Welcome to SymplBrush! PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“TERMS”) CAREFULLY. THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU AND ALKE, LLC (“SYMPLBRUSH,” “WE,” “US” OR “OUR”) governing: (A) your use, and SymplBrush’s provision to you, of SymplBrush.com or any other website of SymplBrush with a link to these Terms (the “Site(s)”), (B) your purchase of any product we sell on our Site, and (C) your use of SymplBrush Products, and any content, information, services, features or resources available or enabled via the Site or our SymplBrush Products (collectively, the “Services”). Your use of the Services may be subject to any additional terms, conditions and policies that we separately post on the Services and any agreements that you have separately executed with SymplBrush (“Supplemental Terms”) which are incorporated by reference into these Terms, (together, the Agreement”). To the extent there is any conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement.
BY ACCESSING OUR WEBSITE, USING OUR SERVICES, OR ANY PORTION THEREOF, YOU ACKNOWLEDGE AND AGREE THAT: (i) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT; (ii) YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD AND RESIDE IN THE UNITED STATES, OR, IF YOU ARE UNDER EIGHTEEN (18) YEARS OLD (OR UNDER THE AGE OF MAJORITY WHERE YOU LIVE), YOU HAVE REVIEWED THE AGREEMENT WITH YOUR PARENT OR LEGAL GUARDIAN AND THEY AGREE TO THE TERMS OF THIS AGREEMENT ON YOUR BEHALF AND TAKE FULL RESPONSIBILITY FOR YOUR COMPLIANCE WITH THE AGREEMENT; AND (iii) YOU ARE NOT A PERSON OR ENTITY BARRED FROM USING THE SERVICES UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION. YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE ENTITY THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT OR OTHERWISE ACCESSING OR USING THE SERVICES IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY AGREE THAT: (A) THE TERM “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY AND SUCH INDIVIDUAL; AND (B) THAT THE INDIVIDUAL ENTERING INTO THIS AGREEMENT HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY.
IF YOU OPT-IN TO OUR SUBSCRIPTION-BASED PROGRAM FOR BRISTLE REFILLS, THEN YOUR SUBSCRIPTION FOR SUCH REFILLS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM OF YOUR SUBSCRIPTION AT SYMPLBRUSH’S THEN-CURRENT FEE FOR SUCH SUBSCRIPTION SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 9.3 (AUTOMATIC RENEWAL) BELOW.
SECTION 17 OF THESE TERMS CONTAINS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 17. FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT IF YOU DESIRE TO DO SO.
1. OUR SERVICES. SymplBrush provides a mouthpiece toothbrush (including a handheld cradle and bristle inserts), and SymplPaste toothpaste (collectively, the “SymplBrush Product”) for purchase directly through our Site. Users may elect to subscribe to our refill system to receive new bristles for use with the SymplBrush Product. See Section 9.3 for additional information on our subscription program.
2. SYMPLBRUSH PROPERTIES. The Site, and the Services, and the information and content available on the Site and the Services (as these terms are defined herein) (each, a “SymplBrush Property” and collectively, the “SymplBrush Properties”) are protected by U.S. intellectual property laws. Unless otherwise specified by SymplBrush in a separate license, your right to use any and all SymplBrush Properties is subject to the Agreement. Subject to the Agreement, SymplBrush grants you a limited license to reproduce portions of the SymplBrush Properties for the sole purpose of using the Services for your personal purposes.
2.1 Certain Restrictions. By accessing and using the SymplBrush Properties, you agree that you will not, and will not permit any third party to: (a) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the SymplBrush Properties, whether in whole or in part, or any content displayed on the SymplBrush Properties; (b) frame or utilize framing techniques to enclose any trademark, logo, or other SymplBrush content (including images, text, page layout or form) of SymplBrush; (c) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the SymplBrush Properties; (d) access or use the SymplBrush Properties in order to build a similar or competitive website, product, or service; and (e) copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means any part of the SymplBrush Properties, except as expressly permitted herein. Unless otherwise indicated, any future release, update, or other addition to the functionality of the SymplBrush Properties shall be subject to this Agreement. All copyright and other proprietary notices on the SymplBrush Properties (or on any content displayed on the SymplBrush Properties) must be retained on all copies thereof.
