Terms Of Service
Last updated on October 23, 2014.
THESE TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU”, “YOUR”, OR “CUSTOMER”) AND MD Brush LLC, . (“WE” OR “MD Brush), THE OWNER AND OPERATOR OF THE WWW.MDBRUSH.COM WEBSITE (THE “SITE”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND THE PRODUCTS SOLD ON IT AND SUBSCRIPTIONS SOLD TO IT. BY ACCESSING AND USING THE SITE, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SITE OR PURCHASE PRODUCTS FROM, OR SUBSCRIPTIONS TO, THE SITE.
By signing up for a subscription (as defined below), you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into this Agreement. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to this Agreement and to fully indemnify and hold harmless MD Brush if your child breaches or disaffirms any term or condition of this Agreement.
1 – CHANGES TO TERMS; PERSONAL INFORMATION/PRIVACY
1.1 – Changes to the site
MD Brush may add to, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you.
1.2 – Personal Information/Privacy
2 – PASSWORDS; USE OF SITE
2.1 – Passwords
You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify MD Brush if there is any unauthorized use of your password on this Site or if you know of any other breach of security in relation to this Site.
2.2 – Use of Site; Prohibitions
Subject to your compliance with this Agreement, MD Brush hereby grants you a limited, personal, revocable, non-transferable, non-sub-licensable, and non-exclusive license to access the Site and use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed on the Site (collectively, the “Content”), solely for your personal, non-commercial use. You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Site and Content automatically terminates without notice to you.
You hereby represent and warrant that you will not, and will not induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site or Content or otherwise attempt to gain unauthorized access to any portion of the Site or Content or any other systems or networks connected to the Site, or to any server of MD Brush or its third party service providers, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Content; (c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Site or with any other person’s use of the Site; (d) track or seek to trace any information on any other person who visits the Site; (e) use the Site or Content for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations; or (f) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to the Site or Content.
3 – TERMS OF SALE
3.1 – Sales of Products and Subscriptions to End Users Only
MD Brush sells toothbrushes from the Site to end-user customers who purchase 3 month subscriptions to receive the Products (“subscription (s)”) only for their own personal, non-commercial use. You may not purchase Products or 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.
3.2 – Pricing
Pricing for Products and Subscriptions (including any applicable shipping and handling fees) can be found on MDBrush.com. The price that we will charge you for the Products and Subscriptions will be the price as posted on the Site on the date you first sign-up for a subscription to the Site. MD Brush reserves the right to change prices for Products and Subscriptions at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
3.3 – Cancellation Policy
If you are dissatisfied with the Product for any reason, you may cancel your subscription at any time. MD Brush does not offer refunds or exchanges, all sales are final.
3.4 – Payment Methods; Automatic Subscription’s Renewals and Cancellation Policy
MD Brush accepts credit card payments only. You agree to pay all fees charged to your account based on MD Brush’s fees, charges, and billing terms in effect as shown on the payment page you first sign-up for a subscription ship to the Site. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase of Products or Subscriptions based on the address that you provide as the shipping address when you register for a subscription, and you authorize MD Brush or the third party payment processing service provider that we engage to charge your credit card for any such taxes and fees. All payments shall be made by credit card in advance prior to shipping the Products. If you do not pay on time or if your credit card cannot be charged for any reason, MD Brush reserves the right to either suspend or terminate your account and subscription and terminate these Terms of Service. All sales and payments will be in US Dollars.
MD Brush and MD Brush’s third party payment service provider may receive updated credit card information from your credit card issuer. The disbursement of the updated credit card information is provided to MD Brush and MD Brush’s third party payment service provider at the election of your credit card issuer. Neither MD Brush nor MD Brush’s third party payment service provider are responsible for the distribution of your credit card information. It is at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt out of the update service. It is your responsibility to contact your credit card issuer with regards to your right to opt out of the update service.
IMPORTANT NOTICE TO CONSUMER: MD Brush will automatically renew your subscription on each 3 month anniversary date of the initial subscription date and, as authorized by you during the subscription sign-up process, will charge your credit card with the applicable subscription fee and any shipping and handling costs and sales or similar taxes that may be imposed on your subscription fee payments. Each subscription renewal period is for three months. You may cancel your subscription at any time by logging on to your account at Mdbrush.com. To cancel a subscription, please login to your account on the Site and select the “My Account” link at the bottom of the page, then follow instructions towards cancellation. All cancellation requests must be received by the first day of the month. Cancellation requests received after the first of the month shall take effect the following month. If you have any problems, please email info@MD Brush.com. MD Brush requires a reasonable amount of time to process your subscription cancellation request. If you cancel your subscription, you will enjoy your subscription benefits until the end of the then-current subscription term, and your subscription benefits will expire at the end of the then-current Subscription term for which you have paid. You will not be eligible for a prorated refund of any portion of the Subscription fees paid for any unused days of the then-current Subscription term.
