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BrushHour
COMMERCIAL TERMS & CONDITIONS NOTICE
December 13, 2023
These terms of service constitute a legally binding agreement (the “Agreement”) between you and BrushHour Systems, LLC. (“BrushHour,” "BrushHour Systems, LLC.”, “we,” “us,” or “our”) governing your use of the BrushHour web app, website, and technology platform (collectively, the “BrushHour Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND BrushHour HAVE AGAINST EACH OTHER CAN BE BROUGHT. THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST BrushHour TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS AN Provider, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED BELOW.
By entering into this Agreement, you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provision) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE BrushHour PLATFORM.
1. Contractual Relationship
These Terms of Use ("Terms") govern your access or use, from within the United States and its territories and possessions, of the applications, websites, content, products, and services (the "Services," as more fully defined below in Section 3) made available in the United States and its territories and possessions by BrushHour Systems, LLC and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "BrushHour"). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BrushHour. In these Terms, the words "including" and "include" mean "including, but not limited to."
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. BrushHour may immediately terminate these Terms or any Services with respect to you, or generally, cease offering or deny access to the Services or any portion thereof, at any time for any reason.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH BrushHour ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate region-specific disclosures (e.g., a particular city webpage on BrushHour.com) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
BrushHour may amend the Terms from time to time. Amendments will be effective upon BrushHour's posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If BrushHour changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing BrushHour written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o BrushHour Systems, LLC (the name and current contact information for the registered agent in each state are available online), or (b) by email from the email address associated with your Account to: [email protected]. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).
BrushHour's collection and use of personal information in connection with the Services is described in BrushHour's Privacy Statements located at www.BrushHour.com/privacy.
2. Arbitration Agreement
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against BrushHour on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against BrushHour, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against BrushHour by someone else.
You and BrushHour agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and BrushHour, and not in a court of law.
You acknowledge and agree that you and BrushHour are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and BrushHour otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and BrushHour each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Rules and Governing Law.
The arbitration will be administered by National Arbitration and Mediation (“NAM”) in accordance with NAM’s Comprehensive Dispute Resolution Rules and Procedures and/or NAM’s Supplemental Rules for Mass Arbitration Filings (“NAM’s Rules”) then in effect, except as modified by this Arbitration Agreement. NAM’s Rules are available at www.namadr.com or by calling 1-800-358-2550.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. The parties intend that the FAA will apply even if the application of the FAA would result in the invalidation of this Arbitration Agreement. If the FAA is found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Wyoming.
Process.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in NAM’s Rules. The Arbitrator will be either (1) a retired judge or (2) an attorney licensed to practice law in the state of Wyoming and will be selected by the parties from NAM’s roster of arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then NAM will appoint the Arbitrator in accordance with NAM’s Rules.
Location and Procedure.
Unless you and BrushHour otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely based on documents you and BrushHour submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by NAM’s Rules. Subject to NAM’s Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision.
The Arbitrator will render an award within the time frame specified in NAM’s Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. BrushHour will not seek, and hereby waives all rights BrushHour may have under applicable law to recover, attorneys’ fees and expenses if BrushHour prevails in arbitration.
Fees.
Your responsibility to pay any NAM filing, administrative and arbitrator fees will be solely as set forth in NAM’s Rules.
Changes.
Notwithstanding the provisions above, regarding consent to be bound by amendments to these Terms, if BrushHour changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing BrushHour written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o BrushHour Systems, LLC (the name and current contact information are available online here), or (b) by email to the [email protected]. To be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and BrushHour in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall stay pending the outcome of any individual claims in arbitration.
3.1 The Online Experience & Online Service
The Services comprise mobile applications and related services (each, an "Application"), which enable users to arrange and schedule service, logistics, and/or delivery services and/or to purchase certain goods, including with third-party providers of such services and goods under agreement with BrushHour or certain of BrushHour's affiliates ("Third Party Providers"). In certain instances, the Services may also include an option to receive service, logistics, and/or delivery services for an upfront price, subject to acceptance by the respective Third-Party Providers. Unless otherwise agreed by BrushHour in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN SERVICE, LOGISTICS, AND/OR DELIVERY SERVICES THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH BrushHour AS A PROVIDER OF SERVICE, LOGISTICS, OR DELIVERY SERVICES OR AS A SERVICE CARRIER.
License.
Subject to your compliance with these Terms, BrushHour grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by BrushHour and BrushHour's licensors.
Restrictions.
You may not: (i) remove any copyright, trademark, or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by BrushHour; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Provision of the Services.
You acknowledge that portions of the Services may be made available under BrushHour's various brands or request options associated with service or logistics, including the service request brands currently referred to as "BrushHour''. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of BrushHour's subsidiaries and affiliates; or (ii) independent Third-Party Providers.
Third-Party Services and Content.
The Services may be made available or accessed in connection with third-party services and content (including advertising) that BrushHour does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content. BrushHour does not endorse such third-party services and content and in no event shall BrushHour be responsible or liable for any products or services of such third-party providers. Additionally, Apple Inc., Google, Inc., Microsoft Corporation, or BlackBerry Limited will be a third-party beneficiary to this contract if you access the Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third-party beneficiary's terms of service.
Ownership.
The Services and all rights therein are and shall remain BrushHour's property or the property of BrushHour's licensors. Neither these Terms nor your use of the Services conveys or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner BrushHour's company names, logos, product and service names, trademarks or services marks or those of BrushHour's licensors.
3.2 The Service Terms
This Terms of Service Agreement (this “Agreement”) is a binding contract between you (“Customer,” “you” or “your”) and BrushHour Systems, LLC, an Wyoming limited liability company, and its subsidiaries and affiliates (collectively, “BrushHour,” “we,” or “us”). This Agreement governs your access to and use of the Services (as defined below).
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE ACCEPT BUTTON OR BY ACCESSING OR USING THE SERVICES (the “Effective Date”). BY CLICKING ON THE ACCEPT BUTTON OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
YOU SHOULD CAREFULLY READ THIS AGREEMENT BEFORE PURCHASING ANY SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK ON THE ACCEPT BUTTON OR USE THE SERVICES. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION 9.3 TO RESOLVE ANY DISPUTES WITH BrushHour (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT).
1. GENERAL TERMS.
1.1 BrushHour provides car washes to its customers (collectively, “Services”), which may include a partnership or agreement granting access to the Services (each a “partnership”). BrushHour also provides BrushHour accounts to its customers to allow them to manage Services that they receive (each an “account”), which can be accessed as available through online services that BrushHour may make available from time to time.
1.2 The types of car wash Services may vary at each BrushHour Service Location. In addition to the car wash Services, BrushHour may provide certain additional products and services (“additional Services”), such as vacuums, hand towel drying services, towels, dashboard wipes, or other products and services BrushHour makes available at a BrushHour Service Location from time to time; provided, however, BrushHour does not guarantee that (a) any additional Services will be available or continue to be available, as part of the car wash Services, (b) that the same additional Services will be available at each BrushHour Service Location, or (c) that any additional Services will be provided without additional charge.
1.3 We may offer a number of different plans, including the following:
Our employees, independent contractors, and partners hold the right to not perform services in the following areas at BrushHour’s Discretion:
Areas that are said to be against government laws and regulations.
Areas that are unfit or unsafe for the safety of our employees and partners.
Areas with high traffic streets.
unless there is a bike lane, high traffic streets may vary.
Areas with parking garages or parking lots that require payment with pay gates/attendants.
Areas at, on, or near Airport property.
Areas that look to be or are considered government property without written consent emailed from an official or holding power of the city, state, or government.
Service areas and vehicles that are surrounded or covered with heavy snow, ice, frost, or black ice.
During extreme weather (below 27° F (“feels like” temperatures) or above 89° F (feels like temperatures), our Crews may temporarily request a small indoor space (or a bay) upon our arrival to avoid frozen door jambs and/or to provide a quality service. This ensures vehicles are readily available for immediate display upon the completion of service. In the event, that a two-car accessible space cannot be provided, and if below 27° F (“feels like” temperatures) or above 89° F (feels like temperatures, crews may reschedule due to extreme weather conditions.
While our team implements many internal policies to ensure vehicles are safely
maintained, some solvents may affect some plastic under the hood over extended
periods of time, especially when engine bay service is repeated.
Our employees, independent contractors, and partners are not responsible for any misplaced or lost items in the vehicle. BrushHour suggests that customers and members remove any valuable items and belongings from your vehicle before service begins. BrushHour asks that all medium and large trash (larger than 5 inches) be removed from the vehicle before service begins. BrushHour does not haul or take away food from the location of service.
While it is in our best interest to provide stellar service and clean vehicles thoroughly avoiding damage as best as possible, BrushHour does not guarantee 100% stain removal, 100% odor removal, 100% sand removal, or 100% pet hair removal. For the health and safety of our community, we do not clean human or animal bodily fluids.
1.4 This Agreement governs your use of the Services. By using the Services, you agree (a) that you have read and understood this Agreement, and that this Agreement creates a valid and binding agreement, enforceable against you in accordance herewith; (b) to be bound by this Agreement and any terms, conditions or other policies of BrushHour, as each may be amended or supplemented from time to time as described in Section 4 below; and (c) that your use of the Services shall comply with all applicable federal, state and local laws or regulations, and that you are solely responsible for your compliance with, familiarity with, and understanding of any such laws applicable to your use.
1.5 Additionally, and without limiting the foregoing, by using the Services, you represent and warrant that you: (a) are eighteen (18) years of age or older; (b) are not currently restricted from using the Services, or not otherwise prohibited from having an account for the Services; (c) are not a competitor of the Services or are not using the Services for reasons that compete with the Services or any other product or service offered by BrushHour; (d) have full power and authority to enter into and perform this Agreement, and doing so will not violate any other agreement to which you are a party; (e) will not violate any rights of BrushHour, including intellectual property rights such as copyright or trademark rights; and (f) agree to provide at your cost anything necessary to use the Services.
1.6 Without limiting the generality of the foregoing or any other provision hereof, you acknowledge and agree as follows:
Not to use the Services in any manner that is, or could reasonably be construed to be, unlawful, fraudulent, misleading, malicious, or discriminatory;
The Services under this Agreement are for personal use only. The Services may not be used for Commercial Use (as defined below);
The Services may not be used for Non-Compatible Vehicles (as defined below); and
Except as set forth in this Agreement or communicated to you in writing by BrushHour, no Services may be combined with any other Services, programs, or discounts.commercial fleets may be able to purchase a One-time Wash with an applicable discount provided by emailing BrushHour.
As used herein: (a) “Commercial Use” means the use of the Services for vehicles that are being used or maintained (i) for the transportation of persons or property for hire, compensation, or profit, (ii) by a business, governmental entity or other organization, or (ii) for any other commercial purpose; and (b) “Non-Compatible Vehicles” means vehicles that are not compatible with the equipment at the BrushHour Service Location for any reason, including, without limitation, vehicles that (i) are incompatible by size, design or modification, or (ii) have accessories, trailers or other items attached to the vehicle that make the vehicle incompatible.
1.7 Access Credentials. You are responsible for keeping your Access Credentials (as defined below) associated with the Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us upon learning about any unauthorized access to your Access Credentials. “Access Credentials” means any user name, email address, identification number, password, license plate or license plate number, an access key or token, PIN or another method, technology or device used, alone or in combination, to verify a customer and/or access the Services.
1.8 Compliance. You are responsible for identifying, understanding, and complying with (i) all laws (including, but not limited to, the Americans with Disabilities Act and applicable laws governing your collection, use, disclosure, security, processing, and transfer of data ), rules and regulations that apply to your provision of service(s) (including whether you are permitted to provide services at all) in the jurisdiction(s) in which you operate (your “ Region ”) and (ii) this Agreement (collectively, the “Requirements”). Notwithstanding anything to the contrary in this Agreement, for the avoidance of doubt, your ability to access and use our Platform is at all times subject to your compliance with the Requirements. You agree not to access or attempt to access our Platform if you are not in compliance with the requirements.
1.9 Vehicle Standards.
(a) During your account creation and registration, we will collect, and may verify, certain information about you and the vehicle(s) you use to schedule service(s) (“ your vehicle ”).
(b) You agree that your vehicle will be properly registered, licensed, and suitable to schedule service(s) in your Region. You represent that at all times during the provision of any service(s) your vehicle will be in your lawful possession with valid authorization to use your vehicle to complete scheduled service(s) in your Region. You agree that your vehicle will be in safe operating condition, consistent with safety and maintenance standards for a vehicle of its type in the new and fairly used carcommercial fleet industry. You agree to monitor for and repair any parts that are recalled by your vehicle’s manufacturer (as well as anything else the Requirements applicable to your particular Region may require).
1.10 Use of BrushHour Branded Materials.
(a) Except to the extent necessary to comply with applicable law, you are not required to use, wear or display BrushHour’s name or logo on your vehicle or clothing, or to use signaling lights, stickers, decals, or other such materials displaying BrushHour’s name or logo (collectively “ BrushHour Branded Materials ”).
(b) Your authorized display of BrushHour Branded Materials may signify to Crew Chief(s) and Crew Member(s)s and Merchants that your car wash and detail services are facilitated by our Platform. BrushHour grants you a limited license to use, wear or display BrushHour Branded Materials provided directly to you by BrushHour (“ Authorized BrushHour Branded Materials ”) when to schedule service(s) solely for the purpose of identifying yourself and your vehicle to Crew Chief(s) and Crew Member(s)s and Merchants as someone selling car wash and detail services facilitated by our Platform. You agree not to (i) use, wear, or display BrushHour-Branded Materials that are not Authorized BrushHour Branded Materials(ii) purchase, accept, offer to sell, sell or otherwise transfer BrushHour Branded Materials that are not Authorized BrushHour Branded Materials or (iii) offer to sell or sell, or otherwise transfer Authorized BrushHour Branded Materials, without our prior written permission.
(c) The parties expressly agree that your access to, or use of, BrushHour Branded Materials, whether or not authorized, does not indicate an employment or other similar relationship between you and us. You further agree not to represent yourself as our employee, representative, or agent for any purpose or otherwise misrepresent your relationship with us.
1.11. Crashes, Criminal Offenses, and Other Compliance Obligations.
For the purpose of assisting us with our compliance and insurance obligations, you agree to notify us within 24 hours and provide us with all reasonable information relating to any incident (including any crash involving your vehicle) that occurs during your provision of a car wash and detail service and you agree to cooperate with any investigation and attempted resolution of such incident.
If you schedule service for the vehicle(s), the obligations in this Section 1.11 shall apply.
(a) You will maintain automobile liability insurance on your vehicle(s) that provides protection against bodily injury and property damage at coverage levels that satisfy the minimum requirements to operate a vehicle on public roads. You will notify us in writing immediately if the policy you have is canceled.
(b) If you have any questions or concerns about the scope or applicability of your insurance coverage, it is your responsibility to resolve them with your insurer.
(c) We may, in our sole discretion, choose to maintain auto insurance related to your service(s), but we are not required to provide you with any specific coverage for loss to you or your vehicle unless we specifically describe it in an addendum to this MSA. We can change or alter insurance that is maintained by us, if any, at any time without notice to you or authorization from you.
3.2. Other service(s). If you would like service for a motorcycle (or similar), or vintage vehicle older in age than the year 2000, we will not provide any form of insurance and you will be responsible for reimbursing us for any amounts that we are found liable for in respect to your use of such automobile or other motorized devices outside our normal service vehicle(s).
1.12. Location-Based Technology Services; Communication Consents.
(a) Your device geo-location information is required for the proper functioning of our Platform, and you agree to not take any action to manipulate or falsify your device geo-location. You grant us the irrevocable right to obtain your geolocation information and to share your location with third parties, including your Crew Chief(s) and Crew Member(s)s and Merchants, who will see the approximate location of your vehicle in the applicable BrushHour app before and during the car wash and detail service. We may not and will not use this information to attempt to supervise, direct, or control you or your provision of service(s).
(b) You agree that we may contact you by email, telephone, or text message (including by an automatic telephone dialing system) at any of the phone numbers provided by you, or on your behalf, in connection with your account. You also understand that you may opt-out of receiving text messages from us at any time, using the mobile device that is receiving the messages, or by contacting us at BrushHour.cofleet. Notwithstanding the foregoing, we may also contact you by any of the above means, including by SMS, in case of suspected fraud or unlawful activity by you or on your account.
1.13 Submitting Merchant Receipts. As part of your provision of Combined Services,
you understand and agree that you shall timely submit a valid copy of the itemized Merchant receipt evidencing the amount spent for the items pre-authorized by the Crew Chief(s) and Crew Member(s) and confirm prices, in the Scheduler Web App / App / Website or as otherwise indicated by us. You acknowledge and agree that in the event of an invalid receipt submission, you may be required to reimburse Crew Chief(s) and Crew Member(s). We will provide you notice electronically of any material changes to this obligation.
2. VIOLATION; TERMINATION.
2.1 BrushHour reserves the right to investigate violations of any of this Agreement or any other policies of BrushHour or the Services, or any other violations of any state, federal or local law, rule or regulation, and to pursue any remedy available to BrushHour whether at law, in equity or otherwise. You hereby acknowledge and agree that BrushHour may notify, involve and cooperate with law enforcement authorities in investigating and prosecuting users who violate this Agreement or any other policies of BrushHour or the Services, and any other violations of any state, federal or local laws, rules or regulations.
2.2 You further acknowledge and agree that BrushHour may, in its sole discretion, suspend or cancel the partnership of, and terminate this Agreement with, any user that breaches this Agreement. The breach includes, without limitation, your failure to make any and all payments when due.
2.3 Notwithstanding anything to the contrary, BrushHour may refuse, in its sole discretion, to permit any use of the Services, and may refuse to permit any person to use the Services for any reason at any time.
3. PAYMENT AND REFUNDS.
3.1 In consideration of the provision of the Services and the rights granted to you under this Agreement, you shall pay the fees set out in BrushHour’s then-current fee schedule (available when you log-in on the billing section). The fees will vary depending on the Services purchased and may be updated from time to time as described in Section 4 below.
3.2 An ACH, valid credit, or valid debit card will be required for billing and invoicing purposes. You hereby allow BrushHour to store (or cause a third party to store on behalf of BrushHour) such payment information and agree to the following policies and procedures for payment of fees related to the Services:
(a) All fees charged by BrushHour in connection with the Services are exclusive of any taxes, levies, or duties imposed by any taxing authority, and you shall be, and hereby are, responsible for the payment of all such taxes, levies, or duties arising from your use of the Services.
(b) All payments made to BrushHour in connection with the Services are non-refundable, and BrushHour does not offer and is not required to provide any refunds or credits. There is no circumstance in which you will be entitled to, or BrushHour is required to provide a refund or credit. In its sole discretion, BrushHour may provide a refund in a manner BrushHour deems reasonable if (i) BrushHour terminates your agreement without cause before the end of a billing period for which you have paid in full, or (ii) you are seeking a refund otherwise specifically provided for by this Agreement or other written policies of the Services and/or BrushHour then in effect and fully applicable.
4. MODIFICATIONS.
4.1 You acknowledge and agree that we have the right, in our sole discretion, to modify the Services, fees, costs, and pricing, and this Agreement from time to time and that modified terms become effective on posting. You will be notified of modifications through posts on https://www.BrushHour.cofleets and may be notified pursuant to the means described in Section 4.3 below. You are responsible for reviewing and becoming familiar with any such modifications. BrushHour will endeavor to provide at least seven (7) days’ advance notice of changes to any service level that BrushHour reasonably anticipates may result in a material reduction in quality or Services. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms.
4.2 Notwithstanding the foregoing or anything to the contrary, (a) BrushHour reserves the right from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof); and (b) BrushHour shall not be liable to you, or any third party, for any damages, costs, expenses or other liabilities related to any modification, price change, suspension or discontinuance of the Services.
4.3 Without limiting the foregoing, BrushHour may use email to an email address associated with your account, even if we have other contact information, to alert you to any modifications. You also agree that BrushHour may communicate with you through any available means including email, mobile number, telephone, or delivery services, including the postal service, about your account or the Services. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive information about the Services or pricing.
5. UPGRADING, DOWNGRADING, OR CANCELLING PARTNERSHIP
5.1 Your Services may be upgraded, downgraded or canceled, subject to the terms hereof. When you upgrade, you will be charged the difference between your upgraded Services and your prior Services. When you downgrade Services, you will be charged the applicable fee for the downgraded Services at the beginning of the next billing period after you downgrade.
6. DISCLAIMER OF WARRANTIES.
6.1 THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH NO WARRANTIES WHATSOEVER. BrushHour AND EACH USER OF THE SERVICES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. Without limiting the generality of the foregoing or any other provision hereof, BrushHour does not warrant that the Services will be available or that any particular BrushHour Service Location will be operational at all times.
6.2 YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LIABILITY, CLAIM, DAMAGES, LOSS, COST OR EXPENSE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, THAT RESULTS FROM OR ARISES FROM YOUR USE OF THE SERVICES.
7. LIMITATIONS OF LIABILITY.
WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, BrushHour, ITS AFFILIATES, AND ITS SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, AND AGENTS, SHALL NOT BE LIABLE TO YOU, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR (A) ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, REVENUES OR BUSINESS, ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT, OR (B) ANY DAMAGES OF ANY KIND ARISING OUT OF, UNDER OR RELATING TO THE SERVICES IN EXCESS OF THREE TIMES THE MOST RECENT PAYMENT IN CONNECTION WITH THE SERVICES, IF ANY, OR $100, WHICHEVER AMOUNT IS GREATER. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL THEIR ESSENTIAL PURPOSE.
8. INDEMNIFICATION.
You agree to indemnify and hold harmless BrushHour, its affiliates, and its subsidiaries, and their respective officers, directors, managers, shareholders, members, employees, and agents, from any and all claims, losses, damages, liabilities, and any other costs and expenses (including attorneys’ fees), arising from or related to a claim (i) due to your failure to comply with this Agreement, or (ii) due to your negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement.
9. MISCELLANEOUS.
9.1 Privacy Policy. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy (available at: https://www.BrushHour.co/privacy), and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.
9.2 Governing Law. Any claim under this Agreement or otherwise related to the Services or BrushHour shall be governed by the laws of the State of Wyoming without regard to its conflict of law provisions.