2.2 Updates. You understand that the SymplBrush Properties are evolving. As a result, SymplBrush may require you to accept updates to the SymplBrush Properties. You acknowledge and agree that SymplBrush may update the SymplBrush Properties with or without notifying you. You may need to update third-party software and agree to third-party terms from time to time in order to use the SymplBrush Properties.
2.3 No Support or Maintenance; Necessary Equipment. You acknowledge and agree that SymplBrush will have no obligation to provide you with any support or maintenance in connection with the Services. To the extent that SymplBrush does provide support (including via email or live chat), you agree that Section 13 shall apply. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
3.1 Registration and Account Creation. In order to access certain portions of the Site and purchase the SymplBrush Product, you may need to register or create an account on the Services (“Account”) and provide certain information about yourself as prompted by the account registration form, including (but not limited to) an email address, password, telephone number, and birthdate. You agree to provide information required for your use of the Services that is, and to update such information so it remains, true, accurate, current and complete. SymplBrush reserves the rights to establish eligibility criteria to use the Services, and in some cases, at our sole discretion, impose limitations or restrictions on certain Accounts including, but not limited to, deletion of Accounts.
3.2 Social Networking Site. If you access the Services through a social network service (“SNS”) as part of the functionality of the Services, you may link your Account with a SNS, by allowing SymplBrush to access your SNS, as is permitted under the applicable terms and conditions that govern your use of each SNS. You represent that you are entitled to grant SymplBrush access to your SNS account (including, for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable SNS. By granting SymplBrush access to any SNS accounts, you understand that SymplBrush may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services that you have provided to and stored in your SNS account (“SNS Content”) so that it is available on and through the Services. Unless otherwise specified in this Agreement, all SNS Content shall be considered to be User Content (as defined below). Depending on the SNS account you choose and subject to the privacy settings that you have set in such SNS account, personally identifiable information that you post to your SNS account may be available on and through the Services.
3.3 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify SymplBrush of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. You agree not to create an Account using a false identity or false information, or on behalf of someone other than yourself. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. SymplBrush cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
4. SYMPLBRUSH COMMUNICATIONS
4.1 Generally. You may have the opportunity to provide us with your phone number or e-mail address. By providing your phone number or email address to us, you consent to receive SMS/text messages, and email communications from SymplBrush. Communications from us may include communications about your use of the Services.
4.2 Promotional Email Communications. If you opt-in to receive marketing or promotional email or SMS messages communications from us, you will have the ability to opt out of receiving such communications by following the unsubscribe instructions in the communication itself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS OR SMS MESSAGES AS A CONDITION OF USING THE SERVICES. CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE SITE OR SERVICES.
4.3 Electronic Communications. The communications between you and SymplBrush use electronic means, whether you use the Services or send us emails / SMS messages, or whether SymplBrush posts notices on the Services or communicates with you via email or SMS messages. For contractual purposes, you (a) consent to receive communications from SymplBrush in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SymplBrush provides to you electronically satisfy any legal requirement that such communications would satisfy if they were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
5. RESPONSIBILITY FOR CONTENT.
5.1 Content. You acknowledge that all information supplied in connection with the Services (“Content”) is the sole responsibility of the party from whom such Content originated. You are solely responsible for your User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Services (e.g., reviews you provide on the Site). You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate Section 7. You further represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display your User Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in your User Content. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by SymplBrush. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates Section 7. SymplBrush is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content.
5.2 License to Your Content. You hereby grant (and you represent and warrant that you have the right to grant) to SymplBrush an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in connection with the SymplBrush Properties. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the SymplBrush Properties, you hereby expressly permit SymplBrush to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
5.3 No Obligation to Pre-Screen Content. You acknowledge that SymplBrush has no obligation to pre-screen Content (including, but not limited to, User Content), although SymplBrush reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that SymplBrush pre-screens, refuses or removes any Content, you acknowledge that SymplBrush will do so for SymplBrush’s benefit, not yours. Without limiting the foregoing, SymplBrush shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
6.1 The SymplBrush Properties. Except with respect to Your Content and User Content, you agree that SymplBrush and its suppliers own all rights, title and interest in the SymplBrush Properties, and you agree that you have no right, title or interest in or to any Content that appears on or in the SymplBrush Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any of the SymplBrush Properties.
