Last updated February 20, 2025
AGREEMENT TO OUR LEGAL TERMS
We are TUSHY Inc. ("Company," "we," "us," "our"), a company registered in Delaware, United States with an address of 20 Jay St ste 900, Brooklyn, NY 11201, USA, Brooklyn, NY 11201.
We operate the website https://hellotushy.com (the "Site"), as well as any other related products and services that refer or link to these legal terms (the "Legal Terms") (collectively, the "Services").
You can contact us by phone at +1 888 218 8749, email at privacy@hellotushy.com, or by mail at our New York address listed above.
These Legal Terms constitute a legally binding agreement made between you, whether personally or on behalf of abeing or entity("you"), and TUSHY Inc. , concerning your access to and use of the Services. You agree that by accessing the Services, you have read, understood, and agree to be bound by all of these Legal Terms. IF YOU DO NOT AGREE WITH ALL OF THESE LEGAL TERMS, YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICES AND YOU MUST IMMEDIATELY DISCONTINUE ANY USE THEREOF. UNDER NO CIRCUMSTANCES SHALL TUSHY Inc. BE LIABLE TO ANY BEING OR ENTITY FOR ANY CLAIMS, COSTS, DAMAGES, EXPENSES, HARM, LIABILITIES, LOSSES, OR SIMILAR, ARISING FROM OR IN CONNECTION WITH THE USE OF THE SERVICES IN VIOLATION OF THESE LEGAL TERMS
Supplemental terms and conditions or documents that may be posted on the Services from time to time are hereby expressly incorporated herein by reference. Unless stated otherwise, these Legal Terms shall take precedence over any conflicting supplemental terms and condtions. We reserve the right, in our sole discretion, to make changes or modifications to these Legal Terms from time to time. We will alert you about any changes by updating the "Last updated" date of these Legal Terms, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Legal Terms to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Legal Terms by your continued use of the Services after the date such revised Legal Terms are posted.
The Services are intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Services.
We recommend that you print a copy of these Legal Terms for your records.
TABLE OF CONTENTS
2. INTELLECTUAL PROPERTY RIGHTS
10. USER GENERATED CONTRIBUTIONS
13. THIRD-PARTY WEBSITES AND CONTENT
17. MODIFICATIONS AND INTERRUPTIONS
25. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
27. CALIFORNIA USERS AND RESIDENTS
1. OUR SERVICES
The information provided when using the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The Services are not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use the Services. You may not use the Services in a way that would violate the Gramm-Leach-Bliley Act (GLBA). Notwithstanding the foregoing, this disclaimer about the Services does not in any way relieve us of our obligations to comply with all applicable laws and regulations.
2. INTELLECTUAL PROPERTY RIGHTS
Our intellectual property
We are the owner or the licensee of all intellectual property rights in the Services, including, but not limited to, all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics in the Services (collectively, the "Content"), as well as the trademarks, service marks, and logos contained therein (the "Marks").
Our Content and Marks are protected by copyright and trademark laws (and various other intellectual property rights and unfair competition laws) and treaties in the United States and around the world.
The Content and the Marks are provided “AS IS WHERE IS”, solely for your use of the Services, and may not otherwise be used in any manner without our express prior written consent.
Your use of our Services
Subject to your compliance with these Legal Terms, including the "PROHIBITED ACTIVITIES" section below, we grant you a non-exclusive, non-transferable, revocable license to:
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access the Services; and
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download or print a copy of any portion of the Content to which you have properly gained access,
solely for your personal records.
Except as set out in this section or elsewhere in our Legal Terms, no part of the Services and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
If you wish to make any use of the Services, Content, or Marks other than as set out in this section or elsewhere in our Legal Terms, please address your request to: privacy@hellotushy.com.
We reserve all rights not expressly granted to you in and to the Services, Content, and Marks under these Legal Terms.
Any breach of these Intellectual Property Rights will constitute a material breach of our Legal Terms,your right to use our Services will terminate immediately, and may subject you to legal action.
Your submissions
Please review this section and the " PROHIBITED ACTIVITIES" section carefully prior to using our Services to understand the (a) rights you give us and (b) obligations you have when you post or upload any content through the Services.
