Date of last revision: 7-28-18
This Website is owned and operated by Mach Ventures, LLC / DBA: Brightlightsmile, a Florida company.
Mach Ventures, LLC / DBA: Brightlightsmile (“Brightlightsmile” “WE,” “OUR” OR “COMPANY”) AND SHOULD BE READ CAREFULLY. THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THIS WEBSITE, ANY ORDER YOU PLACE THROUGH THIS WEBSITE, BY TELEPHONE OR OTHER ACCEPTED METHOD OF PURCHASE AND, AS APPLICABLE, YOUR USE OR ATTEMPTED USE OF THE PRODUCTS OFFERED ON OR AVAILABLE THROUGH THIS WEBSITE.
THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW IN SECTION 13 OR IF YOU OPT-OUT. PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION PROVISIONS IN SECTION 13 BELOW WHICH ALSO DESCRIBES YOUR RIGHT TO OPT-OUT.
Brightlightsmile™ reserves the right to update and change, from time to time, these Terms and all documents incorporated by reference. You can find the most recent version of these Terms at https://www.brightlightsmile.com/. Use of the Website after such changes constitutes acceptance of such changes.
Table of Contents:
1. Website Use
2. Website User Conduct and Restrictions
3. Your Privacy
4. Order Placement and Acceptance
6. AUTOMATIC PAYMENT AND SHIPMENT TERMS
7. Payment Information
8. Return & Refund Policy
9. Products Available on the Website
10. NO MEDICAL DIAGNOSIS OR TREATMENT
11. DISCLAIMERS OF WARRANTIES
12. Brightlightsmile’S LIMITATION OF LIABILITY
13. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
14. Brightlightsmile’s Remedies
15. Communicating with Brightlightsmile
16. Notice and Takedown Procedures; Copyright Agent
17. Intellectual Property
18. Sharing Your Content
19. Termination of Agreement
20. Links, Third-Party Products & Services
21. Force Majeure
24. No Waiver
25. Electronic Signature
26. Governing Law
27. Complete Agreement
28. Modifications of Agreement
1. WEBSITE USE
This Website is intended for adults only. In order to use the Website, you must be 18 years of age or the legal age of majority in your jurisdiction of primary residence, whichever is greater, and also have the legal capacity to enter into a contract with us. The Website is not intended for children and no person under the age of 18 may use the Website. If you use the Website, you are affirming that you are at least 18 years old or the legal age of majority in your jurisdiction of primary residence (whichever is greater), have the legal capacity to enter into a binding contract with us, and have read this Agreement and understand and agree to its terms.
2. WEBSITE USER CONDUCT AND RESTRICTIONS
Subject to your continued strict compliance with all Terms, Brightlightsmile provides to you a revocable, limited, non-exclusive, royalty-free, non-sublicenseable, non-transferrable license to use the Website. Notwithstanding the foregoing license grant, you hereby acknowledge and agree that: (i) the content, layout, formatting, and features of, and access privileges for, the Website shall be determined by Brightlightsmile in its sole and absolute discretion; (ii) Brightlightsmile has the right to control and direct the means, manner, and method by which the Website is provided; (iii) Brightlightsmile may, from time to time, engage independent contractors, consultants or subcontractors to aid Brightlightsmile in providing the Website or use thereof; and (iv) Brightlightsmile has the right to provide the Website to others. Brightlightsmile or its licensors, as applicable, shall, at all times, retain exclusive ownership of the entirety of the Website and its content. You agree that Brightlightsmile may, in its sole discretion, and at any time, revise, terminate or suspend its operation of the Website or your use of the Website, without prior notice to you, for any reason.
Your use of the Website for any illegal or unauthorized purpose is expressly prohibited. You represent and agree to provide true, accurate and complete information about yourself. You must not violate or infringe any of our Intellectual Property (as defined in Section 17 below), including, but not limited to, copyrights or trademarks.