9.3 Arbitration. IN THE EVENT OF ANY DISPUTE (OTHER THAN ONE FILED IN A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS, OR AS SET FORTH IN SECTION 9.6) BETWEEN YOU AND BrushHour (“BrushHour” AS USED IN THIS PROVISION MEANS BrushHour, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS), YOU AND BrushHour CONSENT TO ARBITRATE THAT DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN-CURRENT RULES OF THE DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN-CURRENT RULES OF THE AMERICAN ARBITRATION ASSOCIATION RATHER THAN LITIGATE THE DISPUTE IN COURT. YOU AND BrushHour ALSO AGREE THAT THE FEDERAL ARBITRATION ACT GOVERNS THE ARBITRABILITY OF ALL DISPUTES BETWEEN YOU AND BrushHour. IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY BrushHour IN WRITING, BY MAIL TO BrushHour AT PO BOX #1665 Chicago, IL 60604, WITHIN 30 DAYS OF THE EFFECTIVE DATE, STATING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH BrushHour BY ARBITRATION. IN ADDITION, YOU AGREE NOT TO PARTICIPATE IN A CLASS ACTION, A CLASS-WIDE ARBITRATION, CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT IF BrushHour IS A PARTY TO THE PROCEEDING. THE ARBITRATOR SHALL INTERPRET AND DETERMINE THE VALIDITY OF THE ARBITRATION PROVISION, INCLUDING ANY ALLEGED UNCONSCIONABILITY.
9.4 Severability. If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified to render it enforceable and effective to the maximum extent possible to effect the intent of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement will not be affected in any way.
9.5 Entire Agreement (The Service Terms). You agree that this Agreement and any terms, conditions, or other policies of BrushHour constitute the entire, complete, and exclusive agreement between you and us regarding the Services, and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement.
9.6 Equitable Remedies. You agree that BrushHour would be irreparably damaged if this Agreement were not specifically followed and enforced. In such an event, you agree that BrushHour shall be entitled, without bond or other security, or proof of damages, to appropriate equitable relief in the event you breach this Agreement, and that the awarding of equitable relief to BrushHour will not limit its ability to receive remedies that are otherwise available to BrushHour under applicable laws. Notwithstanding Section 9.3, you agree that BrushHour shall still be allowed to apply for equitable relief in any jurisdiction.
9.7 Assignment. BrushHour may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign this Agreement without BrushHour’s prior written consent. Your assignment of this Agreement without BrushHour’s prior written consent shall be void.
9.8 Waivers. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches.
9.9 Headings. The division of this Agreement into sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement.
9.10 Questions. Questions about The Service Terms clause and agreement should be addressed via email.
4. Access and Use of the Services
User Accounts.
To use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. Account registration requires you to submit to BrushHour certain personal information, such as your name, address, mobile phone number, and age, as well as at least one valid payment method supported by BrushHour. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by BrushHour in writing, you may only possess one Account.
User Requirements and Conduct.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive service or logistics services from Third Party Providers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances, you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
Referrals and Promotional Codes.
BrushHour may, in its sole discretion, create referral and/or promotional codes ("Promo Codes") that may be redeemed for discounts on future Services and/or a Third Party Provider's services, or other features or benefits related to the Services and/or a Third Party Provider's services, subject to any additional terms that BrushHour establishes. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by BrushHour; (iii) may be disabled by BrushHour at any time for any reason without liability to BrushHour; (iv) may only be used pursuant to the specific terms that BrushHour establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. BrushHour reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that BrushHour determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of BrushHour's Terms.
User-Provided Content.
BrushHour may, in BrushHour's sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to BrushHour through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to BrushHour, you grant BrushHour a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and BrushHour's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents, and releases necessary to grant BrushHour the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor BrushHour's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by BrushHour in its sole discretion, whether or not such material may be protected by law. BrushHour may, but shall not be obligated to, review, monitor, or remove User Content, at BrushHour's sole discretion and at any time and for any reason, without notice to you.
Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. BrushHour does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
5. Payment
You understand that use of the Services may result in charges to you for the services or goods you receive ("Charges"). BrushHour will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, municipal tolls, airport surcharges, or processing fees for split payments. Please visit www.BrushHour.com for further information on your particular location.
As between you and BrushHour, BrushHour reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time at BrushHour's sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. BrushHour will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. BrushHour may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel up to 48 hours prior to Services to the commencement of such Services, in which case you may be charged a cancellation fee on a Third Party Provider’s behalf. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback. BrushHour may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Third Party Providers or other third parties.
In certain cases, with respect to Third-Party Providers, Charges you incur will be owed directly to Third Party Providers, and BrushHour will collect payment of those charges from you, on the Third Party Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as a payment made directly by you to the Third Party Provider. In such cases, you retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods, and Charges you incur will be owed to the Third Party Provider. BrushHour will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good. This payment structure is intended to fully compensate a Third Party Provider, if applicable, for the services or goods obtained in connection with your use of the Services. In all other cases, Charges you incur will be owed and paid directly to BrushHour or its affiliates, where BrushHour is solely liable for any obligations to Third Party Providers. In such cases, you retain the right to request lower Charges from BrushHour for services or goods received by you from a Third Party Provider at the time you receive such services or goods, and BrushHour will respond accordingly to any request from you to modify the Charges for a particular service or good. Except with respect to taxicab service services requested through the Application, BrushHour does not designate any portion of your payment as a tip or gratuity to a Third Party Provider. Any representation by BrushHour (on BrushHour's website, in the Application, or BrushHour's marketing materials) to the effect that tipping is "voluntary," "not required," and/or "included" in the payments you make for services or goods provided is not intended to suggest that BrushHour provides any additional amounts, beyond those described above, to a Third Party Provider you may use. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary.
Repair or Replacement Fees.
You shall be responsible for the cost of repair for damage to, or necessary replacement of, Provider tools and property resulting from use of the Services under your Account in excess of normal "wear and tear" damages and necessary replacement ("Repair or Replacement"). In the event that a Repair or Replacement request is verified by BrushHour in BrushHour's reasonable discretion, BrushHour reserves the right to facilitate payment for the reasonable cost of such Repair or Replacement using your payment method designated in your Account. Such amounts will be transferred by BrushHour to a Third Party Provider, if applicable, and are non-refundable.
6. Electronic Communications
When you visit BrushHour.co or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Website. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Terms and Conditions for BrushHour's Text Message Program
IMPORTANT! PLEASE READ THESE BrushHour's TEXT MESSAGE PROGRAM TERMS AND CONDITIONS CAREFULLY BEFORE SIGNING UP FOR ANY BrushHour'sTEXT MESSAGE PROGRAM. BY SIGNING UP FOR ONE OR MORE OF BrushHour'sTEXT MESSAGE PROGRAMS, YOU AGREE TO ABIDE BY AND BE BOUND TO THESE BrushHour TEXT MESSAGE TERMS AND CONDITIONS.
BrushHour operates marketing and transactional text message programs, which are further described below in detail. The following terms apply to all of the Text Programs: All of the BrushHour'stext message programs and participation in any text message program is also governed by other provisions of these BrushHour Terms & Conditions and Privacy Policy.
By opting into any text message program, you consent to the use of an electronic record to document your Opt-In. To withdraw that consent, request documentation of the Opt-In, or update our records with your contact information, please call (224) 707-0527. These Terms & Conditions still will apply if you withdraw the consent mentioned above or opt-out of each of the text message programs. If you feel comfortable, provide your name or at least the phone number on the voice message system explicitly stating that you would like to opt-out of the BrushHour'sText Message Program.
By signing up for one or more text messaging programs or scheduling on this website, you expressly consent to receive marketing or non-marketing text messages, as applicable, from or on behalf of BrushHour, including but not limited to, text messages made with an automatic telephone dialing system (“autodialer”), at the telephone number(s) that you provide. You may opt-out of these communications at any time. Consent to receive text messages is not a condition of purchasing any property, goods, or services.
Program Description - BrushHour and its service providers may use an autodialer to deliver text messages to you. BrushHour text messages are intended to provide you with marketing and promotional information regarding BrushHour products and services (e.g., appointments and promotions offered by BrushHour or any of its authorized dealers). We may also provide you with transaction-related information.
After joining any of BrushHour's marketing text programs, you may receive text messages regarding special offers, new products, in-store events, shopping cart reminders and other marketing communications related to the applicable program that you joined.
Message Frequency - The number of BrushHour text messages that you receive will vary depending on which BrushHour text messaging programs for which you sign up to receive messages and the frequency of the messages sent by those programs. You will receive a maximum of approximately seven (7) marketing or promotional text messages per week.
Cost - Message and data rates may apply to each text message sent or received in connection with BrushHour text messages, as provided in your mobile telephone service rate plan (please contact your mobile telephone carrier for pricing plans), in addition to any applicable roaming charges. BrushHour does not impose a separate fee for sending BrushHour text messages; however, you are responsible for any fees imposed by your mobile carrier of any kind whatsoever.
How to Opt-In - To opt-in to receive text messages from a BrushHour text messaging program(s), please follow the instructions provided by the specific program from which you wish to receive messages. For example: (i) you may be asked to check an opt-in check box on the collection page where you entered your phone number; (ii) by responding to a prompt to text a keyword as directed to a number; (iii) or by replying in the affirmative in the manner indicated in an initial text message (e.g., Y or Yes).
How to Opt-Out - To stop receiving text messages from a specific BrushHour text messaging program, text STOP to the five-digit short code or phone number for the text messaging program from which you no longer wish to receive messages. You acknowledge that you may then receive one (1) final message from BrushHour confirming your opt-out of that text messaging program. Following such a confirmation message, no additional text messages associated with that program will be sent to you unless you re-activate your subscription. You will remain opted into other BrushHour text messaging programs. You may also indicate your choice to stop receiving promotional text messages from BrushHour by calling (224) 707-0527.
Your Mobile Telephone Number - By completing the opt-in process for any text program, you represent and confirm that you are the account holder for the mobile telephone number(s) that you enroll and that you are authorized to grant BrushHour the right to send text messages to that number. You are responsible for notifying BrushHour immediately if you change your mobile telephone number. You may notify BrushHour of a number change by contacting BrushHour at (224) 707-0527. If you feel comfortable, provide your name or at least the phone number on the voice message system explicitly stating that you would like to change your number in the BrushHour'sText Message Program. If you change your mobile phone number, you agree to opt out of the program prior to changing your mobile number.
You agree to indemnify, defend and hold us harmless from any third-party claims, liability, damages, expenses, and/or costs arising from your use of the program, from you providing us with a phone number that is not your own, or by your failure to notify BrushHour if you change your telephone number or if you do not opt-out your prior telephone number, including but not limited to those arising under the Telephone Consumer Protection Act (“TCPA”).
Access or Delivery to Mobile Network is Not Guaranteed - It is your responsibility to determine if your mobile carrier supports text messaging and if your mobile device is capable of receiving text messages. Your receipt of our text messages is subject to the terms and conditions of your agreement(s) with your mobile carrier.
Delivery of information and content to a mobile device may fail due to a variety of circumstances or conditions. You understand and acknowledge that network services, including but not limited to mobile network services, are outside of BrushHour’s control, and BrushHour is not responsible or liable for issues arising from such network services (e.g., delayed or undelivered messages or the security of any messages).
Carriers are not liable for delayed or undelivered messages.
Support/Help - To request more information, you may contact BrushHour at [email protected].
Eligibility - To receive BrushHour text messages, you must be a resident of the United States and 18 years of age or older.
Changes to Terms and Conditions - BrushHour may revise, modify, or amend these BrushHour'sText Message Program at any time. Any such revision, modification, or amendment shall take effect when it is posted to BrushHour's website at https://BrushHour.co/terms. You agree to review these BrushHour'sText Message Program periodically to ensure that you are aware of any changes. Your continued consent to receive BrushHour text messages will indicate your acceptance of those changes.
Termination of Text Messaging - We may suspend or terminate your receipt of BrushHour text messages if we believe you are in breach of these BrushHour'sText Message Program Terms and Conditions. Your receipt of BrushHour text messages is also subject to termination in the event that your mobile telephone service terminates or lapses. BrushHour reserves the right to modify or discontinue, temporarily or permanently, all or any part of any BrushHour'sText Message Program, with or without notice.
7. Disclaimers; Limitation of Liability; Indemnity.
DISCLAIMER.
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." BrushHour DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, BrushHour MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. BrushHour DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY, OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY.
BrushHour SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF BrushHour, EVEN IF BrushHour HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BrushHour SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY, OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF BrushHour HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BrushHour SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND BrushHour'S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS PROVIDING SERVICE SERVICES REQUESTED THROUGH SOME REQUEST PRODUCTS MAY OFFER PEER-TO-PEER SERVICE SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED, CERTIFIED, OR PERMITTED BY OR THROUGH THE BrushHour PLATFORM.
THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE SERVICE, GOODS, OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT BrushHour HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICE, GOODS, OR LOGISTICS SERVICES PROVIDED TO YOU BY THIRD-PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, BrushHour'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON BrushHour'S CHOICE OF LAW PROVISION SET FORTH BELOW.
Indemnity.
You agree to indemnify and hold BrushHour and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) BrushHour's use of your User Content; or (iv) your violation of the rights of any third party, including Third-Party Providers.
8. Other Provisions
Choice of Law.
These Terms are governed by and construed in accordance with the laws of the State of Wyoming, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Wyoming to assert claims under Wyoming law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of Wyoming law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Wyoming law to you if you do not otherwise reside in Wyoming. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or any arbitrable disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.
Claims of Copyright Infringement.
Claims of copyright infringement should be sent to BrushHour's designated agent. Please contact us at [email protected] for the designated address and additional information.
Notice.
BrushHour may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first-class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to BrushHour, with such notice deemed given when received by BrushHour, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o BrushHour Systems, LLC. The name and current contact information for the registered agent in each state are available online.
General.
You may not assign these Terms without BrushHour's prior written approval. BrushHour may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of BrushHour's equity, business, or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, BrushHour, or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. BrushHour's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BrushHour in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.
Deactivation. You consent to and we may temporarily deactivate your account without notice to investigate whether you have engaged in, or your account has been used in, an activity that is deceptive, fraudulent, unsafe, illegal, harmful to our brand, business or reputation, or that violates this Agreement (including the policies incorporated herein by reference)(any of the foregoing, a “ Material Breach or Violation ”). You also consent to and we may terminate this Agreement or permanently deactivate your account without notice if we determine in our discretion that a Material Breach or Violation has occurred.
Effect of Termination and Survival. Upon termination, each party will remain responsible for its respective liabilities or obligations that accrued before or as a result of such termination. Once the Agreement is terminated you will no longer access our Platform to schedule service(s). Sections 1, 2, 4, 5, 6-9, 12, and 13 shall survive any termination or expiration of this Agreement.
8.1. Information
We may collect and disclose information from or about you when you create an account, interact with our Platform, or schedule service(s) and as otherwise described in our Privacy Policy. Notwithstanding anything herein to the contrary (a) the collection, use, and disclosure of such information will be made in accordance with our Privacy Policy and (b) if you elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with, or related to, us or our Platform, we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner.
8.2. Confidentiality
8.2.1. Confidential Information. Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party or third parties (“ Confidential Information ”). Confidential Information includes User Information and the volume of car wash and detail services, marketing, and business plans, business, financial, technical, operational, and such other, non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential. Confidential Information does not include any information that: (a) was in the receiving party’s lawful possession prior to the disclosure, as clearly and convincingly
corroborated by written records, and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (b) is lawfully disclosed to the receiving party by a third party without actual, implied or intended restriction on disclosure through the chain of possession, or (c) is independently developed by the receiving party without the use of or access to the Confidential Information, as clearly and convincingly corroborated by written records.
8.3. Obligations.
Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third-party, except to its employees, officers, contractors, agents and service providers (" Permitted Persons ") as necessary to perform their obligations under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party; subject to applicable law and our internal record-keeping requirements.
8.4. Remedies.
The unauthorized use or disclosure of any Confidential Information would cause irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, the parties have the right to obtain immediate equitable relief to enjoin any unauthorized use or disclosure of Confidential Information disclosed by the other party, in addition to any other rights or remedies described in Section 13, applicable law or otherwise.
8.5. Intellectual Property
We reserve all rights not expressly granted in this Agreement. The Scheduler Web App / App / Website, our Platform, and all data gathered through our Platform, including all intellectual property rights therein (the “ Platform IP ”), are and remain our property and/or that of our licensors, as applicable. Neither this Agreement nor your use of BrushHour’s or our licensors’ company names, logos, products or service names, trademarks, service marks, trade dress, other indicia of ownership, or copyrights ('' BrushHour Names, Marks, or Works ”) or the Platform IP conveys or grants to you any rights in or related to the Platform IP, or related intellectual property rights, including
BrushHour’s Names, Marks, or Works, except for the limited license granted above. You shall not, and shall not allow any other party to: (a) license, sublicense, copy, modify, distribute, create, sell, resell, transfer, or lease any part of the Platform IP or Authorized BrushHour-Branded Materials; (b) reverse engineer or attempt to extract the source code of our software, except as allowed under law; (c) use, display, or manipulate any of BrushHour Names, Marks, or Works for any purpose other than to to schedule service(s); (d) create or register any (i) businesses, (ii) URLs, (iii) domain names, (iv) software application names or titles, or (v) social media handles or profiles that include BrushHour Names, Marks, or Works or any confusingly or substantially similar mark, name, title, or work; (e) use BrushHour Names, Marks, or Works as your social media profile picture or wallpaper; (f) purchase keywords (including, but not limited to Google AdWords) that contain any BrushHour Names, Marks, or Works; (g) apply to register, reference, use, copy, and/or claim ownership in BrushHour’s Names, Marks, or Works, or in any confusingly or substantially similar name, mark, title, or work, in any manner for any purposes, alone or in combination with other letters, punctuation, words, symbols, designs, and/or any creative works, except as may be permitted in the limited license granted above; (h) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any part of our Platform or data; or (i) aggregate our data with competitors’.
8.6. Third-Party Services
From time to time we may permit third parties to offer their services to users of our Platform. Third-party services may be subject to additional terms (including pricing) that apply between you and the party(ies) providing such services. If you choose to access the third-party services you understand that the providers of the third-party services are solely responsible for liabilities arising in connection with the access and use of such third party services. While we may allow users to access such services through our Platform and we may collect information about our users’ use of such services, we may not investigate, monitor, or check such third-party services for accuracy or completeness.
8.7. Miscellaneous
8.7(a) Modification. You will only be bound by modifications or supplements to this MSA on your acceptance, but if you do not agree to them, you may not be allowed to access our Platform. Such modifications or supplements may be provided to you only via electronic means.
From time to time we may modify information hyperlinked in this MSA (or the addresses where such information may be found) and such modifications shall be effective when posted.
8.7(b) Severability.
The invalidity of any provision of this Agreement does not affect the rest of this Agreement. The parties shall replace the invalid or non-binding provision with provision(s) that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
8.7(c). Assignment.
We may freely assign or transfer this Agreement or any of our rights or obligations in them, in whole or in part, without your prior consent. You agree not to assign this Agreement, in whole or in part, without our prior written consent, and any attempted assignment without such consent is void.
8.7(d) Conflicts.
Except with respect to the Arbitration Provision, if there is a conflict between this MSA and any supplemental terms between you and us, those supplemental terms will prevail with respect to the specific conflict if explicitly provided therein, and is in addition to, and a part of, this Agreement.
8.8. Interpretation.
In this Agreement, “ including ” and “ include ” mean “ including, but not limited to .”
8.9. Notice.
Except as explicitly stated otherwise, any notices to us shall be given by certified mail, postage prepaid, and return receipt requested to BrushHour, PO Box #1665 Chicago, IL 60690 , Attn: Legal (P&C). All notices to you may be provided electronically including through our Platform or by other means.
8.10. Governing Law.
Except as specifically provided in this MSA, this MSA is governed by the State of Wyoming. The Governing Law shall apply without reference to the choice-of-law principles that would result in the application of the laws of a different jurisdiction.
8.11. Entire Agreement.
Except as specifically set forth in Section 12.4 or the Arbitration Provision, this Agreement constitutes the entire agreement and understanding with respect to the subject matter expressly contemplated herein and therein, and supersedes all prior or contemporaneous agreements or undertakings on this subject matter.
7.12. No Incorporation.
Notwithstanding anything herein to the contrary, no agreement, term, or other provision relating to your indemnification obligations to us will be considered incorporated by reference, or otherwise a part of, this Agreement.
8.13. Existing Documents.
Defined terms in documents accepted in connection with your acceptance of this Agreement that reference a Technology Services Agreement shall be deemed amended to reference analogous terms defined in this Agreement, including by replacing the term “Technology Services Agreement” with “Platform Access Agreement”.
8.14. Arbitration Provision
IN THE EVENT OF ANY DISPUTE (OTHER THAN ONE FILED IN A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS, OR AS SET FORTH IN SECTION 9.6) BETWEEN YOU AND BrushHour (“BrushHour” AS USED IN THIS PROVISION MEANS BrushHour, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS), YOU AND BrushHour CONSENT TO ARBITRATE THAT DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN-CURRENT RULES OF THE AMERICAN ARBITRATION ASSOCIATION RATHER THAN LITIGATE THE DISPUTE IN COURT. YOU AND BrushHour ALSO AGREE THAT THE FEDERAL ARBITRATION ACT GOVERNS THE ARBITRABILITY OF ALL DISPUTES BETWEEN YOU AND BrushHour. IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY BrushHour IN WRITING, BY MAIL TO BrushHour AT PO BOX #1665 Chicago, IL 60604, WITHIN 30 DAYS OF THE EFFECTIVE DATE, STATING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH BrushHour BY ARBITRATION. IN ADDITION, YOU AGREE NOT TO PARTICIPATE IN A CLASS ACTION, A CLASS-WIDE ARBITRATION, CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT IF BrushHour IS A PARTY TO THE PROCEEDING. THE ARBITRATOR SHALL INTERPRET AND DETERMINE THE VALIDITY OF THE ARBITRATION PROVISION, INCLUDING ANY ALLEGED UNCONSCIONABILITY.
COMMERCIAL TERMS & CONDITIONS NOTICE
December 13, 2023
These terms of service constitute a legally binding agreement (the “Agreement”) between you and BrushHour Systems, LLC. (“BrushHour,” "BrushHour Systems, LLC.”, “we,” “us,” or “our”) governing your use of the BrushHour web app, website, and technology platform (collectively, the “BrushHour Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND BrushHour HAVE AGAINST EACH OTHER CAN BE BROUGHT. THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST BrushHour TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS AN Provider, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED BELOW.