Submissions: By directly sending us any question, comment, suggestion, idea, feedback, or other information about the Services ("Submissions"), you agree to assign to us any and all rights in such Submission, including, but not limited to, any intellectual property rights therein. You agree that any Submission you provide shall become the exclusive property of TUSH Inc.. You hereby assign to us all rights, title, and interest in any and all Submissions, and we shall have the unrestricted right to use, reproduce, modify, distribute, and display it for any lawful purpose—commercial or otherwise—without any obligation to acknowledge or compensate you. No further documentation or formalities shall be required to evidence or perfect our ownership of your Submission..
You are responsible for what you post or upload: By sending us Submissions through any part of the Services you:
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confirm that you have read and agree with our " PROHIBITED ACTIVITIES" and will not post, send, publish, upload, or transmit through the Services any Submission that is illegal, harassing, hateful, harmful, defamatory, obscene, bullying, abusive, discriminatory, threatening to any person or group, sexually explicit, false, inaccurate, deceitful, or misleading;
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to the extent permissible by applicable law, waive any and all moral rights to any such Submission;
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warrant that any such Submission are original to you or that you have the necessary rights and licenses to submit such Submissions and that you have full authority to grant us the above-mentioned rights in relation to your Submissions; and
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warrant and represent that your Submissions do not constitute confidential information.
You are solely responsible for your Submissions and you expressly agree to indemnify, defend, hold harmless, and pay or reimburse us for any and all claims, damages, , harm, losses, liabilities, costs and, or, also, expenses (including attorneys’ fees) that we may suffer because of your breach of (a) this section, (b) any third party’s intellectual property rights, or (c) applicable law or regulation.
3. USER REPRESENTATIONS
By using the Services, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Legal Terms; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Services through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Services for any illegal or unauthorized purpose; and (7) your use of the Services will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account without notice, penalty, or due compensation, and refuse any and all current or future use of the Services by you (or any portion thereof).
4. USER REGISTRATION
You may be required to register to use the Services. When you regsiter, you agree to keep your password confidential and will accept full responsibility for all activity under your account. We reserve the right to remove, reclaim, or change any username that we determine, in our solediscretion, is inappropriate, obscene, or otherwise objectionable. You are responsible for all actions performed through your registered account. We shall not be liable for any use or misuse of your account. Additionally, we reserve the right to suspend or terminate any account that we determine, in our sole discretion, is used in violation of these Legal Terms or any applicable law or regulation.
5. PRODUCTS
We make every effort to display as accurately as possible the colors, features, specifications, and details of the products available on the Services. However, we do not guarantee that the colors, features, specifications, and details of the products will be accurate, complete, reliable, current, or free of other errors, and your electronic display may not accurately reflect the actual colors and details of the products. All products are subject to availability, and we cannot guarantee that items will be in stock nor that any product which goes out of stock will return to stock. We reserve the right to discontinue any products at any time for any reason without notice. Prices for all products are subject to change at any time, without notice, subject to all applicable laws and regulations.
6. PURCHASES AND PAYMENT
We accept the following forms of payment:
- Visa
- Mastercard
- American Express
- Discover
- PayPal
- Apple Pay
- Google Pay
- Venmo
- Truemed
You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Services. You further agree to promptly update account and payment information, including, but not limted to, any email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. Sales tax will be added to the price of purchases as deemed required by us, in our sole discretion. We may change prices at any time, subject to all applicable laws and regulations. All prices payments shall be in US dollars and you shall be liable for any conversion fees that may be required or are applicable.
You agree to pay all charges at the prices then in effect for your purchases and any applicable shipping fees, and you authorize us to charge your chosen payment provider for any and all such amounts related to your order upon placement. You agree we may, and we reserve the right to, correct any errors or mistakes in pricing, even if we have already requested or received payment. Should such corrections lead you to change your mind about your purchase, you must follow the policies and procedures listed in our Return Policy.
We reserve the right to refuse any order placed through the Services. We may, in our sole discretion, limit or cancel quantities purchased per person(s), per household(s), or per order(s). These restrictions may include, but not be limited to orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. We reserve the right to limit or prohibit orders that, in our sole discretion and judgment, appear to be placed by dealers, resellers, distributors or similar.
