Last modified: August 25, 2020
By using the Website and Services, you represent and warrant that:
- You have reached the age of majority in the jurisdiction in which you reside;
- You have the right, authority, and capacity to enter into these Term of Use (on behalf of yourself or the entity that you represent)
- You are able to create a binding legal obligation;
- You have the right to provide any and all information you submit to the Website, and all such information is accurate, true, current and complete, and you will update information provided to the Website to ensure that it is accurate at all times.
2. Accessing the Website and Account Security
We reserve the right to withdraw or amend this Website, and any product, service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
You agree to notify TUSHY immediately of any unauthorized use of your account or any other breach of security. We will not be liable for any loss, damages, liability, expenses or costs (including but not limited to legal fees) that you may incur as a result of someone else using your password or account, either with or without your knowledge. You will be liable for losses, damages, liability, expenses and costs (including but not limited to reasonable legal fees) incurred by TUSHY or a third party due to someone else using your account, unless such use is due to TUSHY’s willful misconduct.
3. Intellectual Property Rights
3.1 The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by TUSHY, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
3.2 You are permitted to use the Website for legitimate business purposes related to your role as a current or prospective customer of TUSHY. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except to:
- Store copies of such materials in RAM or in your web browser's automatic cache, which may occur automatically as a result of the operation of your computer or mobile device incidental to your accessing and viewing those materials.
- Print a reasonable number of pages of the Website for your own personal, non-commercial use. If We provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound to our end user licensing agreement for such applications.
- If we provide social media features with certain content, you may take such actions as are enabled by such features.
3.3 You must not:
a. Modify copies of any materials from the Website.
b. Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
c. Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
d. Access or use for any commercial purposes any part of the Website or any services or materials available through the Website. You must not reproduce, sell or exploit for any commercial purposes any part of the Website, access to the Website or use of the Website or any services or materials available through the Website.
3.4 If you wish to make any use of material on the Website other than that set out in this section, please address your request to: firstname.lastname@example.org. Sending a request for use of material does not automatically confer approval of your request. We reserve all rights with respect to any request for use of the content on the Website.
The TUSHY name, the term “TUSHY”, TUSHY logo, and all related names, logos, product and service names, designs, and slogans (together, the “Marks”) are trademarks of TUSHY or its affiliates or licensors. You must not use such marks without the prior written permission of TUSHY. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.
4. Prohibited Uses
a) In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
b) For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
d) To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
e) To impersonate or attempt to impersonate TUSHY, a TUSHY employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
f) To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Website, or which, as determined by us, may harm TUSHY or users of the Website, or expose them to liability.
g) To launch any third party attack, hack, penetration, denial of service attack, or breach of any third party website, service or internet asset.
h) Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website.
i) Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
j) Use any device, software, or routine that interferes with the proper working of the Website.
k) Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
l) Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
m) Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
n) Otherwise attempt to interfere with the proper working of the Website.