As a user of the Website, you agree that in connection with your use of the Website and the content You will not: (a) Upload, post, email, or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of anyone's privacy, hateful, or racially, ethnically, or otherwise objectionable; (b) Conduct yourself in an inappropriate, offensive, indecent, or vulgar manner while using the Website; (c) Use the Website for any unlawful purpose; (d) Upload, post, email, or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary, and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (e) Upload, post, email, or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other intellectual property right of any party; (f) Upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "Spam," "chain letters," "pyramid schemes," or any other form of solicitation; (g) Upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (h) Interfere with or disrupt the Website, the services, the content, or the servers or networks connected to the Website, the services or the content on the Website, or disobey any requirements, procedures, policies, or regulations of networks connected to the Website, the services, and/or the content, the terms of which are incorporated herein; and/or (i) Intentionally or unintentionally violate any applicable local, state, national, or international law. Without the prior express written authorization of Brightlightsmile, you may not: (a) Duplicate the Website; (b) Create derivative works based on the Website or any of our Intellectual Property; (c) Remove any copyright or other proprietary notices from the Website or any of the Intellectual Property contained thereon; (d) Frame or utilize any framing techniques in connection with the Website or any Intellectual Property; (e) Use any meta-tags or any other "hidden text" using the Website's name or marks; (f) "Deep-link" to any page of the Website; (g) Circumvent any encryption or other security tools used anywhere on the Website (including the theft of user names and passwords or using another person's user name and password in order to gain access to a restricted area of the Website); (h) Use any data mining, bots, or similar data gathering and extraction tools on the Website; (i) Use any device, software or routine to bypass any operational element or to interfere, or attempt to interfere, with the proper working of the Website, server or activities conducted therein; or, (j) Take any action that imposes an unreasonable or disproportionately large load on the Website or its network infrastructure.
3. YOUR PRIVACY
4. ORDER PLACEMENT AND ACCEPTANCE
You agree that any products you purchase from Brightlightsmile and/or our Website will be used for your personal, non-commercial use. You agree that you will not re-sell, re-distribute, or export any product that you order from the website.
If you order a product, payment must be received by Brightlightsmile before your order is accepted. Brightlightsmile may require additional information regarding your order if any required information was missing or inaccurate, and may cancel or limit an order any time after it has been placed.
Your order is conditioned on you accepting this Agreement. Once we receive your authorized order and a verified form of payment has been received, we will promptly place your order in line for shipment or delivery. All items are subject to availability. We will notify you if any item is not available, the expected availability date, and may offer you an alternative product. If the availability of any product is delayed and you do not wish to substitute the product, upon your request, we will cancel your order and if previously charged, your credit card will be fully refunded for that specific order.
Brightlightsmile does not accept orders from dealers, wholesalers, or customers who are resellers or who intend to resell items offered on the Website. If Brightlightsmile discovers that you are placing orders with the intent to resell items offered on the Website, we will immediately cancel your order, suspend or terminate your account, and, at our option, pursue any and all available legal remedies from you under applicable law. To the extent your conduct may be fraudulent, such as attempting to purchase or purchasing products through the use of fake or stolen cards, Brightlightsmile will report you to federal, state and/or local enforcement authorities and take any additional legal action deemed appropriate by Brightlightsmile.
Unless otherwise stated on the Website at the time of purchase, Brightlightsmile reserves the right to add applicable shipping and handling fees to your order. Unless otherwise stated, Brightlightsmile will use commercially reasonable efforts to fulfill your order within a reasonable time after receipt of your properly completed and verified order. Although Brightlightsmile may provide delivery or shipment timeframes or dates, such dates are good-faith estimates and are subject to change. You further understand that product or service availability may be limited and particular products or services may not be available for immediate delivery. If your order will be delayed, Brightlightsmile will contact you at the e-mail or street address you provided when placing your order. If Brightlightsmile is unable to contact you or you would like to cancel your order, Brightlightsmile will cancel the order and refund the full amount charged. Brightlightsmile shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery caused by any third party carrier or other delivery service not owned or controlled by Brightlightsmile. The risk of loss and title for such items pass to you upon our delivery to any third party carrier. Brightlightsmile reserves the right to reject orders where the stated delivery address is outside the United States.
6. AUTOMATIC PAYMENT AND SHIPMENT TERMS
If you are placing an order online, by telephone or other order method as part of an automatic renewal program, your participation in the program shall be in effect until it is cancelled or for the length of the automatic renewal period, whichever occurs first. We may, in our sole discretion, terminate the program or your participation in the program at any time without notice to you.