7. SUBSCRIPTIONS
Billing and Renewal
Your subscription will continue and automatically renew unless canceled. You consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until such time as you cancel the applicable order. The length of your billing cycle will depend on the type of subscription plan you choose when you subscribed to the Services.
Cancellation
You can cancel your subscription at any time by logging into your account. Your cancellation will take effect at the end of the then current term. If you have any questions or are unsatisfied with our Services, please email us at hello@hellotushy.com.
Fee Changes
We may, from time to time, make changes to the subscription fee and will communicate any price changes to you in accordance with all applicable laws and regulations.
8. RETURN/REFUNDS POLICY
Please review our Return Policy posted on the Services prior to making any purchases.
9. PROHIBITED ACTIVITIES
You may not access or use the Services for any purpose other than that for which we make the Services available. The Services may not be used in connection with any commercial endeavors except those that are expressly and specifically endorsed or approved by us.
As a user of the Services, you agree not to:
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Systematically retrieve data or other content from the Services to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
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Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
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Circumvent, disable, or otherwise interfere with security-related features of the Services, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Services and/or the Content contained therein.
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Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Services.
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Use any information obtained from the Services in order to harass, abuse, or harm another person.
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Make improper use of our support services or submit false reports of abuse or misconduct.
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Use the Services in a manner inconsistent with any applicable laws or regulations.
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Engage in unauthorized framing of or linking to the Services.
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Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Services or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Services.
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Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
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Delete the copyright or other proprietary rights notice from any Content.
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Attempt to impersonate another user or person or use the username of another user.
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Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats ("gifs"), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as "spyware" or "passive collection mechanisms" or "pcms").
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Interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services.
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Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Services to you.
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Attempt to bypass any measures of the Services designed to prevent or restrict access to the Services, or any portion of the Services.
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Copy or adapt the Services' software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
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Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Services.
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Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Services, or use or launch any unauthorized script or other software.
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Use a buying agent or purchasing agent to make purchases on the Services.
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Make any unauthorized use of the Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
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Use the Services as part of any effort to compete with us or otherwise use the Services and/or the Content for any revenue-generating endeavor or commercial enterprise.
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Use the Services to advertise or offer to sell goods and services.
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Sell or otherwise transfer your profile.
10. USER GENERATED CONTRIBUTIONS
The Services does not offer users to submit or post content. We may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Services, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, "Contributions"). Contributions may be viewable by other users of the Services and through third-party websites. As such, any Contributions you transmit may be treated in accordance with the Services' Privacy Policy. When you create or make available any Contributions, you thereby represent and warrant that:
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The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
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You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Services, and other users of the Services to use your Contributions in any manner contemplated by the Services and these Legal Terms.
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You have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Services and these Legal Terms.
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Your Contributions are not false, inaccurate, or misleading.
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Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
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Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as solely determined by us).
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Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
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Your Contributions are not used to harass or threaten any other person and to promote violence against a specific person or class of people.
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Your Contributions do not violate any applicable law, regulation, or rule.
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Your Contributions do not violate the privacy or publicity rights of any third party.
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Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
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Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
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Your Contributions do not otherwise violate, or link to material that violates, any provision of these Legal Terms, or any applicable law or regulation.
Any use of the Services in violation of the foregoing violates these Legal Terms and may result in, among other things, termination or suspension of your rights to use the Services.
11. CONTRIBUTION LICENSE
You and Services agree that we may access, store, process, and use any information and personal data that you provide following the terms of the Privacy Policy and your choices (including settings).
By submitting suggestions or other feedback regarding the Services, you agree that we can use and share such feedback for any purpose without compensation to you.
We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. You acknowledge and agree that you are solely responsible for all content and representations in your Contributions. By providing your Contributions, you agree to indemnify, defend, and hold us harmless, from and against any claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) arising out of or relating to your Contributions, including any claims based on their accuracy, legality, or appropriateness. You further agree not to pursue any legal action against us with respect to your Contributions.
12. GUIDELINES FOR REVIEWS
We may provide you areas on the Services to leave reviews or ratings. When posting a review, you must comply with the following criteria: (1) you should have firsthand experience with the person/entity being reviewed; (2) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hateful language; (3) your reviews should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability; (4) your reviews should not contain references to illegal activity; (5) you should not be affiliated with competitors if posting negative reviews; (6) you should not make any conclusions as to the legality of conduct; (7) you may not post any false or misleading statements; and (8) you may not organize a campaign encouraging others to post reviews, whether positive or negative.