By entering into this Agreement, you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provision) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE BrushHour PLATFORM.
1. Contractual Relationship
These Terms of Use ("Terms") govern your access or use, from within the United States and its territories and possessions, of the applications, websites, content, products, and services (the "Services," as more fully defined below in Section 3) made available in the United States and its territories and possessions by BrushHour Systems, LLC and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "BrushHour"). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BrushHour. In these Terms, the words "including" and "include" mean "including, but not limited to."
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. BrushHour may immediately terminate these Terms or any Services with respect to you, or generally, cease offering or deny access to the Services or any portion thereof, at any time for any reason.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH BrushHour ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate region-specific disclosures (e.g., a particular city webpage on BrushHour.com) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
BrushHour may amend the Terms from time to time. Amendments will be effective upon BrushHour's posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If BrushHour changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing BrushHour written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o BrushHour Systems, LLC (the name and current contact information for the registered agent in each state are available online), or (b) by email from the email address associated with your Account to: [email protected]. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).
BrushHour's collection and use of personal information in connection with the Services is described in BrushHour's Privacy Statements located at www.BrushHour.com/privacy.
2. Arbitration Agreement
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against BrushHour on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against BrushHour, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against BrushHour by someone else.
You and BrushHour agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and BrushHour, and not in a court of law.
You acknowledge and agree that you and BrushHour are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and BrushHour otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and BrushHour each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Rules and Governing Law.
The arbitration will be administered by National Arbitration and Mediation (“NAM”) in accordance with NAM’s Comprehensive Dispute Resolution Rules and Procedures and/or NAM’s Supplemental Rules for Mass Arbitration Filings (“NAM’s Rules”) then in effect, except as modified by this Arbitration Agreement. NAM’s Rules are available at www.namadr.com or by calling 1-800-358-2550.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. The parties intend that the FAA will apply even if the application of the FAA would result in the invalidation of this Arbitration Agreement. If the FAA is found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Wyoming.
Process.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in NAM’s Rules. The Arbitrator will be either (1) a retired judge or (2) an attorney licensed to practice law in the state of Wyoming and will be selected by the parties from NAM’s roster of arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then NAM will appoint the Arbitrator in accordance with NAM’s Rules.
Location and Procedure.
Unless you and BrushHour otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely based on documents you and BrushHour submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by NAM’s Rules. Subject to NAM’s Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision.
The Arbitrator will render an award within the time frame specified in NAM’s Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. BrushHour will not seek, and hereby waives all rights BrushHour may have under applicable law to recover, attorneys’ fees and expenses if BrushHour prevails in arbitration.
Fees.
Your responsibility to pay any NAM filing, administrative and arbitrator fees will be solely as set forth in NAM’s Rules.
Changes.
Notwithstanding the provisions above, regarding consent to be bound by amendments to these Terms, if BrushHour changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing BrushHour written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o BrushHour Systems, LLC (the name and current contact information are available online here), or (b) by email to the [email protected]. To be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and BrushHour in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall stay pending the outcome of any individual claims in arbitration.
3.1 The Online Experience & Online Service
The Services comprise mobile applications and related services (each, an "Application"), which enable users to arrange and schedule service, logistics, and/or delivery services and/or to purchase certain goods, including with third-party providers of such services and goods under agreement with BrushHour or certain of BrushHour's affiliates ("Third Party Providers"). In certain instances, the Services may also include an option to receive service, logistics, and/or delivery services for an upfront price, subject to acceptance by the respective Third-Party Providers. Unless otherwise agreed by BrushHour in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN SERVICE, LOGISTICS, AND/OR DELIVERY SERVICES THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH BrushHour AS A PROVIDER OF SERVICE, LOGISTICS, OR DELIVERY SERVICES OR AS A SERVICE CARRIER.
License.
Subject to your compliance with these Terms, BrushHour grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by BrushHour and BrushHour's licensors.
Restrictions.
You may not: (i) remove any copyright, trademark, or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by BrushHour; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Provision of the Services.
You acknowledge that portions of the Services may be made available under BrushHour's various brands or request options associated with service or logistics, including the service request brands currently referred to as "BrushHour''. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of BrushHour's subsidiaries and affiliates; or (ii) independent Third-Party Providers.
Third-Party Services and Content.
The Services may be made available or accessed in connection with third-party services and content (including advertising) that BrushHour does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content. BrushHour does not endorse such third-party services and content and in no event shall BrushHour be responsible or liable for any products or services of such third-party providers. Additionally, Apple Inc., Google, Inc., Microsoft Corporation, or BlackBerry Limited will be a third-party beneficiary to this contract if you access the Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third-party beneficiary's terms of service.
Ownership.
The Services and all rights therein are and shall remain BrushHour's property or the property of BrushHour's licensors. Neither these Terms nor your use of the Services conveys or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner BrushHour's company names, logos, product and service names, trademarks or services marks or those of BrushHour's licensors.
3.2 The Service Terms
This Terms of Service Agreement (this “Agreement”) is a binding contract between you (“Customer,” “you” or “your”) and BrushHour Systems, LLC, an Wyoming limited liability company, and its subsidiaries and affiliates (collectively, “BrushHour,” “we,” or “us”). This Agreement governs your access to and use of the Services (as defined below).
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE ACCEPT BUTTON OR BY ACCESSING OR USING THE SERVICES (the “Effective Date”). BY CLICKING ON THE ACCEPT BUTTON OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
YOU SHOULD CAREFULLY READ THIS AGREEMENT BEFORE PURCHASING ANY SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK ON THE ACCEPT BUTTON OR USE THE SERVICES. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION 9.3 TO RESOLVE ANY DISPUTES WITH BrushHour (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT).
1. GENERAL TERMS.
1.1 BrushHour provides car washes to its customers (collectively, “Services”), which may include a partnership or agreement granting access to the Services (each a “partnership”). BrushHour also provides BrushHour accounts to its customers to allow them to manage Services that they receive (each an “account”), which can be accessed as available through online services that BrushHour may make available from time to time.
1.2 The types of car wash Services may vary at each BrushHour Service Location. In addition to the car wash Services, BrushHour may provide certain additional products and services (“additional Services”), such as vacuums, hand towel drying services, towels, dashboard wipes, or other products and services BrushHour makes available at a BrushHour Service Location from time to time; provided, however, BrushHour does not guarantee that (a) any additional Services will be available or continue to be available, as part of the car wash Services, (b) that the same additional Services will be available at each BrushHour Service Location, or (c) that any additional Services will be provided without additional charge.
1.3 We may offer a number of different plans, including the following:
Our employees, independent contractors, and partners hold the right to not perform services in the following areas at BrushHour’s Discretion:
Areas that are said to be against government laws and regulations.
Areas that are unfit or unsafe for the safety of our employees and partners.
Areas with high traffic streets.
unless there is a bike lane, high traffic streets may vary.
Areas with parking garages or parking lots that require payment with pay gates/attendants.
Areas at, on, or near Airport property.
Areas that look to be or are considered government property without written consent emailed from an official or holding power of the city, state, or government.
Service areas and vehicles that are surrounded or covered with heavy snow, ice, frost, or black ice.
During extreme weather (below 27° F (“feels like” temperatures) or above 89° F (feels like temperatures), our Crews may temporarily request a small indoor space (or a bay) upon our arrival to avoid frozen door jambs and/or to provide a quality service. This ensures vehicles are readily available for immediate display upon the completion of service. In the event, that a two-car accessible space cannot be provided, and if below 27° F (“feels like” temperatures) or above 89° F (feels like temperatures, crews may reschedule due to extreme weather conditions.
While our team implements many internal policies to ensure vehicles are safely
maintained, some solvents may affect some plastic under the hood over extended
periods of time, especially when engine bay service is repeated.
Our employees, independent contractors, and partners are not responsible for any misplaced or lost items in the vehicle. BrushHour suggests that customers and members remove any valuable items and belongings from your vehicle before service begins. BrushHour asks that all medium and large trash (larger than 5 inches) be removed from the vehicle before service begins. BrushHour does not haul or take away food from the location of service.
While it is in our best interest to provide stellar service and clean vehicles thoroughly avoiding damage as best as possible, BrushHour does not guarantee 100% stain removal, 100% odor removal, 100% sand removal, or 100% pet hair removal. For the health and safety of our community, we do not clean human or animal bodily fluids.
1.4 This Agreement governs your use of the Services. By using the Services, you agree (a) that you have read and understood this Agreement, and that this Agreement creates a valid and binding agreement, enforceable against you in accordance herewith; (b) to be bound by this Agreement and any terms, conditions or other policies of BrushHour, as each may be amended or supplemented from time to time as described in Section 4 below; and (c) that your use of the Services shall comply with all applicable federal, state and local laws or regulations, and that you are solely responsible for your compliance with, familiarity with, and understanding of any such laws applicable to your use.
1.5 Additionally, and without limiting the foregoing, by using the Services, you represent and warrant that you: (a) are eighteen (18) years of age or older; (b) are not currently restricted from using the Services, or not otherwise prohibited from having an account for the Services; (c) are not a competitor of the Services or are not using the Services for reasons that compete with the Services or any other product or service offered by BrushHour; (d) have full power and authority to enter into and perform this Agreement, and doing so will not violate any other agreement to which you are a party; (e) will not violate any rights of BrushHour, including intellectual property rights such as copyright or trademark rights; and (f) agree to provide at your cost anything necessary to use the Services.
1.6 Without limiting the generality of the foregoing or any other provision hereof, you acknowledge and agree as follows:
Not to use the Services in any manner that is, or could reasonably be construed to be, unlawful, fraudulent, misleading, malicious, or discriminatory;
The Services under this Agreement are for personal use only. The Services may not be used for Commercial Use (as defined below);
The Services may not be used for Non-Compatible Vehicles (as defined below); and
Except as set forth in this Agreement or communicated to you in writing by BrushHour, no Services may be combined with any other Services, programs, or discounts.commercial fleets may be able to purchase a One-time Wash with an applicable discount provided by emailing BrushHour.
As used herein: (a) “Commercial Use” means the use of the Services for vehicles that are being used or maintained (i) for the transportation of persons or property for hire, compensation, or profit, (ii) by a business, governmental entity or other organization, or (ii) for any other commercial purpose; and (b) “Non-Compatible Vehicles” means vehicles that are not compatible with the equipment at the BrushHour Service Location for any reason, including, without limitation, vehicles that (i) are incompatible by size, design or modification, or (ii) have accessories, trailers or other items attached to the vehicle that make the vehicle incompatible.
1.7 Access Credentials. You are responsible for keeping your Access Credentials (as defined below) associated with the Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us upon learning about any unauthorized access to your Access Credentials. “Access Credentials” means any user name, email address, identification number, password, license plate or license plate number, an access key or token, PIN or another method, technology or device used, alone or in combination, to verify a customer and/or access the Services.
1.8 Compliance. You are responsible for identifying, understanding, and complying with (i) all laws (including, but not limited to, the Americans with Disabilities Act and applicable laws governing your collection, use, disclosure, security, processing, and transfer of data ), rules and regulations that apply to your provision of service(s) (including whether you are permitted to provide services at all) in the jurisdiction(s) in which you operate (your “ Region ”) and (ii) this Agreement (collectively, the “Requirements”). Notwithstanding anything to the contrary in this Agreement, for the avoidance of doubt, your ability to access and use our Platform is at all times subject to your compliance with the Requirements. You agree not to access or attempt to access our Platform if you are not in compliance with the requirements.
1.9 Vehicle Standards.
(a) During your account creation and registration, we will collect, and may verify, certain information about you and the vehicle(s) you use to schedule service(s) (“ your vehicle ”).
(b) You agree that your vehicle will be properly registered, licensed, and suitable to schedule service(s) in your Region. You represent that at all times during the provision of any service(s) your vehicle will be in your lawful possession with valid authorization to use your vehicle to complete scheduled service(s) in your Region. You agree that your vehicle will be in safe operating condition, consistent with safety and maintenance standards for a vehicle of its type in the new and fairly used carcommercial fleet industry. You agree to monitor for and repair any parts that are recalled by your vehicle’s manufacturer (as well as anything else the Requirements applicable to your particular Region may require).
1.10 Use of BrushHour Branded Materials.
(a) Except to the extent necessary to comply with applicable law, you are not required to use, wear or display BrushHour’s name or logo on your vehicle or clothing, or to use signaling lights, stickers, decals, or other such materials displaying BrushHour’s name or logo (collectively “ BrushHour Branded Materials ”).
(b) Your authorized display of BrushHour Branded Materials may signify to Crew Chief(s) and Crew Member(s)s and Merchants that your car wash and detail services are facilitated by our Platform. BrushHour grants you a limited license to use, wear or display BrushHour Branded Materials provided directly to you by BrushHour (“ Authorized BrushHour Branded Materials ”) when to schedule service(s) solely for the purpose of identifying yourself and your vehicle to Crew Chief(s) and Crew Member(s)s and Merchants as someone selling car wash and detail services facilitated by our Platform. You agree not to (i) use, wear, or display BrushHour-Branded Materials that are not Authorized BrushHour Branded Materials(ii) purchase, accept, offer to sell, sell or otherwise transfer BrushHour Branded Materials that are not Authorized BrushHour Branded Materials or (iii) offer to sell or sell, or otherwise transfer Authorized BrushHour Branded Materials, without our prior written permission.
(c) The parties expressly agree that your access to, or use of, BrushHour Branded Materials, whether or not authorized, does not indicate an employment or other similar relationship between you and us. You further agree not to represent yourself as our employee, representative, or agent for any purpose or otherwise misrepresent your relationship with us.
1.11. Crashes, Criminal Offenses, and Other Compliance Obligations.
For the purpose of assisting us with our compliance and insurance obligations, you agree to notify us within 24 hours and provide us with all reasonable information relating to any incident (including any crash involving your vehicle) that occurs during your provision of a car wash and detail service and you agree to cooperate with any investigation and attempted resolution of such incident.
If you schedule service for the vehicle(s), the obligations in this Section 1.11 shall apply.
(a) You will maintain automobile liability insurance on your vehicle(s) that provides protection against bodily injury and property damage at coverage levels that satisfy the minimum requirements to operate a vehicle on public roads. You will notify us in writing immediately if the policy you have is canceled.
(b) If you have any questions or concerns about the scope or applicability of your insurance coverage, it is your responsibility to resolve them with your insurer.
(c) We may, in our sole discretion, choose to maintain auto insurance related to your service(s), but we are not required to provide you with any specific coverage for loss to you or your vehicle unless we specifically describe it in an addendum to this MSA. We can change or alter insurance that is maintained by us, if any, at any time without notice to you or authorization from you.
3.2. Other service(s). If you would like service for a motorcycle (or similar), or vintage vehicle older in age than the year 2000, we will not provide any form of insurance and you will be responsible for reimbursing us for any amounts that we are found liable for in respect to your use of such automobile or other motorized devices outside our normal service vehicle(s).
1.12. Location-Based Technology Services; Communication Consents.
(a) Your device geo-location information is required for the proper functioning of our Platform, and you agree to not take any action to manipulate or falsify your device geo-location. You grant us the irrevocable right to obtain your geolocation information and to share your location with third parties, including your Crew Chief(s) and Crew Member(s)s and Merchants, who will see the approximate location of your vehicle in the applicable BrushHour app before and during the car wash and detail service. We may not and will not use this information to attempt to supervise, direct, or control you or your provision of service(s).
(b) You agree that we may contact you by email, telephone, or text message (including by an automatic telephone dialing system) at any of the phone numbers provided by you, or on your behalf, in connection with your account. You also understand that you may opt-out of receiving text messages from us at any time, using the mobile device that is receiving the messages, or by contacting us at BrushHour.cofleet. Notwithstanding the foregoing, we may also contact you by any of the above means, including by SMS, in case of suspected fraud or unlawful activity by you or on your account.
1.13 Submitting Merchant Receipts. As part of your provision of Combined Services,
you understand and agree that you shall timely submit a valid copy of the itemized Merchant receipt evidencing the amount spent for the items pre-authorized by the Crew Chief(s) and Crew Member(s) and confirm prices, in the Scheduler Web App / App / Website or as otherwise indicated by us. You acknowledge and agree that in the event of an invalid receipt submission, you may be required to reimburse Crew Chief(s) and Crew Member(s). We will provide you notice electronically of any material changes to this obligation.
2. VIOLATION; TERMINATION.
2.1 BrushHour reserves the right to investigate violations of any of this Agreement or any other policies of BrushHour or the Services, or any other violations of any state, federal or local law, rule or regulation, and to pursue any remedy available to BrushHour whether at law, in equity or otherwise. You hereby acknowledge and agree that BrushHour may notify, involve and cooperate with law enforcement authorities in investigating and prosecuting users who violate this Agreement or any other policies of BrushHour or the Services, and any other violations of any state, federal or local laws, rules or regulations.
2.2 You further acknowledge and agree that BrushHour may, in its sole discretion, suspend or cancel the partnership of, and terminate this Agreement with, any user that breaches this Agreement. The breach includes, without limitation, your failure to make any and all payments when due.
2.3 Notwithstanding anything to the contrary, BrushHour may refuse, in its sole discretion, to permit any use of the Services, and may refuse to permit any person to use the Services for any reason at any time.
3. PAYMENT AND REFUNDS.
3.1 In consideration of the provision of the Services and the rights granted to you under this Agreement, you shall pay the fees set out in BrushHour’s then-current fee schedule (available when you log-in on the billing section). The fees will vary depending on the Services purchased and may be updated from time to time as described in Section 4 below.
3.2 An ACH, valid credit, or valid debit card will be required for billing and invoicing purposes. You hereby allow BrushHour to store (or cause a third party to store on behalf of BrushHour) such payment information and agree to the following policies and procedures for payment of fees related to the Services:
(a) All fees charged by BrushHour in connection with the Services are exclusive of any taxes, levies, or duties imposed by any taxing authority, and you shall be, and hereby are, responsible for the payment of all such taxes, levies, or duties arising from your use of the Services.
(b) All payments made to BrushHour in connection with the Services are non-refundable, and BrushHour does not offer and is not required to provide any refunds or credits. There is no circumstance in which you will be entitled to, or BrushHour is required to provide a refund or credit. In its sole discretion, BrushHour may provide a refund in a manner BrushHour deems reasonable if (i) BrushHour terminates your agreement without cause before the end of a billing period for which you have paid in full, or (ii) you are seeking a refund otherwise specifically provided for by this Agreement or other written policies of the Services and/or BrushHour then in effect and fully applicable.
4. MODIFICATIONS.
4.1 You acknowledge and agree that we have the right, in our sole discretion, to modify the Services, fees, costs, and pricing, and this Agreement from time to time and that modified terms become effective on posting. You will be notified of modifications through posts on https://www.BrushHour.cofleets and may be notified pursuant to the means described in Section 4.3 below. You are responsible for reviewing and becoming familiar with any such modifications. BrushHour will endeavor to provide at least seven (7) days’ advance notice of changes to any service level that BrushHour reasonably anticipates may result in a material reduction in quality or Services. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms.
4.2 Notwithstanding the foregoing or anything to the contrary, (a) BrushHour reserves the right from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof); and (b) BrushHour shall not be liable to you, or any third party, for any damages, costs, expenses or other liabilities related to any modification, price change, suspension or discontinuance of the Services.
4.3 Without limiting the foregoing, BrushHour may use email to an email address associated with your account, even if we have other contact information, to alert you to any modifications. You also agree that BrushHour may communicate with you through any available means including email, mobile number, telephone, or delivery services, including the postal service, about your account or the Services. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive information about the Services or pricing.
5. UPGRADING, DOWNGRADING, OR CANCELLING PARTNERSHIP
5.1 Your Services may be upgraded, downgraded or canceled, subject to the terms hereof. When you upgrade, you will be charged the difference between your upgraded Services and your prior Services. When you downgrade Services, you will be charged the applicable fee for the downgraded Services at the beginning of the next billing period after you downgrade.
6. DISCLAIMER OF WARRANTIES.
6.1 THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH NO WARRANTIES WHATSOEVER. BrushHour AND EACH USER OF THE SERVICES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. Without limiting the generality of the foregoing or any other provision hereof, BrushHour does not warrant that the Services will be available or that any particular BrushHour Service Location will be operational at all times.
6.2 YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LIABILITY, CLAIM, DAMAGES, LOSS, COST OR EXPENSE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, THAT RESULTS FROM OR ARISES FROM YOUR USE OF THE SERVICES.
7. LIMITATIONS OF LIABILITY.
WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, BrushHour, ITS AFFILIATES, AND ITS SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, AND AGENTS, SHALL NOT BE LIABLE TO YOU, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR (A) ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, REVENUES OR BUSINESS, ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT, OR (B) ANY DAMAGES OF ANY KIND ARISING OUT OF, UNDER OR RELATING TO THE SERVICES IN EXCESS OF THREE TIMES THE MOST RECENT PAYMENT IN CONNECTION WITH THE SERVICES, IF ANY, OR $100, WHICHEVER AMOUNT IS GREATER. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL THEIR ESSENTIAL PURPOSE.
8. INDEMNIFICATION.
You agree to indemnify and hold harmless BrushHour, its affiliates, and its subsidiaries, and their respective officers, directors, managers, shareholders, members, employees, and agents, from any and all claims, losses, damages, liabilities, and any other costs and expenses (including attorneys’ fees), arising from or related to a claim (i) due to your failure to comply with this Agreement, or (ii) due to your negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement.
9. MISCELLANEOUS.
9.1 Privacy Policy. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy (available at: https://www.BrushHour.co/privacy), and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.
9.2 Governing Law. Any claim under this Agreement or otherwise related to the Services or BrushHour shall be governed by the laws of the State of Wyoming without regard to its conflict of law provisions.
9.3 Arbitration. IN THE EVENT OF ANY DISPUTE (OTHER THAN ONE FILED IN A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS, OR AS SET FORTH IN SECTION 9.6) BETWEEN YOU AND BrushHour (“BrushHour” AS USED IN THIS PROVISION MEANS BrushHour, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS), YOU AND BrushHour CONSENT TO ARBITRATE THAT DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN-CURRENT RULES OF THE DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN-CURRENT RULES OF THE AMERICAN ARBITRATION ASSOCIATION RATHER THAN LITIGATE THE DISPUTE IN COURT. YOU AND BrushHour ALSO AGREE THAT THE FEDERAL ARBITRATION ACT GOVERNS THE ARBITRABILITY OF ALL DISPUTES BETWEEN YOU AND BrushHour. IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY BrushHour IN WRITING, BY MAIL TO BrushHour AT PO BOX #1665 Chicago, IL 60604, WITHIN 30 DAYS OF THE EFFECTIVE DATE, STATING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH BrushHour BY ARBITRATION. IN ADDITION, YOU AGREE NOT TO PARTICIPATE IN A CLASS ACTION, A CLASS-WIDE ARBITRATION, CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT IF BrushHour IS A PARTY TO THE PROCEEDING. THE ARBITRATOR SHALL INTERPRET AND DETERMINE THE VALIDITY OF THE ARBITRATION PROVISION, INCLUDING ANY ALLEGED UNCONSCIONABILITY.