6.2 Trademarks. All trademarks, logos and service marks (“Marks”) displayed on the SymplBrush Properties are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks. All goodwill generated from the use of any SymplBrush Marks will inure to SymplBrush’s benefit.
6.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to SymplBrush through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that SymplBrush has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to SymplBrush a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of our Services, the SymplBrush Properties and/or SymplBrush’s business.
7. Acceptable Use Policy.
You agree not to: (i) use the SymplBrush Properties to upload, transmit, display, or distribute any User Content that (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (b) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party, or is otherwise objectionable; (ii) upload, transmit, or distribute to or through the SymplBrush Properties any computer viruses, worms, or any software intended to damage or alter a computer system or data; (iii) interfere with, disrupt, or create an undue burden on servers or networks connected to the SymplBrush Properties, or violate the regulations, policies or procedures of such networks; (iv) attempt to gain unauthorized access to the SymplBrush Properties (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (v) interfere with any other user’s use and enjoyment of the SymplBrush Properties; (vi) impersonate any person or entity, including any employee or representative of SymplBrush; or (vii) use software or automated agents or scripts to produce multiple accounts on the SymplBrush Properties, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
8. Third Party Providers.
8.1 Third-Party Links and Applications. The SymplBrush Properties may contain links to third-party websites, applications and services (“Third-Party Services”). When you click on a link to a Third-Party Service, we will not warn you that you have left the SymplBrush Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of SymplBrush. SymplBrush is not responsible for any Third-Party Services. SymplBrush provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Site, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9. Fees and Purchase Terms.
9.1 Fees and SymplBrush Product Term. You may place an order for a SymplBrush Product through our Site (an “Order”). All details on the SymplBrush Product can be found here: http://www.symplbrush.com/products/symplbrush
9.2 Payments Made through the Site. To pay for an Order, you will need to provide SymplBrush with the information necessary to process an Order from you, including your shipping address and the billing information requested on the Site to pay for such Order. You may pay for your Order via Shopify or Stripe as described above. We shall not be liable in the event your children or others acting with or without your permission use your credit card or other means of payment to make purchases on the Site (and to the extent your minor children make any such purchases, you hereby represent and warrant that they are authorized to do so); however, you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your card.
Automatic Renewal. You may choose to opt-in to our subscription-based program to receive bristle refills for your SymplBrush Product (the “Subscription”). You will be responsible for payment of the applicable fees in connection with your Subscription (each, a “Subscription Fee”) at the time you elect such Subscription, (each, a “Subscription Commencement Date”). Except as set forth in the Agreement, all fees in connection with a Subscription are non-refundable. Your Subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial Subscription period, and again after any subsequent Subscription period, your Subscription will automatically commence following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at SymplBrush’s then-current price for such Subscription. You agree that your account will be subject to this automatic renewal feature unless you cancel your Subscription at least one (1) day prior to the Renewal Commencement Date, by logging into and going to the “Membership” page of your “My Account” page. If you do not wish for your Subscription to renew automatically, or if you want to change or terminate your Subscription, please log in and go to the “Membership” page of the “My Account” section of our website. If you cancel your Subscription, you may use your Subscription until the end of your then-current Subscription term; your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Consumer Premium Subscription Fee paid for the then-current Subscription period. By subscribing, you authorize SymplBrush to charge your selected payment method now, and again at the beginning of any subsequent Subscription period. Upon renewal of your Subscription, if SymplBrush does not receive your payment (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that SymplBrush may either terminate or suspend your Subscription and continue to attempt to charge your selected payment method until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new Subscription commitment period will begin as of the day payment was received).
9.3 Taxes and Fees. Unless otherwise indicated, the prices listed on the Site do not include sales tax, shipping, and handling charges. You will have the opportunity to review SymplBrush Product prices and the estimated sales tax, shipping, and handling charges prior to submitting your Order or completing the checkout process. The final calculation of the actual sales tax collected, which will be calculated in accordance with the tax code of the city and state to which the order will be shipped, will be reflected in your Order confirmation e-mail and packing slip. Except for sales tax which is collected by SymplBrush, prices for SymplBrush Products exclude all other taxes, duties, levies or fees, or other similar charges imposed on you by any taxing authority related to your Order. You are responsible for payment of such taxes, duties, levies, fees or other similar charges resulting from your Order (other than taxes imposed on SymplBrush's income) and we are not responsible for collecting, reporting, paying, remitting to you any such taxes, fees, or charges.