IF YOU PARTICIPATE IN AN AUTOMATIC RENEWAL PROGRAM AND YOU HAVE PROVIDED US WITH A VALID CREDIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, EACH PAYMENT WILL BE AUTOMATICALLY PROCESSED AT THE TIME OF EACH SHIPMENT OR INSTALLMENT AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR INITIAL PURCHASE AND AGREEMENT TO PARTICIPATE IN THE PROGRAM. IF YOU WISH TO CANCEL YOUR PARTICIPATION IN AN AUTOMATIC RENEWAL PROGRAM, YOU MAY DO SO AT ANY TIME BY CONTACTING (877) 907-4047 OR BY E-MAILING SUPPORT@Brightlightsmile.COM.
You are obligated to provide current, complete, and accurate information for your account. You are responsible for updating all information, including credit card or payment information, to keep your billing account current, complete, and accurate (e.g., change in billing address, credit card number, or credit card expiration date). You must promptly notify us if your credit card information is cancelled or is no longer valid (e.g., loss or theft) or your shipment may be delayed or cancelled. Changes to such information can be made by contacting a customer care professional at (877) 907-4047 or firstname.lastname@example.org. If you participate in an automatic shipment program using a credit card and your credit card fails to process for a subsequent shipment, you agree that Brightlightsmile may contact you on any phone number (including a cell phone number) or e-mail address provided by you for alternate payment information. If you fail to pay for any product or service received, your account may be sent for collection.
All Discount Club subscription orders must be canceled within (8) hours of the renewal subscription date to avoid the order being shipped. When signing up for the Discount Club; clear notice of the auto-ship subscription dates will be provided via the Receipt Page after your purchase, via email receipt, via a physical copy upon product arrival; in addition, a subscription billing notice will be emailed to you (5) and (2) days prior to your Credit Card being billed – you may cancel your subscription via email or via phone anytime before the 8-hour period prior to your Credit Card being billed. Discount Club auto-ship orders will be shipped within 24 hours of a successful billing.
7. PAYMENT INFORMATION
When ordering products or services through the Website, by telephone, or otherwise, you agree to provide only truthful, accurate, current, and complete payment information. By placing an order, you represent and warrant that you will only provide payment information which is yours or information you are authorized to use and provide to us for purposes of placing an order. Brightlightsmile reserves the right to cancel any order or to suspend or terminate your account if we have grounds to believe that you have provided inaccurate, not current, fraudulent, or incomplete payment information to Brightlightsmile, or for any other reason that we, in our sole discretion, believe appropriate. You agree that your placement of an order on or through this Website is sufficient to satisfy any applicable Statute of Frauds and no further writing is required.
8. RETURN & REFUND POLICY
You may return items in accordance with the Return & Refund Policy posted on this Website. If you are uncertain about your right to return the product, you may also contact a customer care professional at (877) 907-4047. Brightlightsmile will refund your payment when the product you ordered is timely returned in accordance with the terms set forth in the Return & Refund Policy. Please allow for one full billing cycle to complete the refund process.
9. PRODUCTS AVAILABLE ON THE WEBSITE
Brightlightsmile reserves the right, without notice, to discontinue products or modify specifications and prices on products without incurring any obligation to you. Brightlightsmile takes reasonable steps in an effort to insure that the prices set forth on the Website are correct, and to accurately describe and display the items available on the Website. However, when ordering products, please note that Brightlightsmile does not warrant that product descriptions are accurate, complete, current, or error-free, or that packaging will match the actual product that you receive. If any item described on the Website is not as described when you receive it, or the packaging on the Website does not match what you receive, your sole remedy is to return it to us in an unused and undamaged condition in accordance with the Return & Refund Policy or by calling a customer care professional at (877) 907-4047. Brightlightsmile’s descriptions of, or references to, products or services not owned by Brightlightsmile are not intended to imply endorsement of that product, or constitute a warranty by Brightlightsmile unless expressly stated on the Website.
