EFFECTIVE DATE: OCTOBER 27, 2018
1. ACCEPTANCE AND MODIFICATIONS
Welcome to Backup Brush. Backup Brush LLC (“Backup Brush” “we,” “us,” and “our”) provides the website maintained at https://backupbrush.com and its subpages (the “Site”) and the products and related services available through the Site (the “Services”) to you subject to these Terms of Service (the “Terms”). These Terms establish the terms, conditions, rights and responsibilities applicable to your use of the Site and Services. Unless explicitly stated otherwise, any new features that augment or enhance the current Site and Services shall be subject to these Terms. If you choose to use other features of the Site and Service, additional terms governing your use of those features (“Additional Terms”) may apply in additional to these Terms. Your breach of any these Terms or any Additional Terms causes an automatic termination of the rights and licenses granted to you under these Terms.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE AND SERVICES. BY USING THE SITE AND SERVICES, YOU ARE AGREEING TO COMPLY WITH THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT USE THE SITE OR SERVICES.
We may change these Terms from time to time for any reason. We will notify you of changes prior to those changes taking effect. If you do not agree with the new version, you must stop using the Site and Services and terminate your Account, if you have one.
2. AGE REQUIREMENTS
No one under the age of 18 may use the Site or Services. By using or attempting to use the Site and Services, you represent that you meet the age requirements and that you are able to enter into legally binding contracts, including these Terms.
3. OUR PROPRIETARY RIGHTS
We or our licensors own all intellectual property and proprietary rights, title and interest in and to the Site and the Services, including without limitation the BACKUP BRUSH trademarks and the Site copyrights. Except for the limited use rights granted to you in these Terms, you agree that you do not have and will not acquire any right, title, or interest in any of our intellectual property or other proprietary rights. Any rights not expressly granted in these Terms are expressly reserved. Without limiting the foregoing, you agree that you will not use or display the BACKUP BRUSH trademarks in any manner without our prior written permission.
4. USE OF THE SITE AND SERVICES
We grant you a limited, revocable, non-transferable, non-sublicenseable and non-exclusive license to access and use the Site and Services for their intended purposes (namely, for cleaning product purchases and related services) in accordance with these Terms and any Additional Terms. These limited rights and licenses may be revoked at any time.
When using the Site and/or Services, you agree to comply with all applicable federal, state, and local laws including but not limited to, copyright law. Except as expressly permitted in these Terms, you may not use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit the Site content for any purpose whatsoever without obtaining prior written consent from us or, in the case of third-party content, its respective owner.
You may not cause any harm to or otherwise interfere with the Site and/or Services, by (but not limited to):
- Removing, altering, covering, or distorting any copyright, trademark, or other proprietary rights notice on the Site or Site content;
- Circumventing, disabling or otherwise interfering with security-related features of the Site or Services including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of the Site or Services;
- Using an automatic device (such as a robot or spider) or manual process to monitor the activity on, copy or “scrape” the Site, the Services or their content for any purpose without our express written permission, except for search engines, traffic counters, or similar basic performance monitoring technology;
- Transmitting, using, distributing or uploading programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses, spyware, or other potentially harmful programs or other material or information;
- Forging any TCP/IP packet header or part of the header information in any email or newsgroup posting for any reason;
- Creating an undue burden on the Site or Services;
- Collecting or harvesting any personal information from the Site or Services, including but not limited to user names, passwords, or email addresses;
- Soliciting other users to join or become members of any commercial online service or other organization without our prior written approval;
- Attempting to or interfering with the proper working of the Site or Services or impair, overburden, or disable the same;
- Modifying, creating derivative works from, decompiling, reverse engineering, or disassembling any portion of the Site or Services;
- Using network-monitoring software to determine the architecture of or extract usage data from the Site;
- Engaging in any conduct, or encourage or assist any third party in any conduct, that violates any local, state or federal law, either civil or criminal;
- Engaging in any activity, or encourage or assist any third party in any activity, that violates these Terms;
- Impersonating another user, person, or entity;
- Interfering with or disrupting the access of any user, host or network via any means including without limitation by overloading, flooding, spamming, or linking to coupon sites;
- Violating U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or
- Engaging in any conduct that restricts or inhibits any other user from using or enjoying the Site or Services.
