials, and unforeseen conditions that may be revealed during treatment which may necessitate extension of the original procedures or the recommendation of other patient – specific procedures. Additionally, the tissue attachment between the front teeth may become inflamed which is a common result of aligner therapy. The procedure required to treat this, known as a frenectomy, is not a part of your NewSmile Club treatment, but is a recommended adjunctive treatment for the best outcome and long-term stability of your smile;
m. Safety – NewSmile Club aligners may break, be swallowed or inhaled. You may also have an allergic reaction to the materials used in the NewSmile Club aligners;
n. General Health Problems – Overall medical conditions such as bone, blood or hormonal disorders, and many prescription and non – prescription drugs (including bisphosphonates) can affect the movement of the teeth and the outcome;
o. Duration and Result – The length of time you wear the NewSmile Club aligners and the results depend on many factors, including, without limitation: the severity of your case, the shape of your teeth, or the amount of time you wear the NewSmile Club aligners per day. The average person generally wears the NewSmile Club aligners for four to ten months, but your particular rate of tooth movement is impossible to predict and could take longer. If the duration of your treatment is extended beyond the original estimate, additional fees may occur;
p. Retainers – Teeth may move again after you stop wearing the NewSmile Club aligners. Retainers will be required to keep your teeth in their new positions for a lifetime. Your retainer should be worn full – time for 2 weeks and then nightly from then on. You can expect a retainer to last about one year, but this can vary greatly from patient to patient;
q. Bite Adjustment – Your bite may change during treatment and may result in temporary discomfort. Your bite may require adjustment after use of the NewSmile Club aligners; and
r. Black Triangles – Teeth which have been overlapped for long periods of time may be missing the gum tissue and when these teeth are aligned, a “black triangle” appears below the inter-proximal contact.
4. Telehealth – You hereby consent to engaging in telehealth with NewSmile Club, as part of your NewSmile Club aligner treatment. You understand that “telehealth” includes the practice of health or dental care delivery, diagnosis, consultation, treatment, transfer of medical/dental information, both orally and visually, to a NewSmile Club-Affiliated Dentist. You further consent to NewSmile Club sharing your personal and medical information with third parties, business associates, or affiliates for the purposes of treatment planning and/or manufacturing purposes. You certify that you can read and understand English.
5. No Assurances - You acknowledge that NewSmile Club has not made any guarantees or assurances to you. You have read this Agreement and fully understand the benefits and risks related to your use of NewSmile Club aligners. You acknowledge that you have had an opportunity to discuss and ask any questions to NewSmile Club about the use of NewSmile Club aligners. You understand and agree that NewSmile Club cannot guarantee any specific results or outcomes from the use of NewSmile Club aligners. You further understand that your NewSmile Club invisible aligner treatment will only address the alignment of your teeth and will not correct your existing bite condition. You acknowledge and agree that in order to correct the current condition of your bite, you will need to seek more comprehensive treatment via your own dental professional(s). You acknowledge and agree that because you are choosing not to engage the in – patient services of your own local dental professional(s), your bite or occlusion will be improved by the NewSmile Club aligners and your teeth will be straighter than they currently are but will still be compromised.
6. Photographs - You hereby grant NewSmile Club the right to use photographs (the “Photographs”) taken of your dental treatment and the right to use your first name for educational and/or marketing purposes. You acknowledge that your participation with NewSmile Club is voluntary, and that you will not receive any financial compensation for the use of the Photographs and/or the use of your name by NewSmile Club. You agree that you do not have any right of ownership over the Photographs and/or any right to anything from NewSmile Club other than the NewSmile Club aligners to be provided as part of your treatment.
7. Liability – You acknowledge and agree that you are aware of the potential risks of NewSmile Club aligner treatment and using NewSmile Club aligners and that freely accept all such risks, including but not limited to those risks listed under section 3 of this Agreement in release NewSmile Club from liability for any claims by you or any third party in connection with this Agreement and your use of the NewSmile Club aligner treatment. You hereby waive any and all claims that you have or may in the future have against NewSmile Club, NewSmile Club’s directors, officers, employees and representatives, and NewSmile Club Affiliated Dentists (collectively, the “Releasees”), in connection with this Agreement, your NewSmile Club aligner treatment and/or your use of NewSmile Club aligners. You hereby release the Releasees from any and all liability for any loss, damage, or expense that you suffer as a result of, or in connection with, this Agreement, your NewSmile Club aligner treatment and/or your use of NewSmile Club aligners.
8. Agreement to Arbitrate – You hereby agree that any dispute, question, difference, controversy, or claim arising out of or relating to this Agreement, including any question relating to its existence, interpretation, validity, breach, or termination, and/or in connection with any of the products and/or services provided by NewSmile Club and/or the NewSmile Club-Affiliated Dentist(s), including but not limited to medical malpractice disputes (collectively or individually sometimes referred as “the dispute”) shall be finally resolved by arbitration in accordance with the following procedure, which is intended to be confidential, cost efficient, and timely.
(a) The parties shall act in good faith to select a single arbitrator to hear and determine the dispute by issuing an arbitral award that shall be final, binding, and conclusive and shall not be subject to appeal on a question of fact, law, or mixed fact and law.