9.4 Severability. If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified to render it enforceable and effective to the maximum extent possible to effect the intent of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement will not be affected in any way.
9.5 Entire Agreement (The Service Terms). You agree that this Agreement and any terms, conditions, or other policies of BrushHour constitute the entire, complete, and exclusive agreement between you and us regarding the Services, and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement.
9.6 Equitable Remedies. You agree that BrushHour would be irreparably damaged if this Agreement were not specifically followed and enforced. In such an event, you agree that BrushHour shall be entitled, without bond or other security, or proof of damages, to appropriate equitable relief in the event you breach this Agreement, and that the awarding of equitable relief to BrushHour will not limit its ability to receive remedies that are otherwise available to BrushHour under applicable laws. Notwithstanding Section 9.3, you agree that BrushHour shall still be allowed to apply for equitable relief in any jurisdiction.
9.7 Assignment. BrushHour may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign this Agreement without BrushHour’s prior written consent. Your assignment of this Agreement without BrushHour’s prior written consent shall be void.
9.8 Waivers. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches.
9.9 Headings. The division of this Agreement into sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement.
9.10 Questions. Questions about The Service Terms clause and agreement should be addressed via email.
4. Access and Use of the Services
User Accounts.
To use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. Account registration requires you to submit to BrushHour certain personal information, such as your name, address, mobile phone number, and age, as well as at least one valid payment method supported by BrushHour. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by BrushHour in writing, you may only possess one Account.
User Requirements and Conduct.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive service or logistics services from Third Party Providers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances, you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
Referrals and Promotional Codes.
BrushHour may, in its sole discretion, create referral and/or promotional codes ("Promo Codes") that may be redeemed for discounts on future Services and/or a Third Party Provider's services, or other features or benefits related to the Services and/or a Third Party Provider's services, subject to any additional terms that BrushHour establishes. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by BrushHour; (iii) may be disabled by BrushHour at any time for any reason without liability to BrushHour; (iv) may only be used pursuant to the specific terms that BrushHour establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. BrushHour reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that BrushHour determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of BrushHour's Terms.
User-Provided Content.
BrushHour may, in BrushHour's sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to BrushHour through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to BrushHour, you grant BrushHour a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and BrushHour's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents, and releases necessary to grant BrushHour the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor BrushHour's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by BrushHour in its sole discretion, whether or not such material may be protected by law. BrushHour may, but shall not be obligated to, review, monitor, or remove User Content, at BrushHour's sole discretion and at any time and for any reason, without notice to you.
Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. BrushHour does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
5. Payment
You understand that use of the Services may result in charges to you for the services or goods you receive ("Charges"). BrushHour will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, municipal tolls, airport surcharges, or processing fees for split payments. Please visit www.BrushHour.com for further information on your particular location.
As between you and BrushHour, BrushHour reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time at BrushHour's sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. BrushHour will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. BrushHour may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel up to 48 hours prior to Services to the commencement of such Services, in which case you may be charged a cancellation fee on a Third Party Provider’s behalf. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback. BrushHour may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Third Party Providers or other third parties.
In certain cases, with respect to Third-Party Providers, Charges you incur will be owed directly to Third Party Providers, and BrushHour will collect payment of those charges from you, on the Third Party Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as a payment made directly by you to the Third Party Provider. In such cases, you retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods, and Charges you incur will be owed to the Third Party Provider. BrushHour will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good. This payment structure is intended to fully compensate a Third Party Provider, if applicable, for the services or goods obtained in connection with your use of the Services. In all other cases, Charges you incur will be owed and paid directly to BrushHour or its affiliates, where BrushHour is solely liable for any obligations to Third Party Providers. In such cases, you retain the right to request lower Charges from BrushHour for services or goods received by you from a Third Party Provider at the time you receive such services or goods, and BrushHour will respond accordingly to any request from you to modify the Charges for a particular service or good. Except with respect to taxicab service services requested through the Application, BrushHour does not designate any portion of your payment as a tip or gratuity to a Third Party Provider. Any representation by BrushHour (on BrushHour's website, in the Application, or BrushHour's marketing materials) to the effect that tipping is "voluntary," "not required," and/or "included" in the payments you make for services or goods provided is not intended to suggest that BrushHour provides any additional amounts, beyond those described above, to a Third Party Provider you may use. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary.
Repair or Replacement Fees.
You shall be responsible for the cost of repair for damage to, or necessary replacement of, Provider tools and property resulting from use of the Services under your Account in excess of normal "wear and tear" damages and necessary replacement ("Repair or Replacement"). In the event that a Repair or Replacement request is verified by BrushHour in BrushHour's reasonable discretion, BrushHour reserves the right to facilitate payment for the reasonable cost of such Repair or Replacement using your payment method designated in your Account. Such amounts will be transferred by BrushHour to a Third Party Provider, if applicable, and are non-refundable.
6. Electronic Communications
When you visit BrushHour.co or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Website. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Terms and Conditions for BrushHour's Text Message Program
IMPORTANT! PLEASE READ THESE BrushHour's TEXT MESSAGE PROGRAM TERMS AND CONDITIONS CAREFULLY BEFORE SIGNING UP FOR ANY BrushHour'sTEXT MESSAGE PROGRAM. BY SIGNING UP FOR ONE OR MORE OF BrushHour'sTEXT MESSAGE PROGRAMS, YOU AGREE TO ABIDE BY AND BE BOUND TO THESE BrushHour TEXT MESSAGE TERMS AND CONDITIONS.
BrushHour operates marketing and transactional text message programs, which are further described below in detail. The following terms apply to all of the Text Programs: All of the BrushHour'stext message programs and participation in any text message program is also governed by other provisions of these BrushHour Terms & Conditions and Privacy Policy.
By opting into any text message program, you consent to the use of an electronic record to document your Opt-In. To withdraw that consent, request documentation of the Opt-In, or update our records with your contact information, please call (224) 707-0527. These Terms & Conditions still will apply if you withdraw the consent mentioned above or opt-out of each of the text message programs. If you feel comfortable, provide your name or at least the phone number on the voice message system explicitly stating that you would like to opt-out of the BrushHour'sText Message Program.
By signing up for one or more text messaging programs or scheduling on this website, you expressly consent to receive marketing or non-marketing text messages, as applicable, from or on behalf of BrushHour, including but not limited to, text messages made with an automatic telephone dialing system (“autodialer”), at the telephone number(s) that you provide. You may opt-out of these communications at any time. Consent to receive text messages is not a condition of purchasing any property, goods, or services.
Program Description - BrushHour and its service providers may use an autodialer to deliver text messages to you. BrushHour text messages are intended to provide you with marketing and promotional information regarding BrushHour products and services (e.g., appointments and promotions offered by BrushHour or any of its authorized dealers). We may also provide you with transaction-related information.
After joining any of BrushHour's marketing text programs, you may receive text messages regarding special offers, new products, in-store events, shopping cart reminders and other marketing communications related to the applicable program that you joined.
Message Frequency - The number of BrushHour text messages that you receive will vary depending on which BrushHour text messaging programs for which you sign up to receive messages and the frequency of the messages sent by those programs. You will receive a maximum of approximately seven (7) marketing or promotional text messages per week.
Cost - Message and data rates may apply to each text message sent or received in connection with BrushHour text messages, as provided in your mobile telephone service rate plan (please contact your mobile telephone carrier for pricing plans), in addition to any applicable roaming charges. BrushHour does not impose a separate fee for sending BrushHour text messages; however, you are responsible for any fees imposed by your mobile carrier of any kind whatsoever.
How to Opt-In - To opt-in to receive text messages from a BrushHour text messaging program(s), please follow the instructions provided by the specific program from which you wish to receive messages. For example: (i) you may be asked to check an opt-in check box on the collection page where you entered your phone number; (ii) by responding to a prompt to text a keyword as directed to a number; (iii) or by replying in the affirmative in the manner indicated in an initial text message (e.g., Y or Yes).
How to Opt-Out - To stop receiving text messages from a specific BrushHour text messaging program, text STOP to the five-digit short code or phone number for the text messaging program from which you no longer wish to receive messages. You acknowledge that you may then receive one (1) final message from BrushHour confirming your opt-out of that text messaging program. Following such a confirmation message, no additional text messages associated with that program will be sent to you unless you re-activate your subscription. You will remain opted into other BrushHour text messaging programs. You may also indicate your choice to stop receiving promotional text messages from BrushHour by calling (224) 707-0527.
Your Mobile Telephone Number - By completing the opt-in process for any text program, you represent and confirm that you are the account holder for the mobile telephone number(s) that you enroll and that you are authorized to grant BrushHour the right to send text messages to that number. You are responsible for notifying BrushHour immediately if you change your mobile telephone number. You may notify BrushHour of a number change by contacting BrushHour at (224) 707-0527. If you feel comfortable, provide your name or at least the phone number on the voice message system explicitly stating that you would like to change your number in the BrushHour'sText Message Program. If you change your mobile phone number, you agree to opt out of the program prior to changing your mobile number.
You agree to indemnify, defend and hold us harmless from any third-party claims, liability, damages, expenses, and/or costs arising from your use of the program, from you providing us with a phone number that is not your own, or by your failure to notify BrushHour if you change your telephone number or if you do not opt-out your prior telephone number, including but not limited to those arising under the Telephone Consumer Protection Act (“TCPA”).
Access or Delivery to Mobile Network is Not Guaranteed - It is your responsibility to determine if your mobile carrier supports text messaging and if your mobile device is capable of receiving text messages. Your receipt of our text messages is subject to the terms and conditions of your agreement(s) with your mobile carrier.
Delivery of information and content to a mobile device may fail due to a variety of circumstances or conditions. You understand and acknowledge that network services, including but not limited to mobile network services, are outside of BrushHour’s control, and BrushHour is not responsible or liable for issues arising from such network services (e.g., delayed or undelivered messages or the security of any messages).
Carriers are not liable for delayed or undelivered messages.
Support/Help - To request more information, you may contact BrushHour at [email protected].
Eligibility - To receive BrushHour text messages, you must be a resident of the United States and 18 years of age or older.
Changes to Terms and Conditions - BrushHour may revise, modify, or amend these BrushHour'sText Message Program at any time. Any such revision, modification, or amendment shall take effect when it is posted to BrushHour's website at https://BrushHour.co/terms. You agree to review these BrushHour'sText Message Program periodically to ensure that you are aware of any changes. Your continued consent to receive BrushHour text messages will indicate your acceptance of those changes.
Termination of Text Messaging - We may suspend or terminate your receipt of BrushHour text messages if we believe you are in breach of these BrushHour'sText Message Program Terms and Conditions. Your receipt of BrushHour text messages is also subject to termination in the event that your mobile telephone service terminates or lapses. BrushHour reserves the right to modify or discontinue, temporarily or permanently, all or any part of any BrushHour'sText Message Program, with or without notice.
7. Disclaimers; Limitation of Liability; Indemnity.
DISCLAIMER.
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." BrushHour DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, BrushHour MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. BrushHour DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY, OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY.
BrushHour SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF BrushHour, EVEN IF BrushHour HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BrushHour SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY, OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF BrushHour HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BrushHour SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND BrushHour'S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS PROVIDING SERVICE SERVICES REQUESTED THROUGH SOME REQUEST PRODUCTS MAY OFFER PEER-TO-PEER SERVICE SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED, CERTIFIED, OR PERMITTED BY OR THROUGH THE BrushHour PLATFORM.
THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE SERVICE, GOODS, OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT BrushHour HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICE, GOODS, OR LOGISTICS SERVICES PROVIDED TO YOU BY THIRD-PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, BrushHour'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON BrushHour'S CHOICE OF LAW PROVISION SET FORTH BELOW.
Indemnity.
You agree to indemnify and hold BrushHour and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) BrushHour's use of your User Content; or (iv) your violation of the rights of any third party, including Third-Party Providers.
8. Other Provisions
Choice of Law.
These Terms are governed by and construed in accordance with the laws of the State of Wyoming, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Wyoming to assert claims under Wyoming law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of Wyoming law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Wyoming law to you if you do not otherwise reside in Wyoming. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or any arbitrable disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.
Claims of Copyright Infringement.
Claims of copyright infringement should be sent to BrushHour's designated agent. Please contact us at [email protected] for the designated address and additional information.
Notice.
BrushHour may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first-class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to BrushHour, with such notice deemed given when received by BrushHour, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o BrushHour Systems, LLC. The name and current contact information for the registered agent in each state are available online.
General.
You may not assign these Terms without BrushHour's prior written approval. BrushHour may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of BrushHour's equity, business, or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, BrushHour, or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. BrushHour's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BrushHour in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.
Deactivation. You consent to and we may temporarily deactivate your account without notice to investigate whether you have engaged in, or your account has been used in, an activity that is deceptive, fraudulent, unsafe, illegal, harmful to our brand, business or reputation, or that violates this Agreement (including the policies incorporated herein by reference)(any of the foregoing, a “ Material Breach or Violation ”). You also consent to and we may terminate this Agreement or permanently deactivate your account without notice if we determine in our discretion that a Material Breach or Violation has occurred.
Effect of Termination and Survival. Upon termination, each party will remain responsible for its respective liabilities or obligations that accrued before or as a result of such termination. Once the Agreement is terminated you will no longer access our Platform to schedule service(s). Sections 1, 2, 4, 5, 6-9, 12, and 13 shall survive any termination or expiration of this Agreement.
8.1. Information
We may collect and disclose information from or about you when you create an account, interact with our Platform, or schedule service(s) and as otherwise described in our Privacy Policy. Notwithstanding anything herein to the contrary (a) the collection, use, and disclosure of such information will be made in accordance with our Privacy Policy and (b) if you elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with, or related to, us or our Platform, we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner.
8.2. Confidentiality
8.2.1. Confidential Information. Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party or third parties (“ Confidential Information ”). Confidential Information includes User Information and the volume of car wash and detail services, marketing, and business plans, business, financial, technical, operational, and such other, non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential. Confidential Information does not include any information that: (a) was in the receiving party’s lawful possession prior to the disclosure, as clearly and convincingly
corroborated by written records, and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (b) is lawfully disclosed to the receiving party by a third party without actual, implied or intended restriction on disclosure through the chain of possession, or (c) is independently developed by the receiving party without the use of or access to the Confidential Information, as clearly and convincingly corroborated by written records.
8.3. Obligations.
Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third-party, except to its employees, officers, contractors, agents and service providers (" Permitted Persons ") as necessary to perform their obligations under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party; subject to applicable law and our internal record-keeping requirements.
8.4. Remedies.
The unauthorized use or disclosure of any Confidential Information would cause irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, the parties have the right to obtain immediate equitable relief to enjoin any unauthorized use or disclosure of Confidential Information disclosed by the other party, in addition to any other rights or remedies described in Section 13, applicable law or otherwise.
8.5. Intellectual Property
We reserve all rights not expressly granted in this Agreement. The Scheduler Web App / App / Website, our Platform, and all data gathered through our Platform, including all intellectual property rights therein (the “ Platform IP ”), are and remain our property and/or that of our licensors, as applicable. Neither this Agreement nor your use of BrushHour’s or our licensors’ company names, logos, products or service names, trademarks, service marks, trade dress, other indicia of ownership, or copyrights ('' BrushHour Names, Marks, or Works ”) or the Platform IP conveys or grants to you any rights in or related to the Platform IP, or related intellectual property rights, including
BrushHour’s Names, Marks, or Works, except for the limited license granted above. You shall not, and shall not allow any other party to: (a) license, sublicense, copy, modify, distribute, create, sell, resell, transfer, or lease any part of the Platform IP or Authorized BrushHour-Branded Materials; (b) reverse engineer or attempt to extract the source code of our software, except as allowed under law; (c) use, display, or manipulate any of BrushHour Names, Marks, or Works for any purpose other than to to schedule service(s); (d) create or register any (i) businesses, (ii) URLs, (iii) domain names, (iv) software application names or titles, or (v) social media handles or profiles that include BrushHour Names, Marks, or Works or any confusingly or substantially similar mark, name, title, or work; (e) use BrushHour Names, Marks, or Works as your social media profile picture or wallpaper; (f) purchase keywords (including, but not limited to Google AdWords) that contain any BrushHour Names, Marks, or Works; (g) apply to register, reference, use, copy, and/or claim ownership in BrushHour’s Names, Marks, or Works, or in any confusingly or substantially similar name, mark, title, or work, in any manner for any purposes, alone or in combination with other letters, punctuation, words, symbols, designs, and/or any creative works, except as may be permitted in the limited license granted above; (h) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any part of our Platform or data; or (i) aggregate our data with competitors’.
8.6. Third-Party Services
From time to time we may permit third parties to offer their services to users of our Platform. Third-party services may be subject to additional terms (including pricing) that apply between you and the party(ies) providing such services. If you choose to access the third-party services you understand that the providers of the third-party services are solely responsible for liabilities arising in connection with the access and use of such third party services. While we may allow users to access such services through our Platform and we may collect information about our users’ use of such services, we may not investigate, monitor, or check such third-party services for accuracy or completeness.
8.7. Miscellaneous
8.7(a) Modification. You will only be bound by modifications or supplements to this MSA on your acceptance, but if you do not agree to them, you may not be allowed to access our Platform. Such modifications or supplements may be provided to you only via electronic means.
From time to time we may modify information hyperlinked in this MSA (or the addresses where such information may be found) and such modifications shall be effective when posted.
8.7(b) Severability.
The invalidity of any provision of this Agreement does not affect the rest of this Agreement. The parties shall replace the invalid or non-binding provision with provision(s) that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
8.7(c). Assignment.
We may freely assign or transfer this Agreement or any of our rights or obligations in them, in whole or in part, without your prior consent. You agree not to assign this Agreement, in whole or in part, without our prior written consent, and any attempted assignment without such consent is void.
8.7(d) Conflicts.
Except with respect to the Arbitration Provision, if there is a conflict between this MSA and any supplemental terms between you and us, those supplemental terms will prevail with respect to the specific conflict if explicitly provided therein, and is in addition to, and a part of, this Agreement.
8.8. Interpretation.
In this Agreement, “ including ” and “ include ” mean “ including, but not limited to .”
8.9. Notice.
Except as explicitly stated otherwise, any notices to us shall be given by certified mail, postage prepaid, and return receipt requested to BrushHour, PO Box #1665 Chicago, IL 60690 , Attn: Legal (P&C). All notices to you may be provided electronically including through our Platform or by other means.
8.10. Governing Law.
Except as specifically provided in this MSA, this MSA is governed by the State of Wyoming. The Governing Law shall apply without reference to the choice-of-law principles that would result in the application of the laws of a different jurisdiction.
8.11. Entire Agreement.
Except as specifically set forth in Section 12.4 or the Arbitration Provision, this Agreement constitutes the entire agreement and understanding with respect to the subject matter expressly contemplated herein and therein, and supersedes all prior or contemporaneous agreements or undertakings on this subject matter.
7.12. No Incorporation.
Notwithstanding anything herein to the contrary, no agreement, term, or other provision relating to your indemnification obligations to us will be considered incorporated by reference, or otherwise a part of, this Agreement.
8.13. Existing Documents.
Defined terms in documents accepted in connection with your acceptance of this Agreement that reference a Technology Services Agreement shall be deemed amended to reference analogous terms defined in this Agreement, including by replacing the term “Technology Services Agreement” with “Platform Access Agreement”.
8.14. Arbitration Provision
IN THE EVENT OF ANY DISPUTE (OTHER THAN ONE FILED IN A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS, OR AS SET FORTH IN SECTION 9.6) BETWEEN YOU AND BrushHour (“BrushHour” AS USED IN THIS PROVISION MEANS BrushHour, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS), YOU AND BrushHour CONSENT TO ARBITRATE THAT DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN-CURRENT RULES OF THE AMERICAN ARBITRATION ASSOCIATION RATHER THAN LITIGATE THE DISPUTE IN COURT. YOU AND BrushHour ALSO AGREE THAT THE FEDERAL ARBITRATION ACT GOVERNS THE ARBITRABILITY OF ALL DISPUTES BETWEEN YOU AND BrushHour. IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY BrushHour IN WRITING, BY MAIL TO BrushHour AT PO BOX #1665 Chicago, IL 60604, WITHIN 30 DAYS OF THE EFFECTIVE DATE, STATING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH BrushHour BY ARBITRATION. IN ADDITION, YOU AGREE NOT TO PARTICIPATE IN A CLASS ACTION, A CLASS-WIDE ARBITRATION, CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT IF BrushHour IS A PARTY TO THE PROCEEDING. THE ARBITRATOR SHALL INTERPRET AND DETERMINE THE VALIDITY OF THE ARBITRATION PROVISION, INCLUDING ANY ALLEGED UNCONSCIONABILITY.