You will cooperate with us to investigate any suspected or actual activity that we suspect may be in breach of these Terms.
5. ACCEPTABLE USE POLICY
Your use of the Site and Services constitutes your agreement that all Comments that you upload, store, submit and/or use comply with the following guidelines for your use of the Site and Services (“Acceptable Use Policy”). We do not review Comments before they are uploaded or stored to the Website. You are solely responsible for evaluating all of your Comments against the Acceptable Use Policy. By uploading Comments to the Site and Services, you accept sole liability and responsibility for any of your Comments that do not comply with the Acceptable Use Policy.
We have the right, but do not assume the obligation, to monitor Comments, and to determine whether they comply with these Terms, including without limitation the Acceptable Use Policy. We have the right in our sole discretion and for any reason whatsoever to edit, refuse to post, refuse to store, remove, or disable access to any Comments.
a. General Categories of Prohibited Comments. Your Comments violate this Acceptable Use Policy and are prohibited from the Site and Services if they:
- Contain hateful or racist terms or images or symbols, or glamorize the actions of individuals or groups advocating ethnic cleansing, genocide, or similar activities;
- Are harassing, threatening, abusive, libelous, defamatory, or invasive of privacy or publicity rights;
- Impersonate another;
- Depict or promote violence or suicide;
- Include the likeness of a minor;
- Include or reveal the personal information of another person;
- Contain a formula, instruction, or advice that could cause harm or injury;
- Are vulgar, obscene, profane, pornographic, or otherwise objectionable or in bad taste, as determined by Backup Brush; or
- Constitute or encourage conduct that would constitute fraud, a criminal offense, give rise to civil liability, or otherwise violate any applicable law or regulation.
b. Comments Prohibited Under Intellectual Property Laws. Your Comments also violate this Acceptable Use Policy and are prohibited from the Site and Services if they may violate or infringe in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity. Some examples of Comments that should not be uploaded or submitted to the Site and Services include:
- The names, logos, pictures or other intellectual property of musical groups or musical artists, sports teams, colleges or universities, clubs, organizations, associations;
- Photos, logos, caricatures or other artwork depicting actors, actresses, musical artists, or other celebrities;
- The trademarks, logos, or names of companies; or
- Pictures or photographs of products (including but not limited to toys).
The above list only provides examples of submissions that may violate the intellectual property and other proprietary rights of third parties, and is not exhaustive. If you have questions about whether content or materials you would like to upload to the Site may violate the intellectual property or other proprietary rights of another person, you should speak with an attorney.
6. TERMS OF SALE
Backup Brush sells cleaning products on a recurring subscription plan (“Subscribers”) to have the products shipped regularly on a schedule of the Subscriber’s choosing only for their own personal, non-commercial use (the “Subscription”). You may not purchase Subscriptions for further distribution or resale or for any other commercial or business purpose. The Subscription and all rights and privileges conferred are personal and non-transferable.
6.2 Products and Product Pricing
The price that we will charge you for the Subscription depends on the Subscription chosen and the products in each Subscription. (each a “Pack”) Pricing for Subscriptions (including any applicable shipping and handling fees) can be found on the “get-started” page. Subscribers may view or customize the products in each Pack by visiting the “My Pack” page. By changing products in a Pack, or changing your Subscription, this may change the price that we will charge you for the Subscription. We reserve the right to change a Subscription price at any time, with appropriate notice to you.
6.3 Subscriptions and Promotions
Subscribers will receive their Pack shipped regularly based on the Subscription selected (each a “Backup Pack”). Backup Brush will bill your credit, debit, or other Company-accepted payment method (“Payment Method”) for the applicable Backup Pack based on your Subscription, unless you cancel your Subscription in accordance with Section 6.8.
To view the specific details of your Subscription, including frequency of shipments and next payment date, visit our website and click on “Login.”