3.5 – Shipping and Product Acceptance
The shipment date will be determined according to whichever date is closer to the date of the Customer’s first purchase date. Shipping dates are estimates only. All shipments are sent Priority Mail or First-Class mail via the US Postal Service. The risk of loss and title for all Products purchased via the Site pass to the Customer upon delivery of the item to the carrier.
- Interfere with, disrupt or violate the Terms and Conditions or servers or networks connected to the Program; or disobey any requirements, procedures, policies, or regulations of such networks;
- Interfere with another Subscriber
- ‘s use of the Program;
- Attempt to gain unauthorized access to the Program, other accounts, computer systems, or networks connected to the Program;
- Transmit any file that contains viruses, worms, Trojan horses, or any other contaminating or destructive features;
- Conduct any illegal activity or solicit the performance of any illegal activity or other activity that infringes the rights of others;
- Resell, barter, trade, auction or otherwise generate income by providing access to the Program to others;
- Submit personal information relating to third parties to the Program without the consent of those third parties.
- Bulk Distribution (“Spam”)
- Fraudulent and Suspicious Behavior
- If a Subscriber provides a Personal Link to a Prospective Subscriber by email, the email must be created and distributed in a personal manner that is appropriate and customary for communications with friends, colleagues and family Subscriber s. By using a Subscriber’s Personal Link, the Prospective Subscriber represents that he/she has given consent to Company to send Subscriber their personal information such as full name and email address.
- Bulk email distribution, distribution to strangers, or any other promotion of a Personal Link in a manner that would constitute or appear to constitute unsolicited commercial email or “spam” in the Company’s sole discretion is expressly prohibited and may be grounds for immediate termination of the Subscriber’s account and deactivation of the Personal Link. We have a no tolerance spam policy.
- The Company has no obligation to monitor the content provided by Subscriber s; however, the Company may choose to do so and block any email messages, remove any such content, or prohibit any use of the Program.
- The Company may prohibit a Subscriber from participating in the Program in their sole discretion, if they determine such Subscriber, either directly or indirectly is attempting to undermine the fairness, integrity or legitimate operation of the Program in any way by cheating, hacking, deception, or any other unfair playing practices of intending to annoy, abuse, threaten or harass any other users or representatives of the Company.
- Use of any automated system, script, or macro to participate in the Program or generate Qualified Referrals is strictly prohibited and will result in the responsible Subscriber’s disqualification from the Program.
- Subscriber s may not enter with multiple or fake emails addresses or accounts, use fictitious identities or use any system, bot or other device or artifice to participate in the Program or receive a Credit.
- The Company reserves the right to disqualify any Subscriber
- and/or cancel any Credit(s) if they find a Subscriber to be tampering with the operation of the Program or violating these Terms and Conditions.
The Company has the right to suspend, disqualify or terminate any Subscriber’s or Prospective Subscriber’s participation in the Program and forfeit any Credits or credits earned if the Subscriber or Prospective Subscriber is found to have engaged in any prohibited conduct or otherwise violated the provisions of this Section 6. If Subscriber s have engaged in prohibited conduct, spam or fraudulent or suspicious behavior that undermines or affects the integrity or credibility of the Program, and the Company is unable to find a solution to restore the integrity and credibility of the Program, then the Company may in its sole discretion cancel, change or suspect the Program.
CAUTION: ANY ATTEMPT TO DELIBERATELY DAMAGE OR UNDERMINE THE LEGITIMATE OPERATION OF THE PROGRAM MAY BE IN VIOLATION OF CRIMINAL AND CIVIL LAWS AND WILL RESULT IN DISQUALIFICATION FROM PARTICIPATION IN THE PROGRAM. SHOULD SUCH AN ATTEMPT BE MADE, THE COMPANY RESERVES THE RIGHT TO SEEK REMEDIES AND DAMAGES (INCLUDING ATTORNEY FEES) TO THE FULLEST EXTENT OF THE LAW, INCLUDING CRIMINAL PROSECUTION.
4 – PROPRIETARY RIGHTS
You hereby acknowledge and agree that MD Brush or its licensors own all legal right, title and interest in and to the Site and Content, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Site and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist.