We reserve the right, in our sole discretion, to accept, reject, or remove any reviews. We have no obligation to screen reviews or to delete reviews, even if any review is deemed objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily reflect our opinions or the views of any of our affiliates or partners. You agree that we assume no liability for any review or for any costs, claims, damages, expenses, harm, liabilities,losses or similar arising from any review. Furthermore, you agree to indemnify, defend and hold us harmless from any and all such actions, costs, claims, liabilities, losses or similar resulting from any review you post or that is associate with your account. By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully paid, assignable, and sublicensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content relating to review.
13. THIRD-PARTY WEBSITES AND CONTENT
The Services may contain (or you may be sent via the Site) links to other websites ("Third-Party Websites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third-Party Content"). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Services or any Third-Party Content posted on, available through, or installed from the Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Services and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Legal Terms no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Services or relating to any applications you use or install from the Services. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us blameless from any claim, cost, damage, expense, harm, liabilities, losses, or similar caused by your purchase of such products or services or caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
14. SERVICES MANAGEMENT
We reserve the right, but not the obligation, to: (1) monitor the Services for violations of these Legal Terms; (2) take appropriate legal action against anyone who, in our sole discretion, violates the applicable laws, regulations, or these Legal Terms, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Services or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Services in a manner designed to protect our rights and property and to facilitate the proper functioning of the Services.
15. PRIVACY POLICY
We care about data privacy and security. Please review our Privacy Policy: https://hellotushy.com/pages/privacy-policy. By using the Services, you agree to be bound by our Privacy Policy, which is incorporated into these Legal Terms. Please be advised the Services are hosted in the United States. If you access the Services from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Services, you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States.
16. TERM AND TERMINATION
These Legal Terms shall remain in full force and effect while you use the Services. WITHOUT LIMITING ANY OTHER PROVISION OF THESE LEGAL TERMS, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICES (INCLUDING, BUT NOT LIMITED TO, BLOCKING CERTAIN IP ADDRESSES), TO ANY BEING OR ENTITY FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE LEGAL TERMS OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SERVICES OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
17. MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Services at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Services. We also reserve the right to modify or discontinue all or part of the Services without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, discontinuance, or similar action(s) to the Services.
We cannot guarantee the Services will be available at all times. We may, among other potential roadblocks, experience hardware, software, or other problems or need to perform maintenance related to the Services, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Services at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any claim, cost, damage, expense, liability, loss, or similar, or inconvenience caused by your inability to access or use the Services during any downtime or discontinuance of the Services. Nothing in these Legal Terms will be construed to obligate us to maintain and support the Services or to supply any corrections, updates, or releases in connection therewith.
18. GOVERNING LAW
These Legal Terms and your use of the Services are governed by and construed in accordance with the laws of the State of New York without regard to conflicts of law principles.
19. DISPUTE RESOLUTION
Binding Arbitration
If the parties are unable to resolve any dispute informally, such dispute (except as expressly excluded below) shall be finally and exclusively resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, if applicable, the AAA Consumer Rules. BY AGREEING TO THESE TERMS, YOU ACKNOWLEDGE THAT YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY AND THE RIGHT TO SUE IN COURT FOR ANY AND ALL CLAIMS, EXCEPT AS EXPRESSLY PROVIDED IN THESE LEGAL TERMS. The arbitration will be conducted by a single arbitrator who may resolve the dispute based on documents, telephone, online hearings, or in-person proceedings. The arbitrator’s decision shall be in writing (without the need for a statement of reasons unless requested by either party) and shall be binding. Unless otherwise required by the AAA rules or applicable law, the arbitration shall be held in New York, United States. Notwithstanding the foregoing, either party may petition a court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate, or enforce an arbitration award without violating these Legal Terms.