Backup Brush reserves the right, in its absolute discretion, to withdraw or modify any Subscription offering, or promotion at any time without prior notice and with no liability. Any and all Subscriptions, offers, or promotions advertised on the website are void where prohibited, and are subject to the posting of any official rules to such offers or promotions.
6.4 Processing Orders
If any problems arise with your order, or with the shipping address or Payment Method associated with your Subscription, and Backup Brush is unable to resolve the problem, we may notify you via e-mail using the address associated with your Subscription. It is important that you keep your information current with an accurate email address that you regularly check. If problems arise with your order that we cannot resolve, your order may be cancelled and we may not be able to process future Backup Packs until the problem has been resolved.
If you are dissatisfied with your Subscription for any reason, we will refund the amount paid for the most recent Pack received. Refund requests must be made directly to us at email@example.com within 30 days of the date of shipment by Backup Brush. We are not liable for Packs that are damaged or lost in transit to Backup Brush. Promptly following Backup Brush’s receipt of your request (typically within five (4) business days), Backup Brush will credit the amount paid for the returned Pack (less any shipping and handling costs/fees related to the original purchase, which are non-refundable) to the Payment Method you used to make the original purchase. Notwithstanding the foregoing, Backup Brush does not control when a specific credit card or payment method company processes a chargeback transaction.
We will not provide a refund for a request that is received by Backup Brush more than 30 days after the date of original shipment. We also do not provide a refund for returned Packs that are damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use.
6.6 Recurring Subscriptions; Automatic Renewal
Backup Brush will automatically renew your Subscription and charge your Payment Method depending on the Subscription chosen by you and, as authorized by you by agreeing to the automatic renewal of your Subscription during the Subscriber sign-up process. The date of your renewal payment (“Next Payment Date”) can be seen in your account.
Your Payment Method will be charged on your Next Payment Date. We will charge your Payment Method with the applicable cost for your Subscription, along with any shipping and handling costs and sales or similar taxes that may be charged with your Subscription.
To avoid being charged, you must skip or cancel your Subscription at least one full business day prior to your Next Payment Date. We will continue to bill your Payment Method on a recurring basis (depending on the Subscription selected) until you skip or cancel.
6.7 Modifying Subscriptions; Shipping Frequency and Products
Subscribers will be shipped a Pack based on the Subscription chosen.
Subscribers can skip their next shipment to temporarily pause their Subscription (“Pause Period”). To avoid being charged, Subscribers must skip their next delivery at least one full business day before their Next Payment Date. During the Pause Period, Subscribers will remain active Subscribers, but they will not receive any Packs. A Subscriber’s Subscription may be placed on a Pause Period for either a one, two, or three periods. During the Pause Period, Subscribers will remain active, continue to receive communications from Backup Brush via email, but will not be charged. Subscribers who are in a Pause Period may resume receiving Backup Brush Products by contacting customer support at firstname.lastname@example.org.
Subscribers can change their Pack (“Change Pack”). Subscribers who Change Packs will be shipped the new Pack at the start of their next period. Subscribers must Change Packs at least one full business day before their Next Payment Date.
6.8 Subscription Cancellation
You may cancel your Subscription at any time from the My Pack page on the Backup Brush website. To cancel a Subscription, click on the “Cancel Subscription” link, then follow instructions towards cancellation. Cancellation requests submitted in this manner must be received at least one full business day prior to your Next Payment Date to avoid being charged for the next Pack. Cancellation requests received by Backup Brush through other channels may take up to five (4) business days to process. If you have any problems, please email us at email@example.com.