10. Terms of Sale.
These Terms shall govern any Order you place through the Site for SymplBrush Products.
10.1 Order Acceptance. When you place an Order, we will confirm your Order by sending an email to the email address you have provided to verify your Order. Your placement of an Order through our Site is an offer to purchase the SymplBrush Product ordered and we may accept your Order by processing your payment and shipping the SymplBrush Product(s). Your receipt of an electronic or other form of Order confirmation does not signify our acceptance of your Order, nor does it constitute confirmation of our offer to sell. Your Order will be deemed accepted by SymplBrush upon our delivery of the SymplBrush Product that you have ordered. We may require additional verifications or information before accepting any Order.
10.2 Shipping. SymplBrush ships SymplBrush Products purchased through the Site to street addresses within the contiguous United State. Not all delivery options are available in all areas. Not all SymplBrush Products are available in all areas. The risk of loss and title for items you purchase pass to you upon our delivery of the items to the carrier. Replacement of SymplBrush Products and credits for shipped SymplBrush Products claimed as not received are subject to investigation, which may include notifying the carrier. Your SymplBrush Product shipment will be delivered via FedEx, UPS, USPS, any other carrier we may engage. You hereby consent and authorize SymplBrush to share any shipping information with third-party logistics service provider(s) to the minimum extent required to complete your Orders. You will receive email confirmation(s) as your order ships from SymplBrush or a third party authorized by SymplBrush. We do not allow address changes after we send such email confirmation of your Order shipment.
10.3 Tracking your order. As your Order ships, we will send you an email providing the shipment tracking number(s). To see the detailed progress of your shipment, click on the tracking number link provided in your email. Please note that tracking detail may not be active immediately with FedEx or any other carrier we engage; in that case, check back in several hours or the following day.
10.4 Return Policy. You may request a return for the SymplBrush Product in accordance with our return policy found here: http://www.symplbrush.com/faq
10.5 Restriction on Resale. You acknowledge that the Site is only intended to be used to purchase products for personal, non-commercial use. SymplBrush Products sold on the Site are not authorized for resale. SymplBrush reserves the right to decline any Order that we deem to possess characteristics of reselling.
11. Indemnification. You agree to indemnify and hold SymplBrush, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “SymplBrush Party” and collectively, the “SymplBrush Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any SymplBrush Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any users of the Services; or (e) your violation of any applicable laws, rules or regulations. SymplBrush reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with SymplBrush in asserting any available defenses. This provision does not require you to indemnify any of the SymplBrush Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the SymplBrush Properties.
12. DISCLAIMER OF WARRANTIES AND CONDITIONS.
12.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 13.3, YOUR USE OF THE SYMPLBRUSH PROPERTIES IS AT YOUR SOLE RISK, AND THE SYMPLBRUSH PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. SYMPLBRUSH PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SYMPLBRUSH PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE INFORMATION, CONTENT, AND DATA ON THE SERVICES ARE ACCURATE; (3) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SYMPLBRUSH PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SYMPLBRUSH PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
12.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT SYMPLBRUSH PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SYMPLBRUSH PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. SYMPLBRUSH MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SYMPLBRUSH MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SYMPLBRUSH PROPERTIES.
12.3 Limited Product Warranty. For SymplBrush Products, the only warranty is the Limited Warranty Policy described here: http://www.symplbrush.com/faq
13. LIMITATION OF LIABILITY.
13.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL SYMPLBRUSH PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT SYMPLBRUSH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF SYMPLBRUSH PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SYMPLBRUSH PROPERTIES OR SYMPLBRUSH PRODUCTS; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SYMPLBRUSH PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SYMPLBRUSH PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE SYMPLBRUSH PROPERTIES OR SYMPLBRUSH PRODUCT, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SYMPLBRUSH PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A SYMPLBRUSH PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A SYMPLBRUSH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL SYMPLBRUSH PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) ONE HUNDRED DOLLARS ($100.00) and (B) THE AMOUNT YOU HAVE PAID TO SymplBrush under this agreement. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SYMPLBRUSH PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A SYMPLBRUSH PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A SYMPLBRUSH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
13.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SYMPLBRUSH AND YOU.