10. NO MEDICAL DIAGNOSIS OR TREATMENT
Brightlightsmile is committed to improving the well-being of our customers by providing safe and effective wellness products made with the highest quality ingredients. You understand, however, that our Products have not been evaluated by the Food and Drug Administration, and Our Products AND the information on the Website are not intended to diagnose, treat, cure or prevent any health problems, illnesses, or disease. The information on this Website or in emails is designed for informational purposes only and is not intended to be a substitute for informed medical advice or care. You further understand that our Products are not intended for use by persons under 18 years of age and that the Products are not to be used to treat any type of medical condition. You agree that You either have consulted, or will consult, with a physician or doctor before using any of Our Products, particularly if You suffer from any medical condition including, but not limited to, skin diseases or ailments, strokes, high blood pressure, heart, liver, kidney or thyroid disease, diabetes, anemia, depression, anxiety, other psychiatric conditions, a family history of these or other medical conditions, or if taking any prescription, Over-The-Counter, HERBAL and/or other medications, and You agree that you will cease immediately from taking or using Our Products if You experience any ill effects or unintended side effects of any Product. Brightlightsmile endeavors to provide You with accurate information about Our Products. You understand and agree that the information Brightlightsmile conveys about oUr Products and/or the efficacy of Our Products, is obtained from independent third parties such as news agencies, scientific reports, and scientific / research entities ("Third Parties"). Brightlightsmile does not warrant or represent that such information is error-free, and Brightlightsmile does not represent or endorse any Third Parties or the methods that they use to arrive at their conclusions. All Product specifications, performance data, and other information on the Website is for informational and illustrative purposes only, and do not constitute a guarantee or representation that the Products will conform to such specifications or performance data. Brightlightsmile does not warrant or represent that Our Products will provide You with any particular benefits, or that Your results will match those of others who USE Our Products. Individual results will vary from person to person, and are dependent on factors including age, weight, body chemistry, skin type, diet, and exercise regimen.
The representations and product disclaimers described above are inapplicable where prohibited by law, including in New Jersey.
11. DISCLAIMERS OF WARRANTIES
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, INCLUDING THE STATE OF NEW JERSEY:
THE WEBSITE AND THE MATERIALS AND PRODUCTS CONTAINED AND OFFERED ON THE WEBSITE ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Brightlightsmile DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE AND PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Brightlightsmile DOES NOT MAKE ANY WARRANTY THAT THE WEBSITE WILL MEET ANY REQUIREMENTS, OR THAT ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. Brightlightsmile MAKES NO, AND EXPRESSLY DISCLAIMS, ALL WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR AS TO THE ACCURACY, QUALITY, OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE, INCLUDING BUT NOT LIMITED TO ANY LIVE CHAT OR STATIC OR DYNAMIC CONTENT.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED BY YOU THROUGH USE OF THE WEBSITE IS USED AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Brightlightsmile OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
12.S HAPIRO MD’S LIMITATION OF LIABILITY
IF, NOTWITHSTANDING THE LIMITATIONS OF LIABILITY SET FORTH ABOVE, Brightlightsmile IS FOUND LIABLE UNDER ANY THEORY, Brightlightsmile’S LIABILITY AND YOUR EXCLUSIVE REMEDY WILL BE LIMITED TO the lesser of (i) USD $500.00, or (ii) the total amount of money You paid to Brightlightsmile in the one (1) month period immediately preceding the incident on which Your alleged claim is based. This limitation of liability shall apply for all CLAIMS, regardless of whether Brightlightsmile was aware of or advised in advance of the possibility of damages or such CLAIMS. Some STATES do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to You AND YOU MAY HAVE ADDITIONAL RIGHTS. Notwithstanding anything in these terms to the contrary, this limitation of liability does not apply TO CONSUMERS in New Jersey.
13. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Notwithstanding the foregoing, and as an exception to final and binding confidential arbitration, you and Brightlightsmile both retain the right to pursue, in small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court’s jurisdiction. Brightlightsmile will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is and remains pending in that court. The following claims shall not be subject to final and binding arbitration and must be adjudicated only in the state or federal courts of New York: (i) any dispute, controversy, or claim relating to the infringement or validity of our proprietary rights, including without limitation, trademarks, service marks, copyrights, or trade secrets; or (ii) an action by Brightlightsmile for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief, against you for breach or threatened breach of this Agreement. You expressly agree to refrain from bringing or joining any claims that are excluded from final and binding arbitration pursuant to this subsection “b” in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration. Small claims matters may be filed in any small claims court with personal and subject matter jurisdiction over the parties. For all other matters excluded from final and binding arbitration by this subsection “b,” the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the State of New York, and forever waive any challenge to said courts’ jurisdiction and venue.