(b) If the parties cannot agree on the choice of an arbitrator within 30 days of commencing communication to select an arbitrator, the parties shall forthwith proceed to arbitration pursuant to section 22 of the Arbitration Act, R.S.B.C., (“the Act”).
(c) Unless otherwise agreed to or as set out herein, the parties agree that the process and protocol shall be as set out in Section 22 of the Act.
(d) Arbitration proceedings under this Agreement may be consolidated with other arbitration proceedings pending between the parties including other parties if the arbitration proceedings arise out of the same transaction or relate to the same subject matter. Consolidation shall be by order of the arbitrator upon application by a party. For greater certainty the parties confirm that similar terms or conflict resolution process are set out in the other agreements. The parties confirm that the arbitrator has jurisdiction to make such an order.
(e) The seat of the arbitration shall be Vancouver, British Columbia unless all parties agree in writing otherwise.
(f) The parties agree that the arbitrator shall have jurisdiction to decide the dispute by reference to law, including equity and may order equitable relief including, but not limited to: specific performance, injunction, declaratory relief, rectification, unjust enrichment, quantum meruit or any other equitable remedy.
(g) In addition to the powers of the arbitrator as set out in the Act, the rules set out in section 22 of the Act (namely the BCICAC rules) and those additional powers contained herein:
if the arbitrator is satisfied that there has been an inordinate or inexcusable delay on the part of the Claimant in pursuing its claim and that the delay:
gives rise, or is likely to give rise, to a substantial risk that it is not possible to have a fair resolution of the issues; or
has caused, or is likely to cause, serious prejudice to the Respondent.
the Arbitrator may make an order or award:
dismissing the claimant’s claim; or
prohibiting the claimant from commencing further arbitration proceedings in respect of the claim, if satisfied that the claimant or the claimant’s adviser has unreasonably delayed in bringing or prosecuting the claim;
or both.
If a party fails to comply with an order of the arbitrator, the arbitrator may do any of the following:
direct that the party in default shall not be entitled to rely upon any allegation or material which was the subject matter of the order;
draw such adverse inferences from the act of non-compliance as circumstances justify;
proceed to an award on the basis of such materials as have been properly provided to the arbitrator;
make such order as the arbitrator thinks fit as to the payment of costs of the arbitration incurred in consequence of non-compliance;
make any order or award which is just in the circumstances including dismissing a claim or striking out the respondent’s statement of defense.
(h) The parties agree that the arbitration shall be kept confidential and the existence of the proceeding and any element of it (including but not limited to any pleadings, briefs or other documents submitted and exchanged, and testimony or other oral submissions and any awards) shall not be disclosed beyond the arbitrator, the parties, their counsel and any person necessary to the conduct of the proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or otherwise in which case the parties shall apply to the court of competent jurisdiction that the award shall be sealed. In addition to any other rights a party may have, where one or more parties are in breach of the confidentiality terms set out herein then a party may on application to the arbitrator seek sanctions against the defaulting parties by seeking an order or award of the arbitrator as the arbitrator thinks fit as to the payment of costs of the arbitration, including complete indemnification.
(i) It is a fundamental term of the dispute resolution process set out herein that the parties owe each other a contractual duty to co-operate to progress the proceedings.
(j) The parties agree that they will promptly co-operate with the registration and enforcement of any award made pursuant to section 29 of the Act.
(k) The law with respect to limitation periods applies to any arbitration herein as if the arbitration were an action and a matter in dispute in the arbitration were a cause of action.
(l) The parties agree that, notwithstanding any provision to the contrary in this Agreement, that any liability of NewSmile Club and/or any of the Releasees, and any order or award to be made by the arbitrator against NewSmile Club and/or any of the Releasees, will be limited to the amount of monies paid by the Client to NewSmile Club.
9. Further Assurances. The parties will deliver to each other such further documentation and will perform such further acts as and when the same may be required to carry out and give effect to the terms and intent of this Agreement.
10. Amendment. No amendment to this Agreement will be effective unless evidenced in writing and signed by all parties hereto. Furthermore, no waiver or consent by a party of or to any breach or default by any other party will be effective unless evidenced in writing and executed and delivered by the party so waiving or consenting, and no waiver or consent effectively given as aforesaid will operate as a waiver of or consent to any further or other breach or default in relation to the same or any other provision of this Agreement.
11. Assignment. This Agreement may not be assigned by the Client. Any assignment contrary to the provisions hereof is null and void.
12. Entire Agreement. This Agreement contains the entire agreement between the parties pertaining to the subject matter hereof and supersedes and replaces all previous written and oral agreements between the parties with regard to the subject matter hereof.
13. Counterpart Execution. This Agreement may be executed in counterparts and delivered electronically and such counterparts and electronic transmissions together will form one and the same instrument.
14. Enurement. This Agreement will enure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, personal representatives and permitted assigns.
15. Governing Law. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed by and are to be construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein and treated in all respects as an British Columbia contract. The parties hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of British Columbia and all courts competent to hear appeals therefrom.