MD Brush is a trademark of MD Brush in the United States. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in this Agreement, all information and screens appearing on this Site, including Content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of MD Brush, Copyright 2014 © MD Brush, LLC. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
5 – THIRD PARTY SITES; INDEMNIFICATION
5.1 – Third Party Web Sites
5.2 – Indemnification
You hereby agree to defend, indemnify and hold each of the MD Brush Parties (as defined in Section 6 below) harmless from and against, any and all losses, liabilities, damages, and/or claims (including, without limitation, attorneys’ fees and costs) arising from your breach of this Agreement, or otherwise arising from your use or misuse of the Site, Content or Products.
6 – DISCLAIMER OF WARRANTIES
THE SITE, CONTENT, PRODUCTS AND SUBSCRIPTIONS ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. MD BRUSH, ON BEHALF OF ITSELF AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “MD BRUSH PARTIES”): (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR SUBSCRIPTIONS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE OR CONTENT WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR SUBSCRIPTIONS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OF THE USE OF THE SITE, CONTENT OR PRODUCTS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, CONTENT, PRODUCTS OR SUBSCRIPTIONS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, CONTENT, PRODUCTS AND SUBSCRIPTIONS.
THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND MD BRUSH. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MD BRUSH OR ANY PERSON ON BEHALF OF MD BRUSH SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
NOTHING IN THIS SECTION 6 SHALL EXCLUDE OR LIMIT THE MD BRUSH PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
7 – LIMITATION OF LIABILITY
IN NO EVENT SHALL ANY MD BRUSH PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF VALUE OF THE PRODUCTS OR LOSS OF USE OF THE PRODUCTS, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A MD BRUSH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE FOREGOING, A MD BRUSH IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, CONTENT, PRODUCTS OR SUBSCRIPTIONS, THE RELEVANT MD BRUSH PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID MD BRUSH FOR THE PRODUCTS OR SUBSCRIPTIONs, AS APPLICABLE; AND (B) THE SUM OF ONE HUNDRED US DOLLARS (US$100).
NOTHING IN THIS SECTION 7 SHALL EXCLUDE OR LIMIT ANY MD BRUSH PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH MD BRUSH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
8 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW
8.1 – Dispute and Arbitration; Class Action Waiver
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at firstname.lastname@example.org , Attn: Customer Service, 6915 Broadway, Pearland Tx, 77581. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction (or if we have not been able to resolve a dispute we have with you after attempting to do so informally), we each agree to resolve those disputes ARISING OUT OF THIS AGREEMENT (OTHER THAN THOSE RELATED TO MD BRUSH’S ENFORCEMENT AND PROTECTION OF ITS NAME AND INTELLECTUAL PROPERTY RIGHTS) through binding arbitration or small claims court instead of in courts of general jurisdiction. This includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. The arbitrator must follow this Agreement and can award the same damages and relief that a court can award.
We each also agree that this Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply (despite the choice of law provision in Section 8.2 below). ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Neither you nor MD BRUSH has the right to act as a class representative or class representative or participate as a Subscriber of a class of claimants with respect to any claim.
All disputes relating in any way, directly or indirectly, to MD BRUSH for breach of contract, breach of fiduciary duty, negligence, personal injury, intentional torts or other tort will be arbitrated according to the rules of the American Arbitration Association (AAA) in Houston, Texas, including any dispute about the scope of this arbitration agreement, and including all questions about the types of disputes that are subject to this arbitration agreement, all of which you agree will be decided by the arbitrators, whose decision will be final and binding on you. Any issue concerning the extent to which a dispute is subject to arbitration, or concerning the applicability, interpretation or enforceability of this Agreement, including any contention that all or part of this agreement is invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrators. You acknowledge and agree that, in any arbitration proceeding, no depositions will be taken, and all other forms of discovery of facts will be limited to those things that the arbitrators determine, in their sole discretion, to be necessary. Further, in any arbitration proceeding, (i) there shall be no award of punitive, exemplary, incidental or consequential or other special damages, (ii) all damages claims and awards will be governed by the provisions of the Texas Civil Code, and (iii) the parties will conduct the arbitration confidentially and expeditiously and will pay their own costs and expenses of arbitration, including their own attorneys’ fees. If you are unable to afford the AAA fee, you agree to notify all persons against whom you have an arbitrable claim and give such persons the opportunity individually and as a group to pay such fee. The proceeding and the decision shall be kept confidential by the parties.
8.2 – Choice of Law
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to its conflicts of laws rules. Foreign laws do not apply. Arbitration or court proceedings must be in Brazoria County, Texas. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
9 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS
9.1 – Electronic Communications
Whenever you visit our Site or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically. We will communicate with you by email (if you have provided your email address to us), by posting notices on our Site or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.
9.2 – General Terms