5. User Content
5.1 Content; User Content. The Website may contain mechanisms to provide truthful and accurate reviews of our products, and other interactive features (collectively, "Interactive Services") that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, "post") content or materials (collectively, "User Content") on or through the Website. All User Content must comply with the content standards set out in Section 5.5. Any User Content you post to the site will be considered non-confidential and non-proprietary. You represent and warrant that you own or control all rights in and to the User Content and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns. 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 acknowledge and agree that you are responsible for any User Content you submit or contribute, and you, not TUSHY, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
5.2 Representations. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish User Content you submit. You further agree that User Content you submit to the Website will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant us all of the license rights granted herein. We do not permit copyright infringing activities and infringement of intellectual property rights on the Website, and we will remove all User Content if properly notified that such User Content infringes on another’s intellectual property rights. We reserve the right to remove User Content without prior notice. By using the Website, you expressly agree not to use, reproduce, modify, adapt, edit, translate, publicly display, telecommunicate or perform, post, upload to, transmit, distribute, store, create derivative works from or otherwise publish throughout the world, in any media, now known or hereafter devised, on or through the Website any of the following:
a) User Content that is indecent, profane (including masked profanity where symbols, initials, intentional misspellings or other characters are used to suggest profane language), obscene, pornographic, abusive, inflammatory, untrue, misleading, illegal, invasive of privacy or publicity rights, libelous, slanderous or defamatory. WE DO NOT TOLERATE USERS HARASSING, THREATENING, DISCRIMINATING OR EMBARRASSING OTHER USERS, INCLUDING HARASSMENT OR DENIGRATION BASED ON AGE, GENDER, RACE, RELIGION, NATIONAL ORIGIN, SEXUAL ORIENTATION OR DISABILITY, MARITAL STATUS OR VETERAN STATUS, OR THE STALKING OF OTHER USERS;
b) User Content that contains any confidential or proprietary information of any person or entity, or that otherwise violates the legal rights of any person or entity. You may not include in any User Content either any email addresses or telephone numbers of any person or entity, including your own. You may not use a false email address, impersonate any person or entity (including any other user), or otherwise mislead as to the origin of your User Content;
c) User Content that is unrelated to the topic or context in which such Content is posted, or that, in the sole judgment of TUSHY, contravenes the above, is otherwise objectionable or inappropriate, or which restricts or inhibits any other person from using or enjoying the Service, or which may expose TUSHY or its affiliates or its users to any harm or liability of any type.
5.3 User Content Disclaimers. You understand that TUSHY does not prescreen User Content and is not responsible for examining or evaluating any User Content offered through the Website, including without limitation, their accuracy, usefulness, or safety, or for determining whether the party offering the User Content has obtained all required rights to do so. We do not endorse any User Content submitted to the Website by any user, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with User Content. TUSHY takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto or in connection therewith, nor is TUSHY liable for any mistakes, inaccuracies, infringements, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, TUSHY is not liable for any statements, representations or User Content provided by its users. YOU HEREBY WAIVE ANY AND ALL STATUTORY, LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS WITH RESPECT TO ANY ACTION OR INACTION, INCLUDING, WITHOUT LIMITATION, ANY ACTIVITIES, USER CONTENT, ACTIONS OR INACTIONS OF ANY THIRD PARTY IN CONNECTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY ILLEGAL, DEFAMATORY, OFFENSIVE, OR UNAUTHORIZED CONDUCT BY ANY OF THE SERVICES’ USERS OR ANY OTHER CONDUCT.
5.4 Monitoring and Enforcement; Termination.
By accessing the Website, you agree that We have the right, at TUSHY’s sole discretion, to:
- Remove or refuse to post any User Content for any or no reason in our sole discretion.
- 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.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
Terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these
YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY/ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE COMPANY/SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
We do not undertake to review all material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
5.5 Content Standards. These content standards apply to any and all User Content and use of Interactive Services. User Content must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Content must not:
a) Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
b) Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
c) Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person;
e) Be likely to deceive any person;
f) Promote any illegal activity, or advocate, promote, or assist any unlawful act;
g) Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person;
h) Impersonate any person, or misrepresent your identity or affiliation with any person or organization;
i) Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising;
j) Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case
6. Copyright Infringement Claims.
To notify TUSHY of a possible Infringement you must submit your notice in writing to the attention of “Copyright Infringement” care of email@example.com and include in your notice a detailed description of the alleged Infringement sufficient to enable TUSHY to make a reasonable determination. Please note that you may be held accountable for damages (including costs and attorneys’ fees) for misrepresenting that any User Content is infringing your copyright.
If we remove or disable access to User Content in response to a notice of Infringement, we will make reasonable attempts to contact the User who posted the affected User Content. If you feel that your User Content is not infringing, you may provide TUSHY with a counter notice in writing to the attention of “Copyright Infringement Counter Notification” at firstname.lastname@example.org. You must include in your counter notice sufficient information to enable TUSHY to make a reasonable determination. Please note that you may be held accountable for damages (including costs and attorneys' fees) if you materially misrepresent that your User Content is not infringing the copyrights of others.
If you have any questions about copyright infringement or the notification and counter-notification process under the Digital Millennium Copyright Act (the “DMCA”), we recommend that you speak with an attorney.