1. Required Pre-Dispute Procedures
We acknowledge and agree that before initiating any Claim against the other, we agree to first contact the other with a written description of the dispute, which shall include all relevant documents and information, and the proposed resolution. You may send the written description of any dispute you have with us by U.S. Mail to Brightlightsmile, 382 NE 191st St, Suite 22949, Miami, FL 33179. Brightlightsmile will contact you by letter at the billing address you provided to us or at the email address you provided to us. You agree to negotiate with Brightlightsmile or its designated representative in good faith about your problem or dispute. If for some reason the dispute is not resolved within 60 days after receipt of the written dispute, we agree to the dispute resolution provisions below.
1. Commencing Arbitration
You and Brightlightsmile agree to commence any arbitration proceeding within 1 year after the Claim arises (the 1 year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after 1 year shall be forever barred.
1. Arbitration Location
For your convenience, the arbitration may be conducted in the federal district where you reside. It may be held by telephone or through written submissions if both you and Brightlightsmile agree.
1. Organization, Rules and the Arbitrator
We each agree that any and all Claims other than those exempted under subsection “b” above shall be submitted to final and binding confidential arbitration before a single arbitrator of the American Arbitration Association (“AAA”). Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party, within the time period set forth in subsection “d” above. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the AAA. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration.
For your convenience, Brightlightsmile will pay all of the filing costs for the arbitration, including the fees charged by the arbitrator. The parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
1. Governing Law and Award
The arbitrator shall follow the substantive law of the State of New York without regarding to its conflicts of laws principles and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including permanent injunctions and punitive damages, so long as they are in accordance with applicable law and not otherwise excluded by these Terms. The arbitrator may award costs or fees to a prevailing party, but only if the law expressly allows it. Nothing herein shall be construed to limit the arbitrator’s ability to award remedies provided by applicable law. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the FAA. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
This provision survives termination of your account or relationship with Brightlightsmile, bankruptcy, assignment or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
Failure or any delay in enforcing this arbitration provision in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims except all Claims must be brought within the 1 year limitation period set forth above. This provision is the entire arbitration agreement between you and Brightlightsmile and shall not be modified except in writing by Brightlightsmile.
Brightlightsmile reserves the right to amend this arbitration provision at any time. Your continued use of the Website, purchase of a product on or through the Website, or use or attempted use of a Brightlightsmile product, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Brightlightsmile will provide you notice and an opportunity to opt-out. Your continued use of the Website, purchase of a product on or through the Website, or use or attempted use of a Brightlightsmile product, is affirmation of your consent to such material changes.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION.
You have THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN thirty (30) days from the date that you PURCHASE, USE, OR ATTEMPT TO USE A PRODUCT PURCHASED ON OR THROUGH THIS WEBSITE (WHICHEVER COMES FIRST) BY WRITING TO Brightlightsmile at 382 NE 191st St, Suite 22949, Miami, FL 33179. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PUCRHASED, USED OR ATTMPETED TO USE THE PRODUCT. If more than thirty (30) days have passed, you are not eligible to opt out of THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THIS AGREEMENT.
14. Brightlightsmile’S REMEDIES
In order to prevent or limit irreparable injury to Brightlightsmile, in the event of any breach or threatened breach by you of the provisions of the parties’ Agreement, Brightlightsmile shall be entitled to seek an injunction or other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting Brightlightsmile from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of monetary damages from you.
15. COMMUNICATING WITH Brightlightsmile
You understand that all telephone calls, live chats and other communications such as personal messaging or social media posts to or from Brightlightsmile may be monitored and recorded and you consent to such monitoring and recording.
You verify that any contact information provided to Brightlightsmile is true and accurate. You further verify that you are the account subscriber or that you own or are an authorized user of any telephone numbers, email addresses, etc. that you provide to Brightlightsmile and that by voluntarily providing your contact information to Brightlightsmile, you agree to be contacted at the telephone numbers or at any other contact method you provide.
You consent to receive e-mails, pre-recorded voice messages or autodialed calls (including text messages) to the phone number(s) provided by you at the time of purchase (including any cell phone numbers) by or on behalf of Brightlightsmile relating to this Agreement, any purchase or transaction with Brightlightsmile, your account (including debt collection), promotions regarding and advertisements for Brightlightsmile products, customer satisfaction surveys, and product inquiries. You agree to receipt of such communications made by or on behalf of Brightlightsmile even if your phone number is registered on a state or federal Do Not Call list. You acknowledge that you may incur a charge for these communications by your telephone or internet carrier and that Brightlightsmile will not be responsible for these charges Your consent to this communications provision is not required to make any purchase with Brightlightsmile.