6.9 Referral Program
Backup Brush offers a Referral Program that allows Subscribers to earn promotional credits towards future Packs by referring their friends, family, or other individuals to Backup Brush. Subscribers get an automatic discount on future Packs for each referral. Referrals can be tracked in the Subscriber’s account on the Backup Brush website.
a. Third Party Links. The Site and Services may provide links to third-party websites, advertisements, or resources. Because we have no control over such sites, advertisements, or resources, we are not responsible for the availability of such external websites or resources, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such third-party sites or resources. We are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any such content, goods, or services available on or through any such third-party website or resource.
b. Linking to the Site. By linking to the Site, you will not misrepresent your relationship with us or present false or misleading impressions about us. No hyperlinks to the Site may be used in a manner that implies or suggests that we approve or endorse you, your website, on your social media accounts, or your goods and services. We will have no responsibility or liability for any content appearing on your website or social media accounts. No link may appear on any page on your website, on your social media accounts, or within any context containing content or materials that may be interpreted as libelous, obscene, or criminal, or which infringes, otherwise violates, or advocates the infringement or other violation of, any third party rights. Images of the Backup Brush logo may not be used to link to the Site without our prior, express written permission. We reserve the right, at any time and in our sole discretion, to request that you remove from your website and/or social media accounts all links to the Site or any of its contents. Upon our request, you agree to immediately remove all links to the Site. Thereafter, your posting of any future links to the Site will require our express written permission.
You agree to indemnify, defend, and hold Backup Brush and its parents, subsidiaries, related companies, and controlled affiliates, and its and their respective members, officers, directors, employees, agents, partners, licensors, service providers, strategic partners, and distribution partners (collectively, the “Indemnified Parties”), harmless in connection with any third-party claims, liabilities, losses, damages, obligations, costs, and expenses (including but not limited to reasonable attorneys’ fees and costs) (“Claims”) arising out of or relating to your use of the Site or Services, your Comments, your breach of these Terms (including but not limited to the Shipping and Return Policy and any other Additional Terms incorporated by reference herein), or your acts and omissions relating to any of the foregoing. We have the right to control the defense, settlement and/or other resolution of any Claims, at your sole cost and expense. You may not settle or otherwise resolve any Claim without our express written permission.
9. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. THE SITE, SERVICES, THE SITE CONTENT, AND ALL PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT OF THE LAW, THE INDEMNIFIED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING ANY: (A) WARRANTIES THAT THE SITE, SERVICES, SITE CONTENT, AND/OR ANY PRODUCTS OR SERVICES PURCHASED ON OR THROUGH THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS; (B) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE SITE, SERVICES, SITE CONTENT, AND/OR ANY PRODUCTS OR SERVICES PURCHASED ON OR THROUGH THE SITE OR SERVICES; (C) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (D) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE AND/ OR SERVICES OR ACCESSED THROUGH THE SITE AND/ OR SERVICES; (E) WARRANTIES CONCERNING THE CAPACITY, COMPLETENESS, ACCURACY, OR RELIABILITY OF THE INFORMATION OR RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE AND/OR SERVICE; (F) WARRANTIES THAT YOUR USE OF THE SITE WILL BE SECURE OR UNINTERRUPTED; AND (G) WARRANTIES THAT THE SITE, SERVICES AND/OR SITE CONTENT WILL BE ERROR-FREE OR THAT ERRORS IN THE SITE, SERVICES AND/OR SITE CONTENT WILL BE CORRECTED. WE ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO PROVIDE ANY CONTENT OR TO STORE ANY PERSONALIZATION SETTINGS OR CONTENT. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE OR SERVICES IS DOWNLOADED AND USED AT YOUR SOLE DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SITE OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
10. LIMITATION OF LIABILITY
WE MAY USE THIRD PARTIES TO PROVIDE CERTAIN SERVICES ACCESSIBLE THROUGH THE SITE. WE WILL NOT BE LIABLE TO YOU FOR THEIR ACTS OR OMISSIONS.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, THE NEGLIGENCE OF ANY PARTY, WILL THE INDEMNIFIED PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF LOSS OF USE, DATA LOSS, OR OTHER INTANGIBLE LOSSES (EVEN IF THE INDEMNIFIED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH YOUR USE OF, OR YOUR INABILITY TO USE, THE SITE OR SERVICES, UNDER ANY THEORY OF LIABILITY. YOUR SOLE REMEDY, AND OUR AGGREGATE LIABILITY IN CONNECTION WITH THESE TERMS OR YOUR USE OF THE SITE OR SERVICES SHALL IN ALL EVENTS BE LIMITED TO THE GREATER OF FIFTY DOLLARS ($50.00) OR THE INVOICED AMOUNT PAID TO US FOR THE PRODUCTS GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE PROVISIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE FULLEST EXTENT OF THE LAW.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT WE WILL NOT BE LIABLE FOR THE ILLEGAL, OFFENSIVE OR DEFAMATORY CONDUCT OF OTHERS, INCLUDING BUT NOT LIMITED TO ANY SUCH CONDUCT BY YOU, AND THAT YOU BEAR ALL RISK AND LIABILITY ASSOCIATED WITH YOUR CONDUCT AND CONTENT.