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Commercial Fleet Plans
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Terms of Service
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$39/vehicle
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Most Popular
$85/vehicle
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$159/vehicle
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$219/vehicle
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Handwash Duration: About 25 Minutes |
Handwash Duration: About 55 Minutes |
Handwash Duration: About 1.75 hours |
Handwash Duration: About 2.5 Hours |
Most Popular |
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Features |
Features |
Features |
Features |
Protect Your Paint | Foam Wash |
Protect Your Paint | Hand Wash |
Protect Your Paint | Hand Wash |
Protect Your Paint | Hand Wash |
Richly Shined Wheels | Tire Dressing |
Richly Shined Wheels | Tire Dressing |
Richly Shined Wheels | Tire Dressing |
Richly Shined Wheels | Tire Dressing |
Streak Free | Window Cleaning |
Streak Free | Window Cleaning |
Streak Free | Window Cleaning |
Streak Free | Window Cleaning |
Remove Debris | Vacuum (excl. trunk) |
Remove Debris | Vacuum |
Remove Debris | Vacuum |
Remove Debris | Vacuum |
Aromatherapy | Air Freshener |
Aromatherapy | Air Freshener |
Deodorize | Carpet Freshener |
Deodorize | Carpet Freshener |
✘ |
High Shine | Exterior Wax |
High Shine | Exterior Wax |
High Shine | Exterior Wax |
✘ |
Remove Bacteria | Steam Clean |
Remove Bacteria | Steam Clean |
Remove Bacteria | Steam Clean |
✘ |
Remove Allergens | Vinyl Dusting |
Panel Scrub | Full Vinyl Cleaning |
Full Vinyl Cleaning + Conditioner |
✘ |
Prevent Rust | Door Jamb Clean |
Prevent Rust | Door Jamb Clean |
Prevent Rust | Door Jamb Clean |
✘ |
✘ |
Remove Blemishes | Seat Cleaning |
Remove Blemishes | Seat Cleaning |
✘ |
✘ |
✘ |
Remove Stains | Carpet Shampoo |
Add-on Optional Odor Free | Scent Eliminator* |
Add-on Optional Odor Free | Scent Eliminator* |
Add-on Optional Odor Free | Scent Eliminator* |
Add-on Optional Odor Free | Scent Eliminator* |
BrushHour
COMMERCIAL TERMS & CONDITIONS NOTICE
December 13, 2023
These terms of service constitute a legally binding agreement (the “Agreement”) between you and BrushHour Systems, LLC. (“BrushHour,” "BrushHour Systems, LLC.”, “we,” “us,” or “our”) governing your use of the BrushHour web app, website, and technology platform (collectively, the “BrushHour Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND BrushHour HAVE AGAINST EACH OTHER CAN BE BROUGHT. THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST BrushHour TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS AN Provider, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED BELOW.
By entering into this Agreement, you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provision) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE BrushHour PLATFORM.
1. Contractual Relationship
These Terms of Use ("Terms") govern your access or use, from within the United States and its territories and possessions, of the applications, websites, content, products, and services (the "Services," as more fully defined below in Section 3) made available in the United States and its territories and possessions by BrushHour Systems, LLC and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "BrushHour"). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BrushHour. In these Terms, the words "including" and "include" mean "including, but not limited to."
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. BrushHour may immediately terminate these Terms or any Services with respect to you, or generally, cease offering or deny access to the Services or any portion thereof, at any time for any reason.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH BrushHour ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate region-specific disclosures (e.g., a particular city webpage on BrushHour.com) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
BrushHour may amend the Terms from time to time. Amendments will be effective upon BrushHour's posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If BrushHour changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing BrushHour written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o BrushHour Systems, LLC (the name and current contact information for the registered agent in each state are available online), or (b) by email from the email address associated with your Account to: [email protected]. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).
BrushHour's collection and use of personal information in connection with the Services is described in BrushHour's Privacy Statements located at www.BrushHour.com/privacy.
2. Arbitration Agreement
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against BrushHour on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against BrushHour, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against BrushHour by someone else.
You and BrushHour agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and BrushHour, and not in a court of law.
You acknowledge and agree that you and BrushHour are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and BrushHour otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and BrushHour each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Rules and Governing Law.
The arbitration will be administered by National Arbitration and Mediation (“NAM”) in accordance with NAM’s Comprehensive Dispute Resolution Rules and Procedures and/or NAM’s Supplemental Rules for Mass Arbitration Filings (“NAM’s Rules”) then in effect, except as modified by this Arbitration Agreement. NAM’s Rules are available at www.namadr.com or by calling 1-800-358-2550.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. The parties intend that the FAA will apply even if the application of the FAA would result in the invalidation of this Arbitration Agreement. If the FAA is found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Wyoming.
Process.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in NAM’s Rules. The Arbitrator will be either (1) a retired judge or (2) an attorney licensed to practice law in the state of Wyoming and will be selected by the parties from NAM’s roster of arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then NAM will appoint the Arbitrator in accordance with NAM’s Rules.
Location and Procedure.
Unless you and BrushHour otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely based on documents you and BrushHour submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by NAM’s Rules. Subject to NAM’s Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision.
The Arbitrator will render an award within the time frame specified in NAM’s Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. BrushHour will not seek, and hereby waives all rights BrushHour may have under applicable law to recover, attorneys’ fees and expenses if BrushHour prevails in arbitration.
Fees.
Your responsibility to pay any NAM filing, administrative and arbitrator fees will be solely as set forth in NAM’s Rules.
Changes.
Notwithstanding the provisions above, regarding consent to be bound by amendments to these Terms, if BrushHour changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing BrushHour written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o BrushHour Systems, LLC (the name and current contact information are available online here), or (b) by email to the [email protected]. To be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and BrushHour in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall stay pending the outcome of any individual claims in arbitration.
3.1 The Online Experience & Online Service
The Services comprise mobile applications and related services (each, an "Application"), which enable users to arrange and schedule service, logistics, and/or delivery services and/or to purchase certain goods, including with third-party providers of such services and goods under agreement with BrushHour or certain of BrushHour's affiliates ("Third Party Providers"). In certain instances, the Services may also include an option to receive service, logistics, and/or delivery services for an upfront price, subject to acceptance by the respective Third-Party Providers. Unless otherwise agreed by BrushHour in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN SERVICE, LOGISTICS, AND/OR DELIVERY SERVICES THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH BrushHour AS A PROVIDER OF SERVICE, LOGISTICS, OR DELIVERY SERVICES OR AS A SERVICE CARRIER.
License.
Subject to your compliance with these Terms, BrushHour grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by BrushHour and BrushHour's licensors.
Restrictions.
You may not: (i) remove any copyright, trademark, or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by BrushHour; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Provision of the Services.
You acknowledge that portions of the Services may be made available under BrushHour's various brands or request options associated with service or logistics, including the service request brands currently referred to as "BrushHour''. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of BrushHour's subsidiaries and affiliates; or (ii) independent Third-Party Providers.
Third-Party Services and Content.
The Services may be made available or accessed in connection with third-party services and content (including advertising) that BrushHour does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content. BrushHour does not endorse such third-party services and content and in no event shall BrushHour be responsible or liable for any products or services of such third-party providers. Additionally, Apple Inc., Google, Inc., Microsoft Corporation, or BlackBerry Limited will be a third-party beneficiary to this contract if you access the Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third-party beneficiary's terms of service.
Ownership.
The Services and all rights therein are and shall remain BrushHour's property or the property of BrushHour's licensors. Neither these Terms nor your use of the Services conveys or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner BrushHour's company names, logos, product and service names, trademarks or services marks or those of BrushHour's licensors.
3.2 The Service Terms
This Terms of Service Agreement (this “Agreement”) is a binding contract between you (“Customer,” “you” or “your”) and BrushHour Systems, LLC, an Wyoming limited liability company, and its subsidiaries and affiliates (collectively, “BrushHour,” “we,” or “us”). This Agreement governs your access to and use of the Services (as defined below).
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE ACCEPT BUTTON OR BY ACCESSING OR USING THE SERVICES (the “Effective Date”). BY CLICKING ON THE ACCEPT BUTTON OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
YOU SHOULD CAREFULLY READ THIS AGREEMENT BEFORE PURCHASING ANY SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK ON THE ACCEPT BUTTON OR USE THE SERVICES. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION 9.3 TO RESOLVE ANY DISPUTES WITH BrushHour (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT).
1. GENERAL TERMS.
1.1 BrushHour provides car washes to its customers (collectively, “Services”), which may include a partnership or agreement granting access to the Services (each a “partnership”). BrushHour also provides BrushHour accounts to its customers to allow them to manage Services that they receive (each an “account”), which can be accessed as available through online services that BrushHour may make available from time to time.
1.2 The types of car wash Services may vary at each BrushHour Service Location. In addition to the car wash Services, BrushHour may provide certain additional products and services (“additional Services”), such as vacuums, hand towel drying services, towels, dashboard wipes, or other products and services BrushHour makes available at a BrushHour Service Location from time to time; provided, however, BrushHour does not guarantee that (a) any additional Services will be available or continue to be available, as part of the car wash Services, (b) that the same additional Services will be available at each BrushHour Service Location, or (c) that any additional Services will be provided without additional charge.
1.3 We may offer a number of different plans, including the following:
Our employees, independent contractors, and partners hold the right to not perform services in the following areas at BrushHour’s Discretion:
Areas that are said to be against government laws and regulations.
Areas that are unfit or unsafe for the safety of our employees and partners.
Areas with high traffic streets.
unless there is a bike lane, high traffic streets may vary.
Areas with parking garages or parking lots that require payment with pay gates/attendants.
Areas at, on, or near Airport property.
Areas that look to be or are considered government property without written consent emailed from an official or holding power of the city, state, or government.
Service areas and vehicles that are surrounded or covered with heavy snow, ice, frost, or black ice.
During extreme weather (below 27° F (“feels like” temperatures) or above 89° F (feels like temperatures), our Crews may temporarily request a small indoor space (or a bay) upon our arrival to avoid frozen door jambs and/or to provide a quality service. This ensures vehicles are readily available for immediate display upon the completion of service. In the event, that a two-car accessible space cannot be provided, and if below 27° F (“feels like” temperatures) or above 89° F (feels like temperatures, crews may reschedule due to extreme weather conditions.
While our team implements many internal policies to ensure vehicles are safely
maintained, some solvents may affect some plastic under the hood over extended
periods of time, especially when engine bay service is repeated.
Our employees, independent contractors, and partners are not responsible for any misplaced or lost items in the vehicle. BrushHour suggests that customers and members remove any valuable items and belongings from your vehicle before service begins. BrushHour asks that all medium and large trash (larger than 5 inches) be removed from the vehicle before service begins. BrushHour does not haul or take away food from the location of service.
While it is in our best interest to provide stellar service and clean vehicles thoroughly avoiding damage as best as possible, BrushHour does not guarantee 100% stain removal, 100% odor removal, 100% sand removal, or 100% pet hair removal. For the health and safety of our community, we do not clean human or animal bodily fluids.
1.4 This Agreement governs your use of the Services. By using the Services, you agree (a) that you have read and understood this Agreement, and that this Agreement creates a valid and binding agreement, enforceable against you in accordance herewith; (b) to be bound by this Agreement and any terms, conditions or other policies of BrushHour, as each may be amended or supplemented from time to time as described in Section 4 below; and (c) that your use of the Services shall comply with all applicable federal, state and local laws or regulations, and that you are solely responsible for your compliance with, familiarity with, and understanding of any such laws applicable to your use.
1.5 Additionally, and without limiting the foregoing, by using the Services, you represent and warrant that you: (a) are eighteen (18) years of age or older; (b) are not currently restricted from using the Services, or not otherwise prohibited from having an account for the Services; (c) are not a competitor of the Services or are not using the Services for reasons that compete with the Services or any other product or service offered by BrushHour; (d) have full power and authority to enter into and perform this Agreement, and doing so will not violate any other agreement to which you are a party; (e) will not violate any rights of BrushHour, including intellectual property rights such as copyright or trademark rights; and (f) agree to provide at your cost anything necessary to use the Services.
1.6 Without limiting the generality of the foregoing or any other provision hereof, you acknowledge and agree as follows:
Not to use the Services in any manner that is, or could reasonably be construed to be, unlawful, fraudulent, misleading, malicious, or discriminatory;
The Services under this Agreement are for personal use only. The Services may not be used for Commercial Use (as defined below);
The Services may not be used for Non-Compatible Vehicles (as defined below); and
Except as set forth in this Agreement or communicated to you in writing by BrushHour, no Services may be combined with any other Services, programs, or discounts.commercial fleets may be able to purchase a One-time Wash with an applicable discount provided by emailing BrushHour.
As used herein: (a) “Commercial Use” means the use of the Services for vehicles that are being used or maintained (i) for the transportation of persons or property for hire, compensation, or profit, (ii) by a business, governmental entity or other organization, or (ii) for any other commercial purpose; and (b) “Non-Compatible Vehicles” means vehicles that are not compatible with the equipment at the BrushHour Service Location for any reason, including, without limitation, vehicles that (i) are incompatible by size, design or modification, or (ii) have accessories, trailers or other items attached to the vehicle that make the vehicle incompatible.
1.7 Access Credentials. You are responsible for keeping your Access Credentials (as defined below) associated with the Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us upon learning about any unauthorized access to your Access Credentials. “Access Credentials” means any user name, email address, identification number, password, license plate or license plate number, an access key or token, PIN or another method, technology or device used, alone or in combination, to verify a customer and/or access the Services.
1.8 Compliance. You are responsible for identifying, understanding, and complying with (i) all laws (including, but not limited to, the Americans with Disabilities Act and applicable laws governing your collection, use, disclosure, security, processing, and transfer of data ), rules and regulations that apply to your provision of service(s) (including whether you are permitted to provide services at all) in the jurisdiction(s) in which you operate (your “ Region ”) and (ii) this Agreement (collectively, the “Requirements”). Notwithstanding anything to the contrary in this Agreement, for the avoidance of doubt, your ability to access and use our Platform is at all times subject to your compliance with the Requirements. You agree not to access or attempt to access our Platform if you are not in compliance with the requirements.
1.9 Vehicle Standards.
(a) During your account creation and registration, we will collect, and may verify, certain information about you and the vehicle(s) you use to schedule service(s) (“ your vehicle ”).
(b) You agree that your vehicle will be properly registered, licensed, and suitable to schedule service(s) in your Region. You represent that at all times during the provision of any service(s) your vehicle will be in your lawful possession with valid authorization to use your vehicle to complete scheduled service(s) in your Region. You agree that your vehicle will be in safe operating condition, consistent with safety and maintenance standards for a vehicle of its type in the new and fairly used carcommercial fleet industry. You agree to monitor for and repair any parts that are recalled by your vehicle’s manufacturer (as well as anything else the Requirements applicable to your particular Region may require).
1.10 Use of BrushHour Branded Materials.
(a) Except to the extent necessary to comply with applicable law, you are not required to use, wear or display BrushHour’s name or logo on your vehicle or clothing, or to use signaling lights, stickers, decals, or other such materials displaying BrushHour’s name or logo (collectively “ BrushHour Branded Materials ”).
(b) Your authorized display of BrushHour Branded Materials may signify to Crew Chief(s) and Crew Member(s)s and Merchants that your car wash and detail services are facilitated by our Platform. BrushHour grants you a limited license to use, wear or display BrushHour Branded Materials provided directly to you by BrushHour (“ Authorized BrushHour Branded Materials ”) when to schedule service(s) solely for the purpose of identifying yourself and your vehicle to Crew Chief(s) and Crew Member(s)s and Merchants as someone selling car wash and detail services facilitated by our Platform. You agree not to (i) use, wear, or display BrushHour-Branded Materials that are not Authorized BrushHour Branded Materials(ii) purchase, accept, offer to sell, sell or otherwise transfer BrushHour Branded Materials that are not Authorized BrushHour Branded Materials or (iii) offer to sell or sell, or otherwise transfer Authorized BrushHour Branded Materials, without our prior written permission.
(c) The parties expressly agree that your access to, or use of, BrushHour Branded Materials, whether or not authorized, does not indicate an employment or other similar relationship between you and us. You further agree not to represent yourself as our employee, representative, or agent for any purpose or otherwise misrepresent your relationship with us.
1.11. Crashes, Criminal Offenses, and Other Compliance Obligations.
For the purpose of assisting us with our compliance and insurance obligations, you agree to notify us within 24 hours and provide us with all reasonable information relating to any incident (including any crash involving your vehicle) that occurs during your provision of a car wash and detail service and you agree to cooperate with any investigation and attempted resolution of such incident.
If you schedule service for the vehicle(s), the obligations in this Section 1.11 shall apply.
(a) You will maintain automobile liability insurance on your vehicle(s) that provides protection against bodily injury and property damage at coverage levels that satisfy the minimum requirements to operate a vehicle on public roads. You will notify us in writing immediately if the policy you have is canceled.
(b) If you have any questions or concerns about the scope or applicability of your insurance coverage, it is your responsibility to resolve them with your insurer.
(c) We may, in our sole discretion, choose to maintain auto insurance related to your service(s), but we are not required to provide you with any specific coverage for loss to you or your vehicle unless we specifically describe it in an addendum to this MSA. We can change or alter insurance that is maintained by us, if any, at any time without notice to you or authorization from you.
3.2. Other service(s). If you would like service for a motorcycle (or similar), or vintage vehicle older in age than the year 2000, we will not provide any form of insurance and you will be responsible for reimbursing us for any amounts that we are found liable for in respect to your use of such automobile or other motorized devices outside our normal service vehicle(s).
1.12. Location-Based Technology Services; Communication Consents.
(a) Your device geo-location information is required for the proper functioning of our Platform, and you agree to not take any action to manipulate or falsify your device geo-location. You grant us the irrevocable right to obtain your geolocation information and to share your location with third parties, including your Crew Chief(s) and Crew Member(s)s and Merchants, who will see the approximate location of your vehicle in the applicable BrushHour app before and during the car wash and detail service. We may not and will not use this information to attempt to supervise, direct, or control you or your provision of service(s).
(b) You agree that we may contact you by email, telephone, or text message (including by an automatic telephone dialing system) at any of the phone numbers provided by you, or on your behalf, in connection with your account. You also understand that you may opt-out of receiving text messages from us at any time, using the mobile device that is receiving the messages, or by contacting us at BrushHour.cofleet. Notwithstanding the foregoing, we may also contact you by any of the above means, including by SMS, in case of suspected fraud or unlawful activity by you or on your account.
1.13 Submitting Merchant Receipts. As part of your provision of Combined Services,
you understand and agree that you shall timely submit a valid copy of the itemized Merchant receipt evidencing the amount spent for the items pre-authorized by the Crew Chief(s) and Crew Member(s) and confirm prices, in the Scheduler Web App / App / Website or as otherwise indicated by us. You acknowledge and agree that in the event of an invalid receipt submission, you may be required to reimburse Crew Chief(s) and Crew Member(s). We will provide you notice electronically of any material changes to this obligation.
2. VIOLATION; TERMINATION.
2.1 BrushHour reserves the right to investigate violations of any of this Agreement or any other policies of BrushHour or the Services, or any other violations of any state, federal or local law, rule or regulation, and to pursue any remedy available to BrushHour whether at law, in equity or otherwise. You hereby acknowledge and agree that BrushHour may notify, involve and cooperate with law enforcement authorities in investigating and prosecuting users who violate this Agreement or any other policies of BrushHour or the Services, and any other violations of any state, federal or local laws, rules or regulations.
2.2 You further acknowledge and agree that BrushHour may, in its sole discretion, suspend or cancel the partnership of, and terminate this Agreement with, any user that breaches this Agreement. The breach includes, without limitation, your failure to make any and all payments when due.
2.3 Notwithstanding anything to the contrary, BrushHour may refuse, in its sole discretion, to permit any use of the Services, and may refuse to permit any person to use the Services for any reason at any time.
3. PAYMENT AND REFUNDS.
3.1 In consideration of the provision of the Services and the rights granted to you under this Agreement, you shall pay the fees set out in BrushHour’s then-current fee schedule (available when you log-in on the billing section). The fees will vary depending on the Services purchased and may be updated from time to time as described in Section 4 below.
3.2 An ACH, valid credit, or valid debit card will be required for billing and invoicing purposes. You hereby allow BrushHour to store (or cause a third party to store on behalf of BrushHour) such payment information and agree to the following policies and procedures for payment of fees related to the Services:
(a) All fees charged by BrushHour in connection with the Services are exclusive of any taxes, levies, or duties imposed by any taxing authority, and you shall be, and hereby are, responsible for the payment of all such taxes, levies, or duties arising from your use of the Services.
(b) All payments made to BrushHour in connection with the Services are non-refundable, and BrushHour does not offer and is not required to provide any refunds or credits. There is no circumstance in which you will be entitled to, or BrushHour is required to provide a refund or credit. In its sole discretion, BrushHour may provide a refund in a manner BrushHour deems reasonable if (i) BrushHour terminates your agreement without cause before the end of a billing period for which you have paid in full, or (ii) you are seeking a refund otherwise specifically provided for by this Agreement or other written policies of the Services and/or BrushHour then in effect and fully applicable.
4. MODIFICATIONS.
4.1 You acknowledge and agree that we have the right, in our sole discretion, to modify the Services, fees, costs, and pricing, and this Agreement from time to time and that modified terms become effective on posting. You will be notified of modifications through posts on https://www.BrushHour.cofleets and may be notified pursuant to the means described in Section 4.3 below. You are responsible for reviewing and becoming familiar with any such modifications. BrushHour will endeavor to provide at least seven (7) days’ advance notice of changes to any service level that BrushHour reasonably anticipates may result in a material reduction in quality or Services. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms.
4.2 Notwithstanding the foregoing or anything to the contrary, (a) BrushHour reserves the right from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof); and (b) BrushHour shall not be liable to you, or any third party, for any damages, costs, expenses or other liabilities related to any modification, price change, suspension or discontinuance of the Services.
4.3 Without limiting the foregoing, BrushHour may use email to an email address associated with your account, even if we have other contact information, to alert you to any modifications. You also agree that BrushHour may communicate with you through any available means including email, mobile number, telephone, or delivery services, including the postal service, about your account or the Services. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive information about the Services or pricing.
5. UPGRADING, DOWNGRADING, OR CANCELLING PARTNERSHIP
5.1 Your Services may be upgraded, downgraded or canceled, subject to the terms hereof. When you upgrade, you will be charged the difference between your upgraded Services and your prior Services. When you downgrade Services, you will be charged the applicable fee for the downgraded Services at the beginning of the next billing period after you downgrade.
6. DISCLAIMER OF WARRANTIES.
6.1 THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH NO WARRANTIES WHATSOEVER. BrushHour AND EACH USER OF THE SERVICES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. Without limiting the generality of the foregoing or any other provision hereof, BrushHour does not warrant that the Services will be available or that any particular BrushHour Service Location will be operational at all times.
6.2 YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LIABILITY, CLAIM, DAMAGES, LOSS, COST OR EXPENSE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, THAT RESULTS FROM OR ARISES FROM YOUR USE OF THE SERVICES.
7. LIMITATIONS OF LIABILITY.
WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, BrushHour, ITS AFFILIATES, AND ITS SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, AND AGENTS, SHALL NOT BE LIABLE TO YOU, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR (A) ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, REVENUES OR BUSINESS, ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT, OR (B) ANY DAMAGES OF ANY KIND ARISING OUT OF, UNDER OR RELATING TO THE SERVICES IN EXCESS OF THREE TIMES THE MOST RECENT PAYMENT IN CONNECTION WITH THE SERVICES, IF ANY, OR $100, WHICHEVER AMOUNT IS GREATER. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL THEIR ESSENTIAL PURPOSE.