Should any dispute be filed in court rather than arbitration, the parties agree to promptly move the proceedings to arbitration in accordance with these Legal Terms, and neither party shall contest such removal. Any proceeding filed in court may be validly removed to arbitration, with all associated costs borne by the party that initiated the court filing. However, if a dispute does not qualify for—or is denied removal to—arbitration, or if court filing is otherwise permitted under these Legal Terms, such action shall be exclusively brought in the state or federal courts located in New York, New York, United States. By agreeing to these Legal Terms, you consent to personal jurisdiction and waive any defense based on forum non conveniens. The provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) shall not apply to these Legal Terms.
Any claim related to the Services must be brought within one (1) year from the date the cause of action arises. If this limitation is held to be invalid or unenforceable for any portion of a claim, then that portion shall be resolved in court in New York, United States, as described above.
Restrictions
The Parties agree that any arbitration shall be limited to the dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Arbitration
Notwithstanding the foregoing, the following disputes shall not be subject to arbitration:
(a) disputes concerning the validity or enforcement of any party’s intellectual property rights;
(b) disputes arising from allegations of theft, piracy, invasion of privacy, or unauthorized use; and
(c) claims for injunctive or equitable relief.
20. CORRECTIONS
There may be information on the Services that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Services at any time, without prior notice.
21. DISCLAIMER
THE SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES' CONTENT OR THE CONTENT OF ANY WEBSITES OR MOBILE APPLICATIONS LINKED TO THE SERVICES AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
22. LIMITATIONS OF LIABILITY
IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS UNDER LAW. SHOULD ONE OF THE ABOVE DISCLAIMERS OR LIMITATIONS NOT APPLY TO YOU BY LAW OR SIMILAR, ALL OTHER DISCLAIMERS OR LIMITATIONS LISTED HEREIN SHALL REMAIN IN FULL EFFECT.
23. INDEMNIFICATION
You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any cost, loss, damage, expense, harm, liability, claim, demand, and, or, also, expense, including reasonable attorneys’ fees,, due to or arising out of: (1) use of the Services; (2) breach of these Legal Terms; (3) any breach of your representations and warranties set forth in these Legal Terms; (4) your violation of the rights of a third party, including but not limited to intellectual property rights; or (5) any overt harmful act toward any other user of the Services with whom you connected via the Services. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
24. USER DATA
We will maintain certain data that you transmit to the Services for the purpose of managing the performance of the Services, as well as data relating to your use of the Services. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Services. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
25. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Services, satisfy any legal requirement that such communication be in writing. 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 BY US OR VIA THE SERVICES. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
26. SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
TUSHY (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions (the “Agreement”) and our Mobile Messaging Privacy Policy. By opting in to or participating in the Program, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify any other terms and conditions or privacy policy that may govern the relationship between you and Us in other contexts.
26.1 User Opt In. The Program allows users (“User,” “You”) to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. By opting in, you expressly consent to the use of an electronic record to document your consent to participate 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. By completeing the op-in process, You represent that You are the account holder for the mobile number provided and that you will promptly notify us of any changes to your mobile number. Consent to receive automated marketing text messages is not a condition of any purchase from Us. Messages may include updates, alerts, and information (e.g., order updates, account alerts, etc.) as well as promotions, specials, and other marketing offers (e.g., cart reminders). 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.
26.2 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 acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that We and Our service providers will have no liability for failing to honor such requests. 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.
26.3 Duty to Notify and Indemnify.
You agree to provide a valid mobile number for the Program. If you change or deactivate your mobile number, you agree to promptly notify Us at hello@hellotushy.com (or via another valid contact method) to have your number removed. To the extent permitted by applicable law, we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Program, any errors in such information, and/or any action you may or may not take in reliance on the information or Program. You agree to indemnify, defend, and hold Us harmless from any claims or damages arising out of your failure to provide a valid mobile number or update Us about any changes.
26.4 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, as well as informational or transactional messages (e.g., order updates, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders).
26.5 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. Message frequency varies. We reserve the right to alter the frequency of messages sent at any time to increase or decrease the total number of messages.
26.6 Support Instructions. For support regarding the Program, text HELP to the number you received messages from or email us at hello@hellotushy.com. Please note that using this email address is not an acceptable method of opting out. Opt-outs must be submitted in accordance with the procedures set forth in Section 11.2 above.
26.7 MMS Disclosure. The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging. Delivery of mobile messages is subject to effective transmission by your wireless service provider/network operator and is outside of Our control.