14.1 Violations. If SymplBrush becomes aware of any possible violations by you of the Agreement, SymplBrush reserves the right to investigate such violations. If, as a result of the investigation, SymplBrush believes that criminal activity has occurred, SymplBrush reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. SymplBrush is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the SymplBrush Properties, including Your Content, in SymplBrush’s possession in connection with your use of the SymplBrush Properties, to (a) comply with applicable laws, legal process or governmental request, (b) enforce the Agreement, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, (e) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy, or (f) protect the rights, property or personal safety of SymplBrush, its users or the public, and all enforcement or other government officials, as SymplBrush in its sole discretion believes to be necessary or appropriate.
14.2 Breach. In the event that SymplBrush determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for the SymplBrush Properties, SymplBrush reserves the right to:
i.Delete any of Your Content provided by you or your agent(s) to the SymplBrush ;
ii.Warn you via e-mail (to any e-mail address you have provided to SymplBrush) that you have violated the Agreement;
iii.Discontinue your registration with any of the SymplBrush Properties, including any Services or any SymplBrush community;
iv.Discontinue your access to any Services;
v.Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
vi.Pursue any other action which SymplBrush deems to be appropriate.
15. TERM AND TERMINATION.
15.1 Term. The Agreement commences on the date when you accept the terms (as described in the preamble above) and remains in full force and effect while you use the SymplBrush Properties and/or SymplBrush Product, unless terminated earlier in accordance with the Agreement.
15.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the SymplBrush Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any of the SymplBrush Properties, unless earlier terminated in accordance with the Agreement.
15.3 Termination of Services by SymplBrush. At its sole discretion, SymplBrush may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party.
15.4 Termination of Services by You. If you want to terminate the Services provided by SymplBrush, you may do so by closing your Account for all of the Services that you use. Notwithstanding the foregoing, in the event you cancel in the middle of an active Subscription, you remain responsible for all fees for the SymplBrush Products for the remainder of the Subscription term.
15.5 Effect of Termination. Termination of any Services includes removal of access to such Service and barring of further use of the Service. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. SymplBrush will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15.6 No Subsequent Registration. If your registration(s) with or ability to access the SymplBrush Properties, or any other SymplBrush community is discontinued by SymplBrush due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the SymplBrush Properties or any SymplBrush community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those the SymplBrush Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, SymplBrush reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
16. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with SymplBrush and limits the manner in which you can seek relief from us.
16.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, or to any aspect of your relationship with SymplBrush, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or SymplBrush may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
16.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to SymplBrush, 1562 1st Ave. New York, NY 10028-4004. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, SymplBrush will pay them for you. In addition, SymplBrush will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and SymplBrush. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.4 Waiver of Jury Trial. YOU AND SYMPLBRUSH HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and SymplBrush are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims shall be arbitrated.
16.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your SymplBrush account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.7 Severability. Except as provided in subsection 17.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
16.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with SymplBrush.
16.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if SymplBrush makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing SymplBrush at the following address: SymplBrush, 1562 1st Ave. New York, NY 10028-4004, Attn: DISPUTE NOTICE.
17. GENERAL PROVISIONS.
17.1 Release. You hereby release SymplBrush Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the SymplBrush Properties, including but not limited to, any interactions with or conduct of other Registered Users or Third-Party Websites of any kind arising in connection with or as a result of the Agreement or your use of the SymplBrush Properties. If you are a California resident, you hereby waive California Civil Code Section 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, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a SymplBrush Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with any Services provided hereunder.
17.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without SymplBrush’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.3 Force Majeure. SymplBrush shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, pandemic, epidemic, quarantine, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the SymplBrush Properties, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and SymplBrush agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the Southern District of New York, NY.
17.6 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of NEW YORK, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT.
Notice. Where SymplBrush requires that you provide an e-mail address, you are responsible for providing SymplBrush with your most current e-mail address. In the event that the last e-mail address you provided to SymplBrush is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, SymplBrush’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to SymplBrush at the following address: SymplBrush, 1562 1st Ave. New York, NY 10028-4004, Attn: DISPUTE NOTICE. Such notice shall be deemed given when received by SymplBrush by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.7 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.8 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.9 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
17.10 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.