8. INDEMNIFICATION.
You agree to indemnify and hold harmless BrushHour, its affiliates, and its subsidiaries, and their respective officers, directors, managers, shareholders, members, employees, and agents, from any and all claims, losses, damages, liabilities, and any other costs and expenses (including attorneys’ fees), arising from or related to a claim (i) due to your failure to comply with this Agreement, or (ii) due to your negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement.
9. MISCELLANEOUS.
9.1 Privacy Policy. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy (available at: https://www.BrushHour.co/privacy), and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.
9.2 Governing Law. Any claim under this Agreement or otherwise related to the Services or BrushHour shall be governed by the laws of the State of Wyoming without regard to its conflict of law provisions.
9.3 Arbitration. IN THE EVENT OF ANY DISPUTE (OTHER THAN ONE FILED IN A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS, OR AS SET FORTH IN SECTION 9.6) BETWEEN YOU AND BrushHour (“BrushHour” AS USED IN THIS PROVISION MEANS BrushHour, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS), YOU AND BrushHour CONSENT TO ARBITRATE THAT DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN-CURRENT RULES OF THE DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN-CURRENT RULES OF THE AMERICAN ARBITRATION ASSOCIATION RATHER THAN LITIGATE THE DISPUTE IN COURT. YOU AND BrushHour ALSO AGREE THAT THE FEDERAL ARBITRATION ACT GOVERNS THE ARBITRABILITY OF ALL DISPUTES BETWEEN YOU AND BrushHour. IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY BrushHour IN WRITING, BY MAIL TO BrushHour AT PO BOX #1665 Chicago, IL 60604, WITHIN 30 DAYS OF THE EFFECTIVE DATE, STATING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH BrushHour BY ARBITRATION. IN ADDITION, YOU AGREE NOT TO PARTICIPATE IN A CLASS ACTION, A CLASS-WIDE ARBITRATION, CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT IF BrushHour IS A PARTY TO THE PROCEEDING. THE ARBITRATOR SHALL INTERPRET AND DETERMINE THE VALIDITY OF THE ARBITRATION PROVISION, INCLUDING ANY ALLEGED UNCONSCIONABILITY.
9.4 Severability. If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified to render it enforceable and effective to the maximum extent possible to effect the intent of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement will not be affected in any way.
9.5 Entire Agreement (The Service Terms). You agree that this Agreement and any terms, conditions, or other policies of BrushHour constitute the entire, complete, and exclusive agreement between you and us regarding the Services, and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement.
9.6 Equitable Remedies. You agree that BrushHour would be irreparably damaged if this Agreement were not specifically followed and enforced. In such an event, you agree that BrushHour shall be entitled, without bond or other security, or proof of damages, to appropriate equitable relief in the event you breach this Agreement, and that the awarding of equitable relief to BrushHour will not limit its ability to receive remedies that are otherwise available to BrushHour under applicable laws. Notwithstanding Section 9.3, you agree that BrushHour shall still be allowed to apply for equitable relief in any jurisdiction.
9.7 Assignment. BrushHour may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign this Agreement without BrushHour’s prior written consent. Your assignment of this Agreement without BrushHour’s prior written consent shall be void.
9.8 Waivers. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches.
9.9 Headings. The division of this Agreement into sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement.
9.10 Questions. Questions about The Service Terms clause and agreement should be addressed via email.
4. Access and Use of the Services
User Accounts.
To use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. Account registration requires you to submit to BrushHour certain personal information, such as your name, address, mobile phone number, and age, as well as at least one valid payment method supported by BrushHour. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by BrushHour in writing, you may only possess one Account.
User Requirements and Conduct.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive service or logistics services from Third Party Providers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances, you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
Referrals and Promotional Codes.
BrushHour may, in its sole discretion, create referral and/or promotional codes ("Promo Codes") that may be redeemed for discounts on future Services and/or a Third Party Provider's services, or other features or benefits related to the Services and/or a Third Party Provider's services, subject to any additional terms that BrushHour establishes. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by BrushHour; (iii) may be disabled by BrushHour at any time for any reason without liability to BrushHour; (iv) may only be used pursuant to the specific terms that BrushHour establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. BrushHour reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that BrushHour determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of BrushHour's Terms.
User-Provided Content.
BrushHour may, in BrushHour's sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to BrushHour through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to BrushHour, you grant BrushHour a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and BrushHour's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents, and releases necessary to grant BrushHour the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor BrushHour's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by BrushHour in its sole discretion, whether or not such material may be protected by law. BrushHour may, but shall not be obligated to, review, monitor, or remove User Content, at BrushHour's sole discretion and at any time and for any reason, without notice to you.
Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. BrushHour does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
5. Payment
You understand that use of the Services may result in charges to you for the services or goods you receive ("Charges"). BrushHour will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, municipal tolls, airport surcharges, or processing fees for split payments. Please visit www.BrushHour.com for further information on your particular location.
As between you and BrushHour, BrushHour reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time at BrushHour's sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. BrushHour will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. BrushHour may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel up to 48 hours prior to Services to the commencement of such Services, in which case you may be charged a cancellation fee on a Third Party Provider’s behalf. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback. BrushHour may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Third Party Providers or other third parties.
In certain cases, with respect to Third-Party Providers, Charges you incur will be owed directly to Third Party Providers, and BrushHour will collect payment of those charges from you, on the Third Party Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as a payment made directly by you to the Third Party Provider. In such cases, you retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods, and Charges you incur will be owed to the Third Party Provider. BrushHour will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good. This payment structure is intended to fully compensate a Third Party Provider, if applicable, for the services or goods obtained in connection with your use of the Services. In all other cases, Charges you incur will be owed and paid directly to BrushHour or its affiliates, where BrushHour is solely liable for any obligations to Third Party Providers. In such cases, you retain the right to request lower Charges from BrushHour for services or goods received by you from a Third Party Provider at the time you receive such services or goods, and BrushHour will respond accordingly to any request from you to modify the Charges for a particular service or good. Except with respect to taxicab service services requested through the Application, BrushHour does not designate any portion of your payment as a tip or gratuity to a Third Party Provider. Any representation by BrushHour (on BrushHour's website, in the Application, or BrushHour's marketing materials) to the effect that tipping is "voluntary," "not required," and/or "included" in the payments you make for services or goods provided is not intended to suggest that BrushHour provides any additional amounts, beyond those described above, to a Third Party Provider you may use. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary.
Repair or Replacement Fees.
You shall be responsible for the cost of repair for damage to, or necessary replacement of, Provider tools and property resulting from use of the Services under your Account in excess of normal "wear and tear" damages and necessary replacement ("Repair or Replacement"). In the event that a Repair or Replacement request is verified by BrushHour in BrushHour's reasonable discretion, BrushHour reserves the right to facilitate payment for the reasonable cost of such Repair or Replacement using your payment method designated in your Account. Such amounts will be transferred by BrushHour to a Third Party Provider, if applicable, and are non-refundable.
6. Electronic Communications
When you visit BrushHour.co or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Website. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Terms and Conditions for BrushHour's Text Message Program
IMPORTANT! PLEASE READ THESE BrushHour's TEXT MESSAGE PROGRAM TERMS AND CONDITIONS CAREFULLY BEFORE SIGNING UP FOR ANY BrushHour'sTEXT MESSAGE PROGRAM. BY SIGNING UP FOR ONE OR MORE OF BrushHour'sTEXT MESSAGE PROGRAMS, YOU AGREE TO ABIDE BY AND BE BOUND TO THESE BrushHour TEXT MESSAGE TERMS AND CONDITIONS.
BrushHour operates marketing and transactional text message programs, which are further described below in detail. The following terms apply to all of the Text Programs: All of the BrushHour'stext message programs and participation in any text message program is also governed by other provisions of these BrushHour Terms & Conditions and Privacy Policy.
By opting into any text message program, you consent to the use of an electronic record to document your Opt-In. To withdraw that consent, request documentation of the Opt-In, or update our records with your contact information, please call (224) 707-0527. These Terms & Conditions still will apply if you withdraw the consent mentioned above or opt-out of each of the text message programs. If you feel comfortable, provide your name or at least the phone number on the voice message system explicitly stating that you would like to opt-out of the BrushHour'sText Message Program.
By signing up for one or more text messaging programs or scheduling on this website, you expressly consent to receive marketing or non-marketing text messages, as applicable, from or on behalf of BrushHour, including but not limited to, text messages made with an automatic telephone dialing system (“autodialer”), at the telephone number(s) that you provide. You may opt-out of these communications at any time. Consent to receive text messages is not a condition of purchasing any property, goods, or services.
Program Description - BrushHour and its service providers may use an autodialer to deliver text messages to you. BrushHour text messages are intended to provide you with marketing and promotional information regarding BrushHour products and services (e.g., appointments and promotions offered by BrushHour or any of its authorized dealers). We may also provide you with transaction-related information.
After joining any of BrushHour's marketing text programs, you may receive text messages regarding special offers, new products, in-store events, shopping cart reminders and other marketing communications related to the applicable program that you joined.
Message Frequency - The number of BrushHour text messages that you receive will vary depending on which BrushHour text messaging programs for which you sign up to receive messages and the frequency of the messages sent by those programs. You will receive a maximum of approximately seven (7) marketing or promotional text messages per week.
Cost - Message and data rates may apply to each text message sent or received in connection with BrushHour text messages, as provided in your mobile telephone service rate plan (please contact your mobile telephone carrier for pricing plans), in addition to any applicable roaming charges. BrushHour does not impose a separate fee for sending BrushHour text messages; however, you are responsible for any fees imposed by your mobile carrier of any kind whatsoever.
How to Opt-In - To opt-in to receive text messages from a BrushHour text messaging program(s), please follow the instructions provided by the specific program from which you wish to receive messages. For example: (i) you may be asked to check an opt-in check box on the collection page where you entered your phone number; (ii) by responding to a prompt to text a keyword as directed to a number; (iii) or by replying in the affirmative in the manner indicated in an initial text message (e.g., Y or Yes).
How to Opt-Out - To stop receiving text messages from a specific BrushHour text messaging program, text STOP to the five-digit short code or phone number for the text messaging program from which you no longer wish to receive messages. You acknowledge that you may then receive one (1) final message from BrushHour confirming your opt-out of that text messaging program. Following such a confirmation message, no additional text messages associated with that program will be sent to you unless you re-activate your subscription. You will remain opted into other BrushHour text messaging programs. You may also indicate your choice to stop receiving promotional text messages from BrushHour by calling (224) 707-0527.
Your Mobile Telephone Number - By completing the opt-in process for any text program, you represent and confirm that you are the account holder for the mobile telephone number(s) that you enroll and that you are authorized to grant BrushHour the right to send text messages to that number. You are responsible for notifying BrushHour immediately if you change your mobile telephone number. You may notify BrushHour of a number change by contacting BrushHour at (224) 707-0527. If you feel comfortable, provide your name or at least the phone number on the voice message system explicitly stating that you would like to change your number in the BrushHour'sText Message Program. If you change your mobile phone number, you agree to opt out of the program prior to changing your mobile number.
You agree to indemnify, defend and hold us harmless from any third-party claims, liability, damages, expenses, and/or costs arising from your use of the program, from you providing us with a phone number that is not your own, or by your failure to notify BrushHour if you change your telephone number or if you do not opt-out your prior telephone number, including but not limited to those arising under the Telephone Consumer Protection Act (“TCPA”).
Access or Delivery to Mobile Network is Not Guaranteed - It is your responsibility to determine if your mobile carrier supports text messaging and if your mobile device is capable of receiving text messages. Your receipt of our text messages is subject to the terms and conditions of your agreement(s) with your mobile carrier.
Delivery of information and content to a mobile device may fail due to a variety of circumstances or conditions. You understand and acknowledge that network services, including but not limited to mobile network services, are outside of BrushHour’s control, and BrushHour is not responsible or liable for issues arising from such network services (e.g., delayed or undelivered messages or the security of any messages).
Carriers are not liable for delayed or undelivered messages.
Support/Help - To request more information, you may contact BrushHour at [email protected].
Eligibility - To receive BrushHour text messages, you must be a resident of the United States and 18 years of age or older.
Changes to Terms and Conditions - BrushHour may revise, modify, or amend these BrushHour'sText Message Program at any time. Any such revision, modification, or amendment shall take effect when it is posted to BrushHour's website at https://BrushHour.co/terms. You agree to review these BrushHour'sText Message Program periodically to ensure that you are aware of any changes. Your continued consent to receive BrushHour text messages will indicate your acceptance of those changes.
Termination of Text Messaging - We may suspend or terminate your receipt of BrushHour text messages if we believe you are in breach of these BrushHour'sText Message Program Terms and Conditions. Your receipt of BrushHour text messages is also subject to termination in the event that your mobile telephone service terminates or lapses. BrushHour reserves the right to modify or discontinue, temporarily or permanently, all or any part of any BrushHour'sText Message Program, with or without notice.
7. Disclaimers; Limitation of Liability; Indemnity.
DISCLAIMER.
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." BrushHour DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, BrushHour MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. BrushHour DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY, OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY.
BrushHour SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF BrushHour, EVEN IF BrushHour HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BrushHour SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY, OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF BrushHour HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BrushHour SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND BrushHour'S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS PROVIDING SERVICE SERVICES REQUESTED THROUGH SOME REQUEST PRODUCTS MAY OFFER PEER-TO-PEER SERVICE SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED, CERTIFIED, OR PERMITTED BY OR THROUGH THE BrushHour PLATFORM.
THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE SERVICE, GOODS, OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT BrushHour HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICE, GOODS, OR LOGISTICS SERVICES PROVIDED TO YOU BY THIRD-PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, BrushHour'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON BrushHour'S CHOICE OF LAW PROVISION SET FORTH BELOW.
Indemnity.
You agree to indemnify and hold BrushHour and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) BrushHour's use of your User Content; or (iv) your violation of the rights of any third party, including Third-Party Providers.
8. Other Provisions
Choice of Law.
These Terms are governed by and construed in accordance with the laws of the State of Wyoming, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Wyoming to assert claims under Wyoming law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of Wyoming law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Wyoming law to you if you do not otherwise reside in Wyoming. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or any arbitrable disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.
Claims of Copyright Infringement.
Claims of copyright infringement should be sent to BrushHour's designated agent. Please contact us at [email protected] for the designated address and additional information.
Notice.
BrushHour may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first-class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to BrushHour, with such notice deemed given when received by BrushHour, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o BrushHour Systems, LLC. The name and current contact information for the registered agent in each state are available online.
General.
You may not assign these Terms without BrushHour's prior written approval. BrushHour may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of BrushHour's equity, business, or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, BrushHour, or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. BrushHour's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BrushHour in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.
Deactivation. You consent to and we may temporarily deactivate your account without notice to investigate whether you have engaged in, or your account has been used in, an activity that is deceptive, fraudulent, unsafe, illegal, harmful to our brand, business or reputation, or that violates this Agreement (including the policies incorporated herein by reference)(any of the foregoing, a “ Material Breach or Violation ”). You also consent to and we may terminate this Agreement or permanently deactivate your account without notice if we determine in our discretion that a Material Breach or Violation has occurred.
Effect of Termination and Survival. Upon termination, each party will remain responsible for its respective liabilities or obligations that accrued before or as a result of such termination. Once the Agreement is terminated you will no longer access our Platform to schedule service(s). Sections 1, 2, 4, 5, 6-9, 12, and 13 shall survive any termination or expiration of this Agreement.
8.1. Information
We may collect and disclose information from or about you when you create an account, interact with our Platform, or schedule service(s) and as otherwise described in our Privacy Policy. Notwithstanding anything herein to the contrary (a) the collection, use, and disclosure of such information will be made in accordance with our Privacy Policy and (b) if you elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with, or related to, us or our Platform, we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner.
8.2. Confidentiality
8.2.1. Confidential Information. Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party or third parties (“ Confidential Information ”). Confidential Information includes User Information and the volume of car wash and detail services, marketing, and business plans, business, financial, technical, operational, and such other, non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential. Confidential Information does not include any information that: (a) was in the receiving party’s lawful possession prior to the disclosure, as clearly and convincingly
corroborated by written records, and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (b) is lawfully disclosed to the receiving party by a third party without actual, implied or intended restriction on disclosure through the chain of possession, or (c) is independently developed by the receiving party without the use of or access to the Confidential Information, as clearly and convincingly corroborated by written records.
8.3. Obligations.
Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third-party, except to its employees, officers, contractors, agents and service providers (" Permitted Persons ") as necessary to perform their obligations under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party; subject to applicable law and our internal record-keeping requirements.
8.4. Remedies.
The unauthorized use or disclosure of any Confidential Information would cause irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, the parties have the right to obtain immediate equitable relief to enjoin any unauthorized use or disclosure of Confidential Information disclosed by the other party, in addition to any other rights or remedies described in Section 13, applicable law or otherwise.
8.5. Intellectual Property
We reserve all rights not expressly granted in this Agreement. The Scheduler Web App / App / Website, our Platform, and all data gathered through our Platform, including all intellectual property rights therein (the “ Platform IP ”), are and remain our property and/or that of our licensors, as applicable. Neither this Agreement nor your use of BrushHour’s or our licensors’ company names, logos, products or service names, trademarks, service marks, trade dress, other indicia of ownership, or copyrights ('' BrushHour Names, Marks, or Works ”) or the Platform IP conveys or grants to you any rights in or related to the Platform IP, or related intellectual property rights, including
BrushHour’s Names, Marks, or Works, except for the limited license granted above. You shall not, and shall not allow any other party to: (a) license, sublicense, copy, modify, distribute, create, sell, resell, transfer, or lease any part of the Platform IP or Authorized BrushHour-Branded Materials; (b) reverse engineer or attempt to extract the source code of our software, except as allowed under law; (c) use, display, or manipulate any of BrushHour Names, Marks, or Works for any purpose other than to to schedule service(s); (d) create or register any (i) businesses, (ii) URLs, (iii) domain names, (iv) software application names or titles, or (v) social media handles or profiles that include BrushHour Names, Marks, or Works or any confusingly or substantially similar mark, name, title, or work; (e) use BrushHour Names, Marks, or Works as your social media profile picture or wallpaper; (f) purchase keywords (including, but not limited to Google AdWords) that contain any BrushHour Names, Marks, or Works; (g) apply to register, reference, use, copy, and/or claim ownership in BrushHour’s Names, Marks, or Works, or in any confusingly or substantially similar name, mark, title, or work, in any manner for any purposes, alone or in combination with other letters, punctuation, words, symbols, designs, and/or any creative works, except as may be permitted in the limited license granted above; (h) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any part of our Platform or data; or (i) aggregate our data with competitors’.
8.6. Third-Party Services
From time to time we may permit third parties to offer their services to users of our Platform. Third-party services may be subject to additional terms (including pricing) that apply between you and the party(ies) providing such services. If you choose to access the third-party services you understand that the providers of the third-party services are solely responsible for liabilities arising in connection with the access and use of such third party services. While we may allow users to access such services through our Platform and we may collect information about our users’ use of such services, we may not investigate, monitor, or check such third-party services for accuracy or completeness.
8.7. Miscellaneous
8.7(a) Modification. You will only be bound by modifications or supplements to this MSA on your acceptance, but if you do not agree to them, you may not be allowed to access our Platform. Such modifications or supplements may be provided to you only via electronic means.
From time to time we may modify information hyperlinked in this MSA (or the addresses where such information may be found) and such modifications shall be effective when posted.
8.7(b) Severability.
The invalidity of any provision of this Agreement does not affect the rest of this Agreement. The parties shall replace the invalid or non-binding provision with provision(s) that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
8.7(c). Assignment.
We may freely assign or transfer this Agreement or any of our rights or obligations in them, in whole or in part, without your prior consent. You agree not to assign this Agreement, in whole or in part, without our prior written consent, and any attempted assignment without such consent is void.
8.7(d) Conflicts.
Except with respect to the Arbitration Provision, if there is a conflict between this MSA and any supplemental terms between you and us, those supplemental terms will prevail with respect to the specific conflict if explicitly provided therein, and is in addition to, and a part of, this Agreement.
8.8. Interpretation.
In this Agreement, “ including ” and “ include ” mean “ including, but not limited to .”
8.9. Notice.
Except as explicitly stated otherwise, any notices to us shall be given by certified mail, postage prepaid, and return receipt requested to BrushHour, PO Box #1665 Chicago, IL 60690 , Attn: Legal (P&C). All notices to you may be provided electronically including through our Platform or by other means.
8.10. Governing Law.
Except as specifically provided in this MSA, this MSA is governed by the State of Wyoming. The Governing Law shall apply without reference to the choice-of-law principles that would result in the application of the laws of a different jurisdiction.
8.11. Entire Agreement.
Except as specifically set forth in Section 12.4 or the Arbitration Provision, this Agreement constitutes the entire agreement and understanding with respect to the subject matter expressly contemplated herein and therein, and supersedes all prior or contemporaneous agreements or undertakings on this subject matter.
7.12. No Incorporation.
Notwithstanding anything herein to the contrary, no agreement, term, or other provision relating to your indemnification obligations to us will be considered incorporated by reference, or otherwise a part of, this Agreement.
8.13. Existing Documents.
Defined terms in documents accepted in connection with your acceptance of this Agreement that reference a Technology Services Agreement shall be deemed amended to reference analogous terms defined in this Agreement, including by replacing the term “Technology Services Agreement” with “Platform Access Agreement”.
8.14. Arbitration Provision
IN THE EVENT OF ANY DISPUTE (OTHER THAN ONE FILED IN A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS, OR AS SET FORTH IN SECTION 9.6) BETWEEN YOU AND BrushHour (“BrushHour” AS USED IN THIS PROVISION MEANS BrushHour, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS), YOU AND BrushHour CONSENT TO ARBITRATE THAT DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN-CURRENT RULES OF THE AMERICAN ARBITRATION ASSOCIATION RATHER THAN LITIGATE THE DISPUTE IN COURT. YOU AND BrushHour ALSO AGREE THAT THE FEDERAL ARBITRATION ACT GOVERNS THE ARBITRABILITY OF ALL DISPUTES BETWEEN YOU AND BrushHour. IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY BrushHour IN WRITING, BY MAIL TO BrushHour AT PO BOX #1665 Chicago, IL 60604, WITHIN 30 DAYS OF THE EFFECTIVE DATE, STATING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH BrushHour BY ARBITRATION. IN ADDITION, YOU AGREE NOT TO PARTICIPATE IN A CLASS ACTION, A CLASS-WIDE ARBITRATION, CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT IF BrushHour IS A PARTY TO THE PROCEEDING. THE ARBITRATOR SHALL INTERPRET AND DETERMINE THE VALIDITY OF THE ARBITRATION PROVISION, INCLUDING ANY ALLEGED UNCONSCIONABILITY.