You agree to provide Brightlightsmile notice within 30 days of any change to your contact information by writing to Brightlightsmile, 382 NE 191st St, Suite 22949, Miami, FL 33179.
16. NOTICE AND TAKE-DOWN PROCEDURES; COPYRIGHT AGENT
If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you can submit a Notice of Claimed Infringement (NOCI) to Brightlightsmile by providing the following information:
1. A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
2. Identification or description of the copyrighted work or other intellectual property that you claim has been infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, trademark or patent);
3. Identification or description of where the material that you claim is infringing is located on the Website, with enough detail that Brightlightsmile may find it on the Website;
4. Your address, telephone number, and email address;
5. A statement by you that you have a good faith belief that the use of the material complained of is not authorized by the copyright owner or intellectual property owner, its agent, or the law; and
6. A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on behalf of the copyright or intellectual property owner.
Our agent designated to receive claims of copyright or other intellectual property infringement may be contacted as follows:
PO Box 28892
Santa Ana, CA 92799
17. INTELLECTUAL PROPERTY
The Website and all of its contents including, but not limited to, articles, other text, photographs, illustrations, graphics, product names, designs, logos, and the collection, arrangement, and assembly of all content (collectively, the/our “Intellectual Property") are protected by copyright, trademark, and other laws of the United States, as well as international conventions and the laws of other countries. The Intellectual Property is the exclusive property of Brightlightsmile or its licensors. No license or ownership rights in or to any of the Intellectual Property are conveyed to you by virtue of this Agreement or by your purchase of any Product from the Website. The Intellectual Property is protected by the copyright and trademark laws of the United States. Unless otherwise permitted by law, none of the Intellectual Property may be reproduced by you without Brightlightsmile’s prior written permission.
18. SHARING YOUR CONTENT
Subject to the limitations set forth herein, you may upload any photographs, comments, video clips, reviews and other communications and content to the Website (“Your Content”). By posting or submitting Your Content you grant Brightlightsmile a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable and transferable right to use, reproduce, modify, adapt, publish, translate, perform, create derivative works from, distribute, and display such content, and the name submitted in connection with such content, throughout the world in any media now known or hereafter conceived. Brightlightsmile is free to use any ideas, concepts or know-how contained in Your Content for any purpose whatsoever including, but not limited to, developing, manufacturing, distributing and marketing products that use such information.
You represent and warrant that: (a) you own or otherwise control all of the rights to Your Content; (b) Your Content is accurate; (c) use of Your Content does not violate this Agreement or any law or regulation, and will not cause injury to any person or entity; and (d) you will protect, defend, indemnify and hold harmless Brightlightsmile, and all of its directors, officers, employees, agents, contractors, co-branders, suppliers, and affiliates, from and against any and all liability, losses, claims, demands, disputes, damages, and costs of any kind, including, without limitation, reasonable attorneys’ fees and costs of litigation resulting from or in any way connected with or related to Your Content.
We will not be responsible or liable to you or to any third party for the content or accuracy of Your Content. Brightlightsmile has the right, but not the obligation, to monitor and edit or remove any activity or content, including Your Content, for any reason and without notice. Brightlightsmile takes no responsibility and assumes no liability for Your Content or for any of Your Content posted by a third party.
19. TERMINATION OF AGREEMENT
This Agreement will take effect (or shall re-take effect) at the time you click “ORDER NOW”, “SUBMIT”, “BUY NOW”, “PURCHASE”, “I ACCEPT”, “I AGREE” or similar links or buttons, otherwise submit information through the Website, respond to a request for information, complete a purchase, select a method of payment, enter in payment method information, and/or begin installing, accessing, or using this Website, whichever is earliest. Brightlightsmile reserves the right to terminate this Agreement without notice and/or refuse to sell to anyone who Brightlightsmile believes, in our sole discretion, (i) has violated any of the terms of this Agreement, (ii) is abusing the products Brightlightsmile provides, or (iii) is unable to provide us with sufficient information to allow us to properly identify the customer's real name, address, or other contact information. You further agree that Brightlightsmile shall not be liable to you or to any third party for the consequences of such termination, suspension or revision. Your rights under this Agreement will terminate automatically if you fail to comply with this Agreement, subject to the survival of rights of certain provisions identified below. Termination will be effective without notice. Upon termination, you must promptly destroy all copies of any aspect of the Website in your possession. Sections 10 through 15 and 17 through 27 of this Agreement, as well as any representations, warranties, and other obligations made or undertaken by you, shall survive the termination of this Agreement and/or your account or relationship with Brightlightsmile.