7. Terms of Sale and Online Purchases.
7.2 Prices and Payment Terms.
a) All prices, discounts, and promotions posted on the Website are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total, and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
b) Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
7.3 Shipping and Delivery. Unless an item is on backorder, we strive to ship same-day worldwide on orders placed on weekdays prior to 2 p.m. Eastern Standard Time (with the exception of federal holidays). If an order is placed after 2 p.m. Eastern Standard Time on a weekday or on a weekend or federal holiday, the order will be shipped the next business day. For continental US orders, our standard ground delivery service (UPS SurePost or FedEx SmartPost) generally takes 5-7 business days. All international orders are shipped using DHL Express International, which takes approximately 15 business days. Please note that an additional fee may be added on international orders and non-contiguous states. Tracking information is provided for all orders. Please note that there may be delays due to ongoing disruptions in global logistics; please check the Shipping Notice at checkout for up-to-date fulfillment expectations.
7.4 Returns and Refunds.
a) Returns and Refunds. Except for any products designated on the Website as final sale or non-returnable, including, without limitation sale items, towel products, t-shirts, we will accept a return of the product for a refund of your purchase price, less the original shipping and handling costs, provided such return is made within 60 days of delivery with valid proof of purchase and provided such products are returned in their original condition.
i) Return Process. To initiate a return please email email@example.com with the following information:
1) The reason for your return. (If you’re having an issue with your product, we’d love the opportunity to correct it. If a picture would better describe your problem, please attach it to the message. We often have simple solutions for many of the problems that you may run into!)
2) Your order number and TUSHY model.
3) Describe the state of the box and packaging. Has the box been opened or TUSHY used? Have you tried to install your TUSHY? (Due to governmental regulations, we need to thoroughly inspect every returned product. This helps us understand how we will process the return).
4) Do you have any suggested improvements? (This question helps us understand how we can do better and improve any issues that you may have encountered.).
5) Share your tracking number with firstname.lastname@example.org so we can ensure your refund is processed expeditiously.
You are responsible for all shipping and handling charges on returned items. You bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection. If you would like a pre-paid return shipping label, TUSHY will send you one and deduct a $9.99 shipping and handling fee from your refund. Alternatively, if you would like to ship a return with your own carrier of choice please return your product to the applicable address below. :
IF YOU ARE IN THE UNITED STATES:
℅ Ruby Has Fulfillment
12 Wisconsin Ct.
Bayshore, NY 11706
IF YOU ARE IN CANADA:
3600B Laird Road, Unit 2
Mississauga ON L5L 6A7
ii) Refunds. Refunds are processed within approximately 7 to 10 business days of our receipt of your merchandise at our return facility. Your refund will be credited back to the same payment method used to make the original purchase on the Website.
7.5 One-Year Limited Warranty.
a) TUSHY warrants each bidet to be free from defects in materials and workmanship under conditions of normal use for a period of one (1) year from the date of purchase. This warranty is extended only to the original purchaser and is not transferable if the original purchaser sells or otherwise transfers the product. TUSHY may require proof of purchase to determine whether a claim falls within the warranty period
b) To report any product issues and to open a claim under the warranty, contact TUSHY at email@example.com. TUSHY will reach out to you to attempt to help resolve the issue.
c) If a defect covered by this warranty arises, TUSHY’s obligations under this warranty are limited to repair or replacement, at TUSHY’s option, provided that such products were used in accordance with the instructions. Replacement may be of the same or similar product at TUSHY’s discretion and based on availability. TUSHY reserves the right to inspect the product to confirm that the issue is covered by this warranty.
d) TUSHY is not responsible for the cost of return shipping of the product.
e) This warranty does NOT apply to:
i) Damage or loss that occurs during shipment;
ii) Damage, loss, or injury resulting from negligent or improper use or failure to follow instructions;
iii) Damage, loss, or injury resulting from modification of the product;
iv) Damage, loss, or injury resulting from normal “wear and tear” of the product;
v) Damage, loss, or injury occurring after the product has been resold or transferred by the original purchaser;
vi) Damage, loss, or injury to person or property, including, but not limited to, claimed damages that are incidental or consequential in nature.