COMMERCIAL TERMS & CONDITIONS NOTICE
December 13, 2023
These terms of service constitute a legally binding agreement (the “Agreement”) between you and BrushHour Systems, LLC. (“BrushHour,” "BrushHour Systems, LLC.”, “we,” “us,” or “our”) governing your use of the BrushHour web app, website, and technology platform (collectively, the “BrushHour Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND BrushHour HAVE AGAINST EACH OTHER CAN BE BROUGHT. THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST BrushHour TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS AN Provider, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED BELOW.
By entering into this Agreement, you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provision) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE BrushHour PLATFORM.
1. Contractual Relationship
These Terms of Use ("Terms") govern your access or use, from within the United States and its territories and possessions, of the applications, websites, content, products, and services (the "Services," as more fully defined below in Section 3) made available in the United States and its territories and possessions by BrushHour Systems, LLC and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "BrushHour"). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BrushHour. In these Terms, the words "including" and "include" mean "including, but not limited to."
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. BrushHour may immediately terminate these Terms or any Services with respect to you, or generally, cease offering or deny access to the Services or any portion thereof, at any time for any reason.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH BrushHour ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate region-specific disclosures (e.g., a particular city webpage on BrushHour.com) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
BrushHour may amend the Terms from time to time. Amendments will be effective upon BrushHour's posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If BrushHour changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing BrushHour written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o BrushHour Systems, LLC (the name and current contact information for the registered agent in each state are available online), or (b) by email from the email address associated with your Account to: [email protected]. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).
BrushHour's collection and use of personal information in connection with the Services is described in BrushHour's Privacy Statements located at www.BrushHour.com/privacy.
2. Arbitration Agreement
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against BrushHour on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against BrushHour, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against BrushHour by someone else.
You and BrushHour agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and BrushHour, and not in a court of law.
You acknowledge and agree that you and BrushHour are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and BrushHour otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and BrushHour each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Rules and Governing Law.
The arbitration will be administered by National Arbitration and Mediation (“NAM”) in accordance with NAM’s Comprehensive Dispute Resolution Rules and Procedures and/or NAM’s Supplemental Rules for Mass Arbitration Filings (“NAM’s Rules”) then in effect, except as modified by this Arbitration Agreement. NAM’s Rules are available at www.namadr.com or by calling 1-800-358-2550.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. The parties intend that the FAA will apply even if the application of the FAA would result in the invalidation of this Arbitration Agreement. If the FAA is found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Wyoming.
Process.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in NAM’s Rules. The Arbitrator will be either (1) a retired judge or (2) an attorney licensed to practice law in the state of Wyoming and will be selected by the parties from NAM’s roster of arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then NAM will appoint the Arbitrator in accordance with NAM’s Rules.
Location and Procedure.
Unless you and BrushHour otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely based on documents you and BrushHour submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by NAM’s Rules. Subject to NAM’s Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision.
The Arbitrator will render an award within the time frame specified in NAM’s Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. BrushHour will not seek, and hereby waives all rights BrushHour may have under applicable law to recover, attorneys’ fees and expenses if BrushHour prevails in arbitration.
Fees.
Your responsibility to pay any NAM filing, administrative and arbitrator fees will be solely as set forth in NAM’s Rules.
Changes.
Notwithstanding the provisions above, regarding consent to be bound by amendments to these Terms, if BrushHour changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing BrushHour written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o BrushHour Systems, LLC (the name and current contact information are available online here), or (b) by email to the [email protected]. To be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and BrushHour in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall stay pending the outcome of any individual claims in arbitration.
3.1 The Online Experience & Online Service
The Services comprise mobile applications and related services (each, an "Application"), which enable users to arrange and schedule service, logistics, and/or delivery services and/or to purchase certain goods, including with third-party providers of such services and goods under agreement with BrushHour or certain of BrushHour's affiliates ("Third Party Providers"). In certain instances, the Services may also include an option to receive service, logistics, and/or delivery services for an upfront price, subject to acceptance by the respective Third-Party Providers. Unless otherwise agreed by BrushHour in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN SERVICE, LOGISTICS, AND/OR DELIVERY SERVICES THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH BrushHour AS A PROVIDER OF SERVICE, LOGISTICS, OR DELIVERY SERVICES OR AS A SERVICE CARRIER.
License.
Subject to your compliance with these Terms, BrushHour grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by BrushHour and BrushHour's licensors.
Restrictions.
You may not: (i) remove any copyright, trademark, or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by BrushHour; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Provision of the Services.
You acknowledge that portions of the Services may be made available under BrushHour's various brands or request options associated with service or logistics, including the service request brands currently referred to as "BrushHour''. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of BrushHour's subsidiaries and affiliates; or (ii) independent Third-Party Providers.
Third-Party Services and Content.
The Services may be made available or accessed in connection with third-party services and content (including advertising) that BrushHour does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content. BrushHour does not endorse such third-party services and content and in no event shall BrushHour be responsible or liable for any products or services of such third-party providers. Additionally, Apple Inc., Google, Inc., Microsoft Corporation, or BlackBerry Limited will be a third-party beneficiary to this contract if you access the Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third-party beneficiary's terms of service.
Ownership.
The Services and all rights therein are and shall remain BrushHour's property or the property of BrushHour's licensors. Neither these Terms nor your use of the Services conveys or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner BrushHour's company names, logos, product and service names, trademarks or services marks or those of BrushHour's licensors.
3.2 The Service Terms
This Terms of Service Agreement (this “Agreement”) is a binding contract between you (“Customer,” “you” or “your”) and BrushHour Systems, LLC, an Wyoming limited liability company, and its subsidiaries and affiliates (collectively, “BrushHour,” “we,” or “us”). This Agreement governs your access to and use of the Services (as defined below).
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE ACCEPT BUTTON OR BY ACCESSING OR USING THE SERVICES (the “Effective Date”). BY CLICKING ON THE ACCEPT BUTTON OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
YOU SHOULD CAREFULLY READ THIS AGREEMENT BEFORE PURCHASING ANY SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK ON THE ACCEPT BUTTON OR USE THE SERVICES. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION 9.3 TO RESOLVE ANY DISPUTES WITH BrushHour (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT).
1. GENERAL TERMS.
1.1 BrushHour provides car washes to its customers (collectively, “Services”), which may include a partnership or agreement granting access to the Services (each a “partnership”). BrushHour also provides BrushHour accounts to its customers to allow them to manage Services that they receive (each an “account”), which can be accessed as available through online services that BrushHour may make available from time to time.
1.2 The types of car wash Services may vary at each BrushHour Service Location. In addition to the car wash Services, BrushHour may provide certain additional products and services (“additional Services”), such as vacuums, hand towel drying services, towels, dashboard wipes, or other products and services BrushHour makes available at a BrushHour Service Location from time to time; provided, however, BrushHour does not guarantee that (a) any additional Services will be available or continue to be available, as part of the car wash Services, (b) that the same additional Services will be available at each BrushHour Service Location, or (c) that any additional Services will be provided without additional charge.
1.3 We may offer a number of different plans, including the following:
Our employees, independent contractors, and partners hold the right to not perform services in the following areas at BrushHour’s Discretion:
Areas that are said to be against government laws and regulations.
Areas that are unfit or unsafe for the safety of our employees and partners.
Areas with high traffic streets.
unless there is a bike lane, high traffic streets may vary.
Areas with parking garages or parking lots that require payment with pay gates/attendants.
Areas at, on, or near Airport property.
Areas that look to be or are considered government property without written consent emailed from an official or holding power of the city, state, or government.
Service areas and vehicles that are surrounded or covered with heavy snow, ice, frost, or black ice.
During extreme weather (below 27° F (“feels like” temperatures) or above 89° F (feels like temperatures), our Crews may temporarily request a small indoor space (or a bay) upon our arrival to avoid frozen door jambs and/or to provide a quality service. This ensures vehicles are readily available for immediate display upon the completion of service. In the event, that a two-car accessible space cannot be provided, and if below 27° F (“feels like” temperatures) or above 89° F (feels like temperatures, crews may reschedule due to extreme weather conditions.
While our team implements many internal policies to ensure vehicles are safely
maintained, some solvents may affect some plastic under the hood over extended
periods of time, especially when engine bay service is repeated.
Our employees, independent contractors, and partners are not responsible for any misplaced or lost items in the vehicle. BrushHour suggests that customers and members remove any valuable items and belongings from your vehicle before service begins. BrushHour asks that all medium and large trash (larger than 5 inches) be removed from the vehicle before service begins. BrushHour does not haul or take away food from the location of service.
While it is in our best interest to provide stellar service and clean vehicles thoroughly avoiding damage as best as possible, BrushHour does not guarantee 100% stain removal, 100% odor removal, 100% sand removal, or 100% pet hair removal. For the health and safety of our community, we do not clean human or animal bodily fluids.
1.4 This Agreement governs your use of the Services. By using the Services, you agree (a) that you have read and understood this Agreement, and that this Agreement creates a valid and binding agreement, enforceable against you in accordance herewith; (b) to be bound by this Agreement and any terms, conditions or other policies of BrushHour, as each may be amended or supplemented from time to time as described in Section 4 below; and (c) that your use of the Services shall comply with all applicable federal, state and local laws or regulations, and that you are solely responsible for your compliance with, familiarity with, and understanding of any such laws applicable to your use.
1.5 Additionally, and without limiting the foregoing, by using the Services, you represent and warrant that you: (a) are eighteen (18) years of age or older; (b) are not currently restricted from using the Services, or not otherwise prohibited from having an account for the Services; (c) are not a competitor of the Services or are not using the Services for reasons that compete with the Services or any other product or service offered by BrushHour; (d) have full power and authority to enter into and perform this Agreement, and doing so will not violate any other agreement to which you are a party; (e) will not violate any rights of BrushHour, including intellectual property rights such as copyright or trademark rights; and (f) agree to provide at your cost anything necessary to use the Services.
1.6 Without limiting the generality of the foregoing or any other provision hereof, you acknowledge and agree as follows:
Not to use the Services in any manner that is, or could reasonably be construed to be, unlawful, fraudulent, misleading, malicious, or discriminatory;
The Services under this Agreement are for personal use only. The Services may not be used for Commercial Use (as defined below);
The Services may not be used for Non-Compatible Vehicles (as defined below); and
Except as set forth in this Agreement or communicated to you in writing by BrushHour, no Services may be combined with any other Services, programs, or discounts.commercial fleets may be able to purchase a One-time Wash with an applicable discount provided by emailing BrushHour.
As used herein: (a) “Commercial Use” means the use of the Services for vehicles that are being used or maintained (i) for the transportation of persons or property for hire, compensation, or profit, (ii) by a business, governmental entity or other organization, or (ii) for any other commercial purpose; and (b) “Non-Compatible Vehicles” means vehicles that are not compatible with the equipment at the BrushHour Service Location for any reason, including, without limitation, vehicles that (i) are incompatible by size, design or modification, or (ii) have accessories, trailers or other items attached to the vehicle that make the vehicle incompatible.
1.7 Access Credentials. You are responsible for keeping your Access Credentials (as defined below) associated with the Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us upon learning about any unauthorized access to your Access Credentials. “Access Credentials” means any user name, email address, identification number, password, license plate or license plate number, an access key or token, PIN or another method, technology or device used, alone or in combination, to verify a customer and/or access the Services.
1.8 Compliance. You are responsible for identifying, understanding, and complying with (i) all laws (including, but not limited to, the Americans with Disabilities Act and applicable laws governing your collection, use, disclosure, security, processing, and transfer of data ), rules and regulations that apply to your provision of service(s) (including whether you are permitted to provide services at all) in the jurisdiction(s) in which you operate (your “ Region ”) and (ii) this Agreement (collectively, the “Requirements”). Notwithstanding anything to the contrary in this Agreement, for the avoidance of doubt, your ability to access and use our Platform is at all times subject to your compliance with the Requirements. You agree not to access or attempt to access our Platform if you are not in compliance with the requirements.
1.9 Vehicle Standards.
(a) During your account creation and registration, we will collect, and may verify, certain information about you and the vehicle(s) you use to schedule service(s) (“ your vehicle ”).
(b) You agree that your vehicle will be properly registered, licensed, and suitable to schedule service(s) in your Region. You represent that at all times during the provision of any service(s) your vehicle will be in your lawful possession with valid authorization to use your vehicle to complete scheduled service(s) in your Region. You agree that your vehicle will be in safe operating condition, consistent with safety and maintenance standards for a vehicle of its type in the new and fairly used carcommercial fleet industry. You agree to monitor for and repair any parts that are recalled by your vehicle’s manufacturer (as well as anything else the Requirements applicable to your particular Region may require).
1.10 Use of BrushHour Branded Materials.
(a) Except to the extent necessary to comply with applicable law, you are not required to use, wear or display BrushHour’s name or logo on your vehicle or clothing, or to use signaling lights, stickers, decals, or other such materials displaying BrushHour’s name or logo (collectively “ BrushHour Branded Materials ”).
(b) Your authorized display of BrushHour Branded Materials may signify to Crew Chief(s) and Crew Member(s)s and Merchants that your car wash and detail services are facilitated by our Platform. BrushHour grants you a limited license to use, wear or display BrushHour Branded Materials provided directly to you by BrushHour (“ Authorized BrushHour Branded Materials ”) when to schedule service(s) solely for the purpose of identifying yourself and your vehicle to Crew Chief(s) and Crew Member(s)s and Merchants as someone selling car wash and detail services facilitated by our Platform. You agree not to (i) use, wear, or display BrushHour-Branded Materials that are not Authorized BrushHour Branded Materials(ii) purchase, accept, offer to sell, sell or otherwise transfer BrushHour Branded Materials that are not Authorized BrushHour Branded Materials or (iii) offer to sell or sell, or otherwise transfer Authorized BrushHour Branded Materials, without our prior written permission.
(c) The parties expressly agree that your access to, or use of, BrushHour Branded Materials, whether or not authorized, does not indicate an employment or other similar relationship between you and us. You further agree not to represent yourself as our employee, representative, or agent for any purpose or otherwise misrepresent your relationship with us.
1.11. Crashes, Criminal Offenses, and Other Compliance Obligations.
For the purpose of assisting us with our compliance and insurance obligations, you agree to notify us within 24 hours and provide us with all reasonable information relating to any incident (including any crash involving your vehicle) that occurs during your provision of a car wash and detail service and you agree to cooperate with any investigation and attempted resolution of such incident.
If you schedule service for the vehicle(s), the obligations in this Section 1.11 shall apply.
(a) You will maintain automobile liability insurance on your vehicle(s) that provides protection against bodily injury and property damage at coverage levels that satisfy the minimum requirements to operate a vehicle on public roads. You will notify us in writing immediately if the policy you have is canceled.
(b) If you have any questions or concerns about the scope or applicability of your insurance coverage, it is your responsibility to resolve them with your insurer.
(c) We may, in our sole discretion, choose to maintain auto insurance related to your service(s), but we are not required to provide you with any specific coverage for loss to you or your vehicle unless we specifically describe it in an addendum to this MSA. We can change or alter insurance that is maintained by us, if any, at any time without notice to you or authorization from you.
3.2. Other service(s). If you would like service for a motorcycle (or similar), or vintage vehicle older in age than the year 2000, we will not provide any form of insurance and you will be responsible for reimbursing us for any amounts that we are found liable for in respect to your use of such automobile or other motorized devices outside our normal service vehicle(s).
1.12. Location-Based Technology Services; Communication Consents.
(a) Your device geo-location information is required for the proper functioning of our Platform, and you agree to not take any action to manipulate or falsify your device geo-location. You grant us the irrevocable right to obtain your geolocation information and to share your location with third parties, including your Crew Chief(s) and Crew Member(s)s and Merchants, who will see the approximate location of your vehicle in the applicable BrushHour app before and during the car wash and detail service. We may not and will not use this information to attempt to supervise, direct, or control you or your provision of service(s).
(b) You agree that we may contact you by email, telephone, or text message (including by an automatic telephone dialing system) at any of the phone numbers provided by you, or on your behalf, in connection with your account. You also understand that you may opt-out of receiving text messages from us at any time, using the mobile device that is receiving the messages, or by contacting us at BrushHour.cofleet. Notwithstanding the foregoing, we may also contact you by any of the above means, including by SMS, in case of suspected fraud or unlawful activity by you or on your account.
1.13 Submitting Merchant Receipts. As part of your provision of Combined Services,
you understand and agree that you shall timely submit a valid copy of the itemized Merchant receipt evidencing the amount spent for the items pre-authorized by the Crew Chief(s) and Crew Member(s) and confirm prices, in the Scheduler Web App / App / Website or as otherwise indicated by us. You acknowledge and agree that in the event of an invalid receipt submission, you may be required to reimburse Crew Chief(s) and Crew Member(s). We will provide you notice electronically of any material changes to this obligation.
2. VIOLATION; TERMINATION.
2.1 BrushHour reserves the right to investigate violations of any of this Agreement or any other policies of BrushHour or the Services, or any other violations of any state, federal or local law, rule or regulation, and to pursue any remedy available to BrushHour whether at law, in equity or otherwise. You hereby acknowledge and agree that BrushHour may notify, involve and cooperate with law enforcement authorities in investigating and prosecuting users who violate this Agreement or any other policies of BrushHour or the Services, and any other violations of any state, federal or local laws, rules or regulations.
2.2 You further acknowledge and agree that BrushHour may, in its sole discretion, suspend or cancel the partnership of, and terminate this Agreement with, any user that breaches this Agreement. The breach includes, without limitation, your failure to make any and all payments when due.
2.3 Notwithstanding anything to the contrary, BrushHour may refuse, in its sole discretion, to permit any use of the Services, and may refuse to permit any person to use the Services for any reason at any time.
3. PAYMENT AND REFUNDS.
3.1 In consideration of the provision of the Services and the rights granted to you under this Agreement, you shall pay the fees set out in BrushHour’s then-current fee schedule (available when you log-in on the billing section). The fees will vary depending on the Services purchased and may be updated from time to time as described in Section 4 below.
3.2 An ACH, valid credit, or valid debit card will be required for billing and invoicing purposes. You hereby allow BrushHour to store (or cause a third party to store on behalf of BrushHour) such payment information and agree to the following policies and procedures for payment of fees related to the Services:
(a) All fees charged by BrushHour in connection with the Services are exclusive of any taxes, levies, or duties imposed by any taxing authority, and you shall be, and hereby are, responsible for the payment of all such taxes, levies, or duties arising from your use of the Services.
(b) All payments made to BrushHour in connection with the Services are non-refundable, and BrushHour does not offer and is not required to provide any refunds or credits. There is no circumstance in which you will be entitled to, or BrushHour is required to provide a refund or credit. In its sole discretion, BrushHour may provide a refund in a manner BrushHour deems reasonable if (i) BrushHour terminates your agreement without cause before the end of a billing period for which you have paid in full, or (ii) you are seeking a refund otherwise specifically provided for by this Agreement or other written policies of the Services and/or BrushHour then in effect and fully applicable.
4. MODIFICATIONS.
4.1 You acknowledge and agree that we have the right, in our sole discretion, to modify the Services, fees, costs, and pricing, and this Agreement from time to time and that modified terms become effective on posting. You will be notified of modifications through posts on https://www.BrushHour.cofleets and may be notified pursuant to the means described in Section 4.3 below. You are responsible for reviewing and becoming familiar with any such modifications. BrushHour will endeavor to provide at least seven (7) days’ advance notice of changes to any service level that BrushHour reasonably anticipates may result in a material reduction in quality or Services. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms.
4.2 Notwithstanding the foregoing or anything to the contrary, (a) BrushHour reserves the right from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof); and (b) BrushHour shall not be liable to you, or any third party, for any damages, costs, expenses or other liabilities related to any modification, price change, suspension or discontinuance of the Services.
4.3 Without limiting the foregoing, BrushHour may use email to an email address associated with your account, even if we have other contact information, to alert you to any modifications. You also agree that BrushHour may communicate with you through any available means including email, mobile number, telephone, or delivery services, including the postal service, about your account or the Services. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive information about the Services or pricing.
5. UPGRADING, DOWNGRADING, OR CANCELLING PARTNERSHIP
5.1 Your Services may be upgraded, downgraded or canceled, subject to the terms hereof. When you upgrade, you will be charged the difference between your upgraded Services and your prior Services. When you downgrade Services, you will be charged the applicable fee for the downgraded Services at the beginning of the next billing period after you downgrade.
6. DISCLAIMER OF WARRANTIES.
6.1 THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH NO WARRANTIES WHATSOEVER. BrushHour AND EACH USER OF THE SERVICES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. Without limiting the generality of the foregoing or any other provision hereof, BrushHour does not warrant that the Services will be available or that any particular BrushHour Service Location will be operational at all times.
6.2 YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LIABILITY, CLAIM, DAMAGES, LOSS, COST OR EXPENSE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, THAT RESULTS FROM OR ARISES FROM YOUR USE OF THE SERVICES.
7. LIMITATIONS OF LIABILITY.
WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, BrushHour, ITS AFFILIATES, AND ITS SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, AND AGENTS, SHALL NOT BE LIABLE TO YOU, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR (A) ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, REVENUES OR BUSINESS, ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT, OR (B) ANY DAMAGES OF ANY KIND ARISING OUT OF, UNDER OR RELATING TO THE SERVICES IN EXCESS OF THREE TIMES THE MOST RECENT PAYMENT IN CONNECTION WITH THE SERVICES, IF ANY, OR $100, WHICHEVER AMOUNT IS GREATER. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL THEIR ESSENTIAL PURPOSE.
8. INDEMNIFICATION.
You agree to indemnify and hold harmless BrushHour, its affiliates, and its subsidiaries, and their respective officers, directors, managers, shareholders, members, employees, and agents, from any and all claims, losses, damages, liabilities, and any other costs and expenses (including attorneys’ fees), arising from or related to a claim (i) due to your failure to comply with this Agreement, or (ii) due to your negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement.