20. LINKS, THIRD PARTY PRODUCTS & SERVICES
21. FORCE MAJEURE
Brightlightsmile shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay Brightlightsmile’s performance.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless Brightlightsmile, and all of its directors, officers, shareholders, employees, affiliates, independent contractors, telecommunications providers, and agents, from and against any and all claims, actions, loss, liabilities, damages, expenses, demands, and costs of any kind, including, but not limited to, reasonable attorneys’ fees and costs of litigation, resulting from or in any way connected with or related to (1) your use, misuse, or inability to use the Website, (2) information you submit or transmit through the Website; (3) privacy, tort or other claims (e.g., claims under the Federal Telephone Consumer Protection Act or state law equivalents) relating to provision of personal information (e.g., telephone number) to Brightlightsmile that is not owned by you in contravention of this Agreement; and/or (4) your breach of any of these Terms and/or the Agreement. Brightlightsmile shall promptly notify you by electronic mail of any such claim or suit, and cooperate fully (at your expense) in the defense of such claim or suit. If Brightlightsmile does not hear from you promptly, Brightlightsmile reserves the right to defend such claim or suit and seek full recompense from you.
If any provision of this Agreement is found by the arbitrator or (if proper) a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected thereby and shall continue in full force and effect and such provision may be modified or severed from this Agreement to the extent necessary to make such provision enforceable and consistent with the remainder of the agreement.
24. NO WAIVER
No failure or delay on the part of Brightlightsmile in exercising any right, power or remedy under this Agreement may operate as a waiver, nor may any single or partial exercise of any such right, power or remedy preclude any other or further exercise of such right, power, or remedy, or the exercise of any other rights, power or remedy under this Agreement. A waiver of any right or obligation under this Agreement shall only be effective if in writing and signed by Brightlightsmile.
25. ELECTRONIC SIGNATURE
All information communicated on the Website is considered an electronic communication. When you communicate with any Brightlightsmile company through or on the Website or via other forms of electronic media, such as e-mail, you are communicating with the company electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
You further acknowledge and agree that by clicking on a button labeled “ORDER NOW”, “SUBMIT”, “BUY NOW”, “PURCHASE”, “I ACCEPT”, “I AGREE” or similar links or buttons, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE WEBSITE. Furthermore, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature, delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
26. GOVERNING LAW
27. COMPLETE AGREEMENT
This Agreement constitutes the entire agreement between you and Brightlightsmile with respect to your access and use of the Website and your ordering, purchasing and use and/or attempted use of any product, and supersedes and replaces any prior version of this Agreement and any all prior oral agreements or representations.
28. MODIFICATIONS OF AGREEMENT
Brightlightsmile reserves the right to change any of the provisions posted herein and you agree to review these terms and conditions each time you visit the Website. Your continued use of the Website following the posting of any changes to these terms and conditions constitutes your acceptance of such changes. Brightlightsmile does not and will not assume any obligation to provide you with notice of any change to this document. Unless accepted by Brightlightsmile in writing, these terms and conditions may not be amended by you.
If you have any questions please call us toll-free at (99999999) Monday to Saturday, 9AM-9PM Eastern Standard Time (“EST”).
You may also write to us at:
© 2017 Brightlightsmile, LLC
You agree that any products you purchase from Brightlightsmile and/or our Website will be used for your personal, non-commercial use. You agree that you will not re-sell, re-distribute, or export any product that you order from the website. To ensure the products and services on our site are of the highest quality and are backed by our exclusive money back guarantee and customer support, among other things, Brightlightsmile does not allow any resale or other distribution of any kind or nature, whatsoever, by you or any third party. By purchasing a product from our site you promise and agree that you will not sell, re-sell, distribute or otherwise offer for sale any Brightlightsmile products purchased or otherwise received by you, and you also promise and agree that you will not give, sell or otherwise transfer, Brightlightsmile products purchased or received by you to any third party for any reason whatsoever. Mach Ventures LLC, owner of the rights to the Brightlightsmile line, reserves the right to take action against any unlawful reseller or distributor for unlawfully reselling our Brightlightsmile products. Such actions include all remedies under State and Federal law, including the Lanham Act.