f) THIS WRITTEN WARRANTY IS THE ONLY WARRANTY MADE BY TUSHY. REPAIR OR REPLACEMENT AS PROVIDED UNDER THIS WARRANTY SHALL BE THE EXCLUSIVE REMEDY AVAILABLE TO THE PURCHASER. TUSHY SHALL NOT BE RESPONSIBLE FOR LOSS OF USE OF THE PRODUCT OR FOR OTHER INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR EXPENSES INCURRED BY THE PURCHASER OR A THIRD PARTY, OR FOR ANY OTHER EXPENSE NOT SPECIFICALLY STATED ABOVE. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ANY IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY LIMITED TO THE DURATION OF THIS WARRANTY. SOME STATES DO NOT ALLOW LIMITATIONS, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
g) This warranty gives you specific legal rights, and you may also have other rights which vary from state to state.
7.6 ASME Plumbing Standards.
Tushy bidets have complied with sections dealing with durability (sections 3.4, 5.6, 5.7, 5.8), functionality (sections 2.6, 3.6, 4.1), material quality (4.9, 4.14, 5.1, 5.2 ), compatibility and design (4.2, 4.4, 6.0), and high pressure testing (section 3.2, 5.3, 5.5) of ASME A11218.1-2012/CSA and ASME A112.4.2-2009.
Plumbing regulations of some regions may require a vacuum breaker backflow prevention for bidets installed on the toilet. Vacuum breakers are very large and expensive and are normally installed on sprinklers and shower heads, because there is a much greater risk of backflow with those systems. Our Tushy bidet does not come with an extra backflow prevention valve, however the valves used are the common valves that are used in faucets and are unidirectional (do not allow backflow).
We would recommend that you check with the plumbing regulations in your area before installing the bidet. If it does not meet the plumbing regulations, it is likely that our bidet cannot be installed and will have to be returned.
8. Information About You and Your Visits to the Website
9. Linking to the Website and Social Media Features
You may link to our Website homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent. You must not establish a link to this Website from any website that is not owned by you, or for which you lack proper legal authority to establish a link.
This Website may provide certain social media features that enable you to:
- Link from your own or certain third-party websites to certain content on this Website.
- Send emails or other communications with certain content, or links to certain content, on this Website.
- Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.
You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
- Establish a link from any website that is not owned by you.
- Cause the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
- Link to any part of the Website other than the homepage.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.
We may disable all or any social media features and any links at any time without notice in our discretion.
10. Links from the Website
If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
11.1 User Opt In. The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
11.2 User Opt Out. If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
11.3 Duty to Notify and Indemnify. If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
11.4 Program Description. Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of TUSHY products.
11.5 Cost and Frequency. Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
11.6 Support Instructions. For support regarding the Program, text “HELP” to the number you received messages from or email us at firstname.lastname@example.org. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
11.7 MMS Disclosure. The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
11.8 Our Disclaimer of Warranty. The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
11.9 Participant Requirements. You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
11.10 Age Restriction. You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
11.11 Prohibited Content. You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes
a) Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
b) Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
c) Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
d) Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
e) Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
f) Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
11.12 Dispute Resolution. In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in New York, NY before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which TUSHY Inc.’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
11.13 Miscellaneous. You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
12. Geographic Restrictions.
The owner of the Website is based in the State of New York in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local law.
13. Disclaimer of Warranties. You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
14. Limitation on Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT YOU HAVE PAID TO THE COMPANY FOR THE APPLICABLE PRODUCT OUT OF WHICH LIABILITY AROSE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
16. Governing Law and Jurisdiction
All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
17. Dispute Resolution and Binding Arbitration.
17.1 YOU AND TUSHY ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
17.2 The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section 10. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
17.3 You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR TUSHY WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
17.4 If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
18. Limitation on Time to File Claims
19. Waiver and Severability
20. Entire Agreement
21. Your Comments and Concerns
This website is operated by Tushy Inc.
All other feedback, comments, requests for technical support, and other communications relating to the Website should be directed to: email@example.com or TUSHY Inc., 240 Kent Ave, Brooklyn, NY 11249.