26.8 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. Carriers are not liable for delayed or undelivered mobile messages.
26.9 Participant Requirements. To participate in the Program, 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 and plan details for specific text messaging instructions and fees. Additionally, You may only use or engage with the Program if you are (i) a resident of the United States of America, (ii) are over thirteen (13) years of age, and (iii) if you use or engage with the Program and are between the ages of thirteen (13) and eighteen (18) years of age, you have your parent’s or legal guardian’s permission to do so. By using or engaging with the Program, you represent that you meet these requirements and that your use does not violate any applicable law or regulation.
26.10 Right to Modify or Discontinue the Program
We reserve the right at any time to modify or discontinue this Program, in whole or in part, without notice or liability to you. Any changes to the Program or these Terms will be effective upon posting the updated Terms. Your continued participation in the Program after the effective date of any such changes constitutes your acceptance of those changes.
26.11 Prohibited Content or Conduct
You agree not to use the Program in any way that is unlawful, fraudulent, or abusive, or to send any prohibited content, including but not limited to:
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Fraudulent, libelous, defamatory, threatening, harassing, or stalking activity;
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obscene, profane, or otherwise objectionable content;
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any content that infringes or misappropriates a third party’s intellectual property or proprietary rights; or
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any content or activity that violates applicable laws or regulations.
26.12 State-Specific Disclosures
Depending on where you reside, certain state laws may apply to the Program, including, but not limited to:
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Florida: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, You agree that We may assume that You are a Florida resident if, at the time of opt-in to Program, (1) Your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to You, and You shall not assert that You are a Florida resident, if You do not meet either of these criteria or, in the alternative, do not affirmatively advise Us in writing that You are a Florida resident by sending written notice to Us. Insofar as You are a Florida resident, You agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
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Washington: To the extent the law is relevant and applicable to the Program, We endeavor to comply with the commercial telephone solicitation requirements pursuant to the Revised Code of Washington (RCW) (including but not limited to sections 80.36.390, 19.158.040, 19.158.110 and 19.158) as applicable to Washington residents. For purposes of compliance, You agree that We may assume that you are a Washington resident if, at the time of opt-in to the Program, the area code for the phone number used to opt-into the Program is a Washington area code.
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Oklahoma: We endeavor to comply with the Oklahoma Telephone Solicitation Act of 2022 as applicable to Oklahoma residents. For purposes of compliance, You agree that We may assume that you are an Oklahoma resident if, at the time of opt-in to Program, the area code for the phone number used to opt-into the Program is an Oklahoma area code. You agree that the requirements of the Oklahoma Telephone Solicitation Act do not apply to You, and You shall not assert that You are an Oklahoma resident, if You do not meet the criteria or, in the alternative, do not affirmatively advise Us in writing that You are an Oklahoma resident by sending written notice to Us. Insofar as You are an Oklahoma resident, You agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Oklahoma Statutes Title 15 (including but not limited to sections 775C.1, 775C.2, 775C.3, 775C.4 and 775C.5), to the extent the law is otherwise relevant and applicable.
26.13 Dispute Resolution.
In the event that there is a dispute, claim, or controversy between You and Us, 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. No class actions. YOU UNDERSTAND AND AGREE THAT, BY AGREEING TO THIS AGREEMENT, YOU AND TUSHY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT (the "FAA"). 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 State of New York, 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 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.
27. CALIFORNIA USERS AND RESIDENTS
Only if you are both a resident of and user of the Services from California, should any complaint with us not be satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
28. MISCELLANEOUS
These Legal Terms and any policies or operating rules posted by us on the Services or in respect to the Services constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Legal Terms shall not operate as a waiver of such right or provision. These Legal Terms operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any claims, costs, expense, harm, loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Legal Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Legal Terms and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Legal Terms or use of the Services. You agree that these Legal Terms will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Legal Terms and the lack of signing by the parties hereto to execute these Legal Terms.
29. CONTACT US
In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact us at:
TUSHY Inc.
20 Jay St ste 900, Brooklyn, NY 11201, USA
Brooklyn, NY 11201
United States
Phone: +1 888 218 8749
privacy@hellotushy.com