YOU HEREBY RELEASE BACKUP BRUSH AND ITS PARENTS, SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE OWNERS, OFFICERS, DIRECTORS, MANAGERS, REPRESENTATIVES, AFFILIATES, SUCCESSORS, ASSIGNS, AGENTS, SHAREHOLDERS, EMPLOYEES AND BUSINESS PARTNERS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SITE AND/OR SERVICES. IF YOU ARE A RESIDENT OF CALIFORNIA, YOU WAIVE CALIFORNIA CIVIL CODE § 1542 WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IS KNOWN BY HIM MUST HAVE MATERIALLY AFFECTIVE HIS SETTLEMENT WITH THE DEBTOR.”
12. DATA PRIVACY
13. DISPUTE RESOLUTION
All disputes relating to the interpretation of these Terms or the rights of the parties hereunder will be exclusively settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. Disputes involving $75,000 or less shall use the AAA’s Expedited Rules. The parties shall mutually agree upon a single commercial arbitrator, and in the absence of agreement, the AAA shall select the arbitrator. The place of arbitration will be Chicago, Illinois. The parties will share equally in the costs of arbitration payable to the AAA, including the arbitrator. The award of the arbitrator will be accompanied by a reasoned opinion. Judgment on an arbitration award may be entered in accordance with the Federal Arbitration Act in any federal court having jurisdiction. You acknowledge and agree that you and Backup Brush are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Backup Brush otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. The parties to this agreement may, notwithstanding the above, seek equitable relief in any proper court to enjoin a breach or threatened breach of any obligations under this agreement that might cause irreparable harm (without any requirement to post bond).
a. Governing Law. These Terms and the relationship between you and us shall be governed by the laws of the State of Illinois without regard to its conflict of law provisions.
b. Waiver and Severability of Terms. The failure of Backup Brush 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 by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the invalid or unenforceable provision, and all other provisions of these Terms shall remain in full force and effect.
c. No Contest. Our electronically or otherwise properly stored copy of these Terms will be deemed to be the true, complete, valid, authentic, and enforceable copy, and you agree that you will not contest the admissibility or enforceability of our copy of these Terms in connection with any action or proceeding arising out of or relating to these Terms.
d. Assignment. We may assign our rights and duties under these Terms at any time to any third party without notice. You may not assign these Terms without our prior written consent.
e. No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in the Terms, there shall be no third party beneficiaries to these Terms.
f. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Site, Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
g. Section Titles. The section titles in these Terms are for convenience only and have no legal or contractual effect.
h. Entire Agreement. These Terms (together with the Shipping and Return Policy, SMS and MMS Policy, and any other any Additional Terms incorporated by reference herein) constitute the entire agreement between you and us with respect to your access to and use of the Site and Services, and any and all other written or oral agreements or understandings previously existing between you and us with respect to the subject matter hereof are hereby superseded and cancelled.
i. Force Majeure. Failure by either party to perform any obligation hereunder shall be excused if and for so long as such breach or failure to perform is caused by a force majeure event, and prompt notice thereof has been given to the other party. If either party fails to perform any duty or obligation hereunder as a result of a force majeure event, such party shall be required to fulfill its obligations hereunder within a reasonable time frame after the force majeure event ceases to exist.