9. MISCELLANEOUS.
9.1 Privacy Policy. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy (available at: https://www.BrushHour.co/privacy), and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.
9.2 Governing Law. Any claim under this Agreement or otherwise related to the Services or BrushHour shall be governed by the laws of the State of Wyoming without regard to its conflict of law provisions.
9.3 Arbitration. IN THE EVENT OF ANY DISPUTE (OTHER THAN ONE FILED IN A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS, OR AS SET FORTH IN SECTION 9.6) BETWEEN YOU AND BrushHour (“BrushHour” AS USED IN THIS PROVISION MEANS BrushHour, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS), YOU AND BrushHour CONSENT TO ARBITRATE THAT DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN-CURRENT RULES OF THE DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN-CURRENT RULES OF THE AMERICAN ARBITRATION ASSOCIATION RATHER THAN LITIGATE THE DISPUTE IN COURT. YOU AND BrushHour ALSO AGREE THAT THE FEDERAL ARBITRATION ACT GOVERNS THE ARBITRABILITY OF ALL DISPUTES BETWEEN YOU AND BrushHour. IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY BrushHour IN WRITING, BY MAIL TO BrushHour AT PO BOX #1665 Chicago, IL 60604, WITHIN 30 DAYS OF THE EFFECTIVE DATE, STATING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH BrushHour BY ARBITRATION. IN ADDITION, YOU AGREE NOT TO PARTICIPATE IN A CLASS ACTION, A CLASS-WIDE ARBITRATION, CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT IF BrushHour IS A PARTY TO THE PROCEEDING. THE ARBITRATOR SHALL INTERPRET AND DETERMINE THE VALIDITY OF THE ARBITRATION PROVISION, INCLUDING ANY ALLEGED UNCONSCIONABILITY.
9.4 Severability. If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified to render it enforceable and effective to the maximum extent possible to effect the intent of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement will not be affected in any way.
9.5 Entire Agreement (The Service Terms). You agree that this Agreement and any terms, conditions, or other policies of BrushHour constitute the entire, complete, and exclusive agreement between you and us regarding the Services, and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement.
9.6 Equitable Remedies. You agree that BrushHour would be irreparably damaged if this Agreement were not specifically followed and enforced. In such an event, you agree that BrushHour shall be entitled, without bond or other security, or proof of damages, to appropriate equitable relief in the event you breach this Agreement, and that the awarding of equitable relief to BrushHour will not limit its ability to receive remedies that are otherwise available to BrushHour under applicable laws. Notwithstanding Section 9.3, you agree that BrushHour shall still be allowed to apply for equitable relief in any jurisdiction.
9.7 Assignment. BrushHour may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign this Agreement without BrushHour’s prior written consent. Your assignment of this Agreement without BrushHour’s prior written consent shall be void.
9.8 Waivers. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches.
9.9 Headings. The division of this Agreement into sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement.
9.10 Questions. Questions about The Service Terms clause and agreement should be addressed via email.
4. Access and Use of the Services
User Accounts.
To use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. Account registration requires you to submit to BrushHour certain personal information, such as your name, address, mobile phone number, and age, as well as at least one valid payment method supported by BrushHour. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by BrushHour in writing, you may only possess one Account.
User Requirements and Conduct.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive service or logistics services from Third Party Providers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances, you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
Referrals and Promotional Codes.
BrushHour may, in its sole discretion, create referral and/or promotional codes ("Promo Codes") that may be redeemed for discounts on future Services and/or a Third Party Provider's services, or other features or benefits related to the Services and/or a Third Party Provider's services, subject to any additional terms that BrushHour establishes. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by BrushHour; (iii) may be disabled by BrushHour at any time for any reason without liability to BrushHour; (iv) may only be used pursuant to the specific terms that BrushHour establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. BrushHour reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that BrushHour determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of BrushHour's Terms.
User-Provided Content.
BrushHour may, in BrushHour's sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to BrushHour through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to BrushHour, you grant BrushHour a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and BrushHour's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents, and releases necessary to grant BrushHour the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor BrushHour's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by BrushHour in its sole discretion, whether or not such material may be protected by law. BrushHour may, but shall not be obligated to, review, monitor, or remove User Content, at BrushHour's sole discretion and at any time and for any reason, without notice to you.
Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. BrushHour does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
5. Payment
You understand that use of the Services may result in charges to you for the services or goods you receive ("Charges"). BrushHour will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, municipal tolls, airport surcharges, or processing fees for split payments. Please visit www.BrushHour.com for further information on your particular location.
As between you and BrushHour, BrushHour reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time at BrushHour's sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. BrushHour will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. BrushHour may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel up to 48 hours prior to Services to the commencement of such Services, in which case you may be charged a cancellation fee on a Third Party Provider’s behalf. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback. BrushHour may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Third Party Providers or other third parties.
In certain cases, with respect to Third-Party Providers, Charges you incur will be owed directly to Third Party Providers, and BrushHour will collect payment of those charges from you, on the Third Party Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as a payment made directly by you to the Third Party Provider. In such cases, you retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods, and Charges you incur will be owed to the Third Party Provider. BrushHour will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good. This payment structure is intended to fully compensate a Third Party Provider, if applicable, for the services or goods obtained in connection with your use of the Services. In all other cases, Charges you incur will be owed and paid directly to BrushHour or its affiliates, where BrushHour is solely liable for any obligations to Third Party Providers. In such cases, you retain the right to request lower Charges from BrushHour for services or goods received by you from a Third Party Provider at the time you receive such services or goods, and BrushHour will respond accordingly to any request from you to modify the Charges for a particular service or good. Except with respect to taxicab service services requested through the Application, BrushHour does not designate any portion of your payment as a tip or gratuity to a Third Party Provider. Any representation by BrushHour (on BrushHour's website, in the Application, or BrushHour's marketing materials) to the effect that tipping is "voluntary," "not required," and/or "included" in the payments you make for services or goods provided is not intended to suggest that BrushHour provides any additional amounts, beyond those described above, to a Third Party Provider you may use. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary.
Repair or Replacement Fees.
You shall be responsible for the cost of repair for damage to, or necessary replacement of, Provider tools and property resulting from use of the Services under your Account in excess of normal "wear and tear" damages and necessary replacement ("Repair or Replacement"). In the event that a Repair or Replacement request is verified by BrushHour in BrushHour's reasonable discretion, BrushHour reserves the right to facilitate payment for the reasonable cost of such Repair or Replacement using your payment method designated in your Account. Such amounts will be transferred by BrushHour to a Third Party Provider, if applicable, and are non-refundable.
6. Electronic Communications
When you visit BrushHour.co or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Website. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Terms and Conditions for BrushHour's Text Message Program
IMPORTANT! PLEASE READ THESE BrushHour's TEXT MESSAGE PROGRAM TERMS AND CONDITIONS CAREFULLY BEFORE SIGNING UP FOR ANY BrushHour'sTEXT MESSAGE PROGRAM. BY SIGNING UP FOR ONE OR MORE OF BrushHour'sTEXT MESSAGE PROGRAMS, YOU AGREE TO ABIDE BY AND BE BOUND TO THESE BrushHour TEXT MESSAGE TERMS AND CONDITIONS.
BrushHour operates marketing and transactional text message programs, which are further described below in detail. The following terms apply to all of the Text Programs: All of the BrushHour'stext message programs and participation in any text message program is also governed by other provisions of these BrushHour Terms & Conditions and Privacy Policy.
By opting into any text message program, you consent to the use of an electronic record to document your Opt-In. To withdraw that consent, request documentation of the Opt-In, or update our records with your contact information, please call (224) 707-0527. These Terms & Conditions still will apply if you withdraw the consent mentioned above or opt-out of each of the text message programs. If you feel comfortable, provide your name or at least the phone number on the voice message system explicitly stating that you would like to opt-out of the BrushHour'sText Message Program.
By signing up for one or more text messaging programs or scheduling on this website, you expressly consent to receive marketing or non-marketing text messages, as applicable, from or on behalf of BrushHour, including but not limited to, text messages made with an automatic telephone dialing system (“autodialer”), at the telephone number(s) that you provide. You may opt-out of these communications at any time. Consent to receive text messages is not a condition of purchasing any property, goods, or services.
Program Description - BrushHour and its service providers may use an autodialer to deliver text messages to you. BrushHour text messages are intended to provide you with marketing and promotional information regarding BrushHour products and services (e.g., appointments and promotions offered by BrushHour or any of its authorized dealers). We may also provide you with transaction-related information.
After joining any of BrushHour's marketing text programs, you may receive text messages regarding special offers, new products, in-store events, shopping cart reminders and other marketing communications related to the applicable program that you joined.
Message Frequency - The number of BrushHour text messages that you receive will vary depending on which BrushHour text messaging programs for which you sign up to receive messages and the frequency of the messages sent by those programs. You will receive a maximum of approximately seven (7) marketing or promotional text messages per week.
Cost - Message and data rates may apply to each text message sent or received in connection with BrushHour text messages, as provided in your mobile telephone service rate plan (please contact your mobile telephone carrier for pricing plans), in addition to any applicable roaming charges. BrushHour does not impose a separate fee for sending BrushHour text messages; however, you are responsible for any fees imposed by your mobile carrier of any kind whatsoever.
How to Opt-In - To opt-in to receive text messages from a BrushHour text messaging program(s), please follow the instructions provided by the specific program from which you wish to receive messages. For example: (i) you may be asked to check an opt-in check box on the collection page where you entered your phone number; (ii) by responding to a prompt to text a keyword as directed to a number; (iii) or by replying in the affirmative in the manner indicated in an initial text message (e.g., Y or Yes).
How to Opt-Out - To stop receiving text messages from a specific BrushHour text messaging program, text STOP to the five-digit short code or phone number for the text messaging program from which you no longer wish to receive messages. You acknowledge that you may then receive one (1) final message from BrushHour confirming your opt-out of that text messaging program. Following such a confirmation message, no additional text messages associated with that program will be sent to you unless you re-activate your subscription. You will remain opted into other BrushHour text messaging programs. You may also indicate your choice to stop receiving promotional text messages from BrushHour by calling (224) 707-0527.
Your Mobile Telephone Number - By completing the opt-in process for any text program, you represent and confirm that you are the account holder for the mobile telephone number(s) that you enroll and that you are authorized to grant BrushHour the right to send text messages to that number. You are responsible for notifying BrushHour immediately if you change your mobile telephone number. You may notify BrushHour of a number change by contacting BrushHour at (224) 707-0527. If you feel comfortable, provide your name or at least the phone number on the voice message system explicitly stating that you would like to change your number in the BrushHour'sText Message Program. If you change your mobile phone number, you agree to opt out of the program prior to changing your mobile number.
You agree to indemnify, defend and hold us harmless from any third-party claims, liability, damages, expenses, and/or costs arising from your use of the program, from you providing us with a phone number that is not your own, or by your failure to notify BrushHour if you change your telephone number or if you do not opt-out your prior telephone number, including but not limited to those arising under the Telephone Consumer Protection Act (“TCPA”).
Access or Delivery to Mobile Network is Not Guaranteed - It is your responsibility to determine if your mobile carrier supports text messaging and if your mobile device is capable of receiving text messages. Your receipt of our text messages is subject to the terms and conditions of your agreement(s) with your mobile carrier.
Delivery of information and content to a mobile device may fail due to a variety of circumstances or conditions. You understand and acknowledge that network services, including but not limited to mobile network services, are outside of BrushHour’s control, and BrushHour is not responsible or liable for issues arising from such network services (e.g., delayed or undelivered messages or the security of any messages).
Carriers are not liable for delayed or undelivered messages.
Support/Help - To request more information, you may contact BrushHour at [email protected].
Eligibility - To receive BrushHour text messages, you must be a resident of the United States and 18 years of age or older.
Changes to Terms and Conditions - BrushHour may revise, modify, or amend these BrushHour'sText Message Program at any time. Any such revision, modification, or amendment shall take effect when it is posted to BrushHour's website at https://BrushHour.co/terms. You agree to review these BrushHour'sText Message Program periodically to ensure that you are aware of any changes. Your continued consent to receive BrushHour text messages will indicate your acceptance of those changes.
Termination of Text Messaging - We may suspend or terminate your receipt of BrushHour text messages if we believe you are in breach of these BrushHour'sText Message Program Terms and Conditions. Your receipt of BrushHour text messages is also subject to termination in the event that your mobile telephone service terminates or lapses. BrushHour reserves the right to modify or discontinue, temporarily or permanently, all or any part of any BrushHour'sText Message Program, with or without notice.
7. Disclaimers; Limitation of Liability; Indemnity.
DISCLAIMER.
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." BrushHour DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, BrushHour MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. BrushHour DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY, OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY.
BrushHour SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF BrushHour, EVEN IF BrushHour HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BrushHour SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY, OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF BrushHour HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BrushHour SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND BrushHour'S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS PROVIDING SERVICE SERVICES REQUESTED THROUGH SOME REQUEST PRODUCTS MAY OFFER PEER-TO-PEER SERVICE SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED, CERTIFIED, OR PERMITTED BY OR THROUGH THE BrushHour PLATFORM.
THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE SERVICE, GOODS, OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT BrushHour HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICE, GOODS, OR LOGISTICS SERVICES PROVIDED TO YOU BY THIRD-PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, BrushHour'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON BrushHour'S CHOICE OF LAW PROVISION SET FORTH BELOW.
Indemnity.
You agree to indemnify and hold BrushHour and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) BrushHour's use of your User Content; or (iv) your violation of the rights of any third party, including Third-Party Providers.
8. Other Provisions
Choice of Law.
These Terms are governed by and construed in accordance with the laws of the State of Wyoming, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Wyoming to assert claims under Wyoming law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of Wyoming law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Wyoming law to you if you do not otherwise reside in Wyoming. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or any arbitrable disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.
Claims of Copyright Infringement.
Claims of copyright infringement should be sent to BrushHour's designated agent. Please contact us at [email protected] for the designated address and additional information.
Notice.
BrushHour may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first-class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to BrushHour, with such notice deemed given when received by BrushHour, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o BrushHour Systems, LLC. The name and current contact information for the registered agent in each state are available online.
General.
You may not assign these Terms without BrushHour's prior written approval. BrushHour may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of BrushHour's equity, business, or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, BrushHour, or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. BrushHour's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BrushHour in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.
Deactivation. You consent to and we may temporarily deactivate your account without notice to investigate whether you have engaged in, or your account has been used in, an activity that is deceptive, fraudulent, unsafe, illegal, harmful to our brand, business or reputation, or that violates this Agreement (including the policies incorporated herein by reference)(any of the foregoing, a “ Material Breach or Violation ”). You also consent to and we may terminate this Agreement or permanently deactivate your account without notice if we determine in our discretion that a Material Breach or Violation has occurred.
Effect of Termination and Survival. Upon termination, each party will remain responsible for its respective liabilities or obligations that accrued before or as a result of such termination. Once the Agreement is terminated you will no longer access our Platform to schedule service(s). Sections 1, 2, 4, 5, 6-9, 12, and 13 shall survive any termination or expiration of this Agreement.
8.1. Information
We may collect and disclose information from or about you when you create an account, interact with our Platform, or schedule service(s) and as otherwise described in our Privacy Policy. Notwithstanding anything herein to the contrary (a) the collection, use, and disclosure of such information will be made in accordance with our Privacy Policy and (b) if you elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with, or related to, us or our Platform, we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner.
8.2. Confidentiality
8.2.1. Confidential Information. Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party or third parties (“ Confidential Information ”). Confidential Information includes User Information and the volume of car wash and detail services, marketing, and business plans, business, financial, technical, operational, and such other, non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential. Confidential Information does not include any information that: (a) was in the receiving party’s lawful possession prior to the disclosure, as clearly and convincingly
corroborated by written records, and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (b) is lawfully disclosed to the receiving party by a third party without actual, implied or intended restriction on disclosure through the chain of possession, or (c) is independently developed by the receiving party without the use of or access to the Confidential Information, as clearly and convincingly corroborated by written records.
8.3. Obligations.
Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third-party, except to its employees, officers, contractors, agents and service providers (" Permitted Persons ") as necessary to perform their obligations under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party; subject to applicable law and our internal record-keeping requirements.
8.4. Remedies.
The unauthorized use or disclosure of any Confidential Information would cause irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, the parties have the right to obtain immediate equitable relief to enjoin any unauthorized use or disclosure of Confidential Information disclosed by the other party, in addition to any other rights or remedies described in Section 13, applicable law or otherwise.
8.5. Intellectual Property
We reserve all rights not expressly granted in this Agreement. The Scheduler Web App / App / Website, our Platform, and all data gathered through our Platform, including all intellectual property rights therein (the “ Platform IP ”), are and remain our property and/or that of our licensors, as applicable. Neither this Agreement nor your use of BrushHour’s or our licensors’ company names, logos, products or service names, trademarks, service marks, trade dress, other indicia of ownership, or copyrights ('' BrushHour Names, Marks, or Works ”) or the Platform IP conveys or grants to you any rights in or related to the Platform IP, or related intellectual property rights, including
BrushHour’s Names, Marks, or Works, except for the limited license granted above. You shall not, and shall not allow any other party to: (a) license, sublicense, copy, modify, distribute, create, sell, resell, transfer, or lease any part of the Platform IP or Authorized BrushHour-Branded Materials; (b) reverse engineer or attempt to extract the source code of our software, except as allowed under law; (c) use, display, or manipulate any of BrushHour Names, Marks, or Works for any purpose other than to to schedule service(s); (d) create or register any (i) businesses, (ii) URLs, (iii) domain names, (iv) software application names or titles, or (v) social media handles or profiles that include BrushHour Names, Marks, or Works or any confusingly or substantially similar mark, name, title, or work; (e) use BrushHour Names, Marks, or Works as your social media profile picture or wallpaper; (f) purchase keywords (including, but not limited to Google AdWords) that contain any BrushHour Names, Marks, or Works; (g) apply to register, reference, use, copy, and/or claim ownership in BrushHour’s Names, Marks, or Works, or in any confusingly or substantially similar name, mark, title, or work, in any manner for any purposes, alone or in combination with other letters, punctuation, words, symbols, designs, and/or any creative works, except as may be permitted in the limited license granted above; (h) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any part of our Platform or data; or (i) aggregate our data with competitors’.
8.6. Third-Party Services
From time to time we may permit third parties to offer their services to users of our Platform. Third-party services may be subject to additional terms (including pricing) that apply between you and the party(ies) providing such services. If you choose to access the third-party services you understand that the providers of the third-party services are solely responsible for liabilities arising in connection with the access and use of such third party services. While we may allow users to access such services through our Platform and we may collect information about our users’ use of such services, we may not investigate, monitor, or check such third-party services for accuracy or completeness.
8.7. Miscellaneous
8.7(a) Modification. You will only be bound by modifications or supplements to this MSA on your acceptance, but if you do not agree to them, you may not be allowed to access our Platform. Such modifications or supplements may be provided to you only via electronic means.
From time to time we may modify information hyperlinked in this MSA (or the addresses where such information may be found) and such modifications shall be effective when posted.
8.7(b) Severability.
The invalidity of any provision of this Agreement does not affect the rest of this Agreement. The parties shall replace the invalid or non-binding provision with provision(s) that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
8.7(c). Assignment.
We may freely assign or transfer this Agreement or any of our rights or obligations in them, in whole or in part, without your prior consent. You agree not to assign this Agreement, in whole or in part, without our prior written consent, and any attempted assignment without such consent is void.
8.7(d) Conflicts.
Except with respect to the Arbitration Provision, if there is a conflict between this MSA and any supplemental terms between you and us, those supplemental terms will prevail with respect to the specific conflict if explicitly provided therein, and is in addition to, and a part of, this Agreement.
8.8. Interpretation.
In this Agreement, “ including ” and “ include ” mean “ including, but not limited to .”
8.9. Notice.
Except as explicitly stated otherwise, any notices to us shall be given by certified mail, postage prepaid, and return receipt requested to BrushHour, PO Box #1665 Chicago, IL 60690 , Attn: Legal (P&C). All notices to you may be provided electronically including through our Platform or by other means.
8.10. Governing Law.
Except as specifically provided in this MSA, this MSA is governed by the State of Wyoming. The Governing Law shall apply without reference to the choice-of-law principles that would result in the application of the laws of a different jurisdiction.
8.11. Entire Agreement.
Except as specifically set forth in Section 12.4 or the Arbitration Provision, this Agreement constitutes the entire agreement and understanding with respect to the subject matter expressly contemplated herein and therein, and supersedes all prior or contemporaneous agreements or undertakings on this subject matter.
7.12. No Incorporation.
Notwithstanding anything herein to the contrary, no agreement, term, or other provision relating to your indemnification obligations to us will be considered incorporated by reference, or otherwise a part of, this Agreement.
8.13. Existing Documents.
Defined terms in documents accepted in connection with your acceptance of this Agreement that reference a Technology Services Agreement shall be deemed amended to reference analogous terms defined in this Agreement, including by replacing the term “Technology Services Agreement” with “Platform Access Agreement”.
8.14. Arbitration Provision
IN THE EVENT OF ANY DISPUTE (OTHER THAN ONE FILED IN A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS, OR AS SET FORTH IN SECTION 9.6) BETWEEN YOU AND BrushHour (“BrushHour” AS USED IN THIS PROVISION MEANS BrushHour, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS), YOU AND BrushHour CONSENT TO ARBITRATE THAT DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN-CURRENT RULES OF THE AMERICAN ARBITRATION ASSOCIATION RATHER THAN LITIGATE THE DISPUTE IN COURT. YOU AND BrushHour ALSO AGREE THAT THE FEDERAL ARBITRATION ACT GOVERNS THE ARBITRABILITY OF ALL DISPUTES BETWEEN YOU AND BrushHour. IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY BrushHour IN WRITING, BY MAIL TO BrushHour AT PO BOX #1665 Chicago, IL 60604, WITHIN 30 DAYS OF THE EFFECTIVE DATE, STATING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH BrushHour BY ARBITRATION. IN ADDITION, YOU AGREE NOT TO PARTICIPATE IN A CLASS ACTION, A CLASS-WIDE ARBITRATION, CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT IF BrushHour IS A PARTY TO THE PROCEEDING. THE ARBITRATOR SHALL INTERPRET AND DETERMINE THE VALIDITY OF THE ARBITRATION PROVISION, INCLUDING ANY ALLEGED UNCONSCIONABILITY.
