Last updated December 19, 2022
These Terms are entered into by and between you (“you” or “user”) and BRIGHTSWIPE, Inc., a Delaware corporation (“BRIGHTSWIPE,” “we,” or “us”). Please read this Agreement carefully. This is a legal contract between you and BRIGHTSWIPE.
WE ASK THAT YOU KINDLY CLOSELY REVIEW THESE TERMS, INCLUDING THE DISPUTE RESOLUTION PROVISIONS, FCRA RESTRICTIONS, AND OTHER USE RESTRICTIONS SET FORTH BELOW BEFORE YOU USE, ACCESS, OR PURCHASE ANY ITEM ON THE App, ANY OTHER AFFILIATED MOBILE APPLICATION, OUR WEBSITE, OR ANY PLATFORM THAT LINKS TO AND/OR UTILIZES THESE TERMS (ALL SUCH PLATFORMS ARE COLLECTIVELY REFERRED TO AS THE “App”).
Please note that, among other items, these terms contain an arbitration agreement and a class action waiver giving up a right to a court hearing or jury trial or to participate in class action litigation. Arbitration is mandatory and is the exclusive remedy for any and all disputes unless specified below. Please carefully review the dispute resolution section below.
BECAUSE THIS IS A LEGAL CONTRACT, IT IS STRONGLY RECOMMENDED THAT YOU REVIEW THESE TERMS IN THEIR ENTIRETY BEFORE ACCESSING, USING, OR BUYING ANYTHING THROUGH THE App. YOU ACCEPT THE TERMS IN FULL IF YOU ACCESS OR USE THE App OR MAKE A PURCHASE ON THE App. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE App, DO NOT PROVIDE ANY INFORMATION TO THE App, AND DO NOT PURCHASE ANY SERVICE ON THE App.
We may change these Terms, in whole or in part, at any time. Posting of the updated Terms on the App and at www.brightswipe.com will constitute notice to you of any such changes, although we may choose other types of notice for certain changes. Changes will become effective upon notice. Your continued use of the App shall constitute your acceptance of all changes, and each use of the App or Services constitutes your reaffirmation of your acceptance of these Terms.
- Introduction and FCRA Prohibited Uses
The App provides access to certain specific information derived from databases of aggregated publicly available sources of information. Such public information includes government and court records, real estate listings, business websites, social networks, and other similar public sources (“Public Information”). Our App is intended solely for personal individual use and not any business use. Specifically, when purchased, the App services (the “Services”) enable a user to search for and receive certain Public Information as aggregated by us and/or our licensors (the “Material”) in an effort to learn certain potentially relevant information – or the absence thereof – about one’s acquaintance or online date (each a “BrightSwipe Inquiry”). Our objective is to help an individual user approach new personal relationships with greater information and potentially a measure of enhanced personal safety.
Accordingly, we are not a Consumer Reporting Agency as defined by the Fair Credit Reporting Act codified at 15 U.S.C. §1681 et seq. (“FCRA”). The Material we provide is not collected or made available for the purpose of furnishing consumer reports, as defined by FCRA. As a result, the additional protections afforded to consumers in connection with FCRA transactions, and obligations placed upon credit reporting agencies, are neither contemplated by nor reflected within these Terms.
This means that App Services and any Materials you obtain from us in connection with a Brightswipe Inquiry may not serve (and you agree they will not be used by you) as a factor in: (i) establishing an individual’s eligibility for personal credit, loans, insurance, or assessing risks associated with existing consumer credit obligations; (ii) evaluating an individual for employment, promotion, reassignment, or retention (including employment of household workers such as babysitters, cleaning personnel, nannies, contractors, and other individuals); (iii) evaluating an individual for educational opportunities, scholarships, or fellowships; (iv) evaluating an individual’s eligibility for a license or other benefit granted by a government agency; or (v) any other product, service, or transaction in connection with which a consumer report may be used under FCRA or any similar state statute, including, without limitation, apartment rental, check-cashing, or any other consumer business transaction.
You therefore acknowledge and agree you will not use any Material obtained from Brightswipe or its App Services in connection with BrightSwipe Inquiries for any purpose related to:
- Health insurance or any other insurance
- Personal Credit or loans
- Education, scholarships, or fellowships
- Housing or other accommodations
- Benefits, privileges, or services provided by any business to any consumer
You agree to use the Material you obtain with respect to a BrightSwipe Inquiry solely for your personal dating and social purposes.
The App and Services are intended only for adults permanently residing in the United States. Each user must be at least eighteen (18) years of age and must be the age of majority (minimum age to enter into a legally binding contract) in the state or territory of the United States in which he or she is a legal resident and/or resides.
Use of our Services is prohibited by anyone who is less than eighteen (18) years of age or otherwise legally a minor under applicable law.
The age of majority in the United States is eighteen (18) in all states except Alabama, Nebraska, and Mississippi, and the territory of Puerto Rico. The age of majority is nineteen (19) in Nebraska and Alabama and twenty-one (21) in Mississippi and Puerto Rico.
By installing, accessing, or using this APP, each user expressly agrees, acknowledges, and warrants to us that he or she:
- Permanently resides in a state or territory of the United States
- Is at least eighteen (18) years old and of the age of majority in the state or territory where he or she lives.
If you do not meet these criteria, do not use our APP and do not purchase any Service. We reserve the right to limit the Service’s availability, in whole or in part, to any person, geographic area, or jurisdiction that we choose.
Each user agrees not to access our Services from Internet Protocol (IP) addresses located outside of the United States and its territories. And, regardless of the foregoing, each user further agrees that (i) our BrightSwipe Inquiry Services are provided to it in the United States at the point at which inquires access our (or our supplier’s) server facilities; and (ii) we make no representation regarding the legality of accessing such Services from outside of the United States and its territories.
- Mandatory Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. TO THE EXTENT PERMITTED BY LAW, BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL.
Agreement to Arbitrate
- a) Disputes Subject to Arbitration. BRIGHTSWIPE and you agree to arbitrate all disputes and claims between us, including, but not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory;
- Claims that arose before this or any prior agreement between us (including, but not limited to, claims relating to advertising or disclosures); and
- Claims that may arise after the termination of this agreement.
Notwithstanding the foregoing, either party may bring an individual action in small claims court, provided that it seeks relief that does not affect other customers.
Any dispute as to the arbitrability of claims or the scope or enforceability of this arbitration provision, or as to the interpretation of paragraph 3.(e) below, is for the court to decide. These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of the agreement between us.
- b) Starting the Dispute-Resolution Process. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to BRIGHTSWIPE should be addressed to: Legal Dept., Brightswipe, Inc., 1451 W. Cypress Creek Road, Suite 300, Fort Lauderdale Fl, 33309 (“Notice Address”). The Notice must (i) provide your mailing address, phone number, and account name (if any); (ii) describe the nature and basis of the claim or dispute; and (iii) set forth the specific relief sought (“Demand”). If BRIGHTSWIPE and you do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or BRIGHTSWIPE may commence an arbitration proceeding with the American Arbitration Association (“AAA”).
- c) Costs of Arbitration. BRIGHTSWIPE will pay all AAA filing, administration, and arbitrator fees for any arbitration we initiate. The payment of those fees for any arbitration that you initiate will be governed by the AAA Rules. The filing fee currently is $125 for claims for up to $10,000 in damages but is subject to change by the AAA. However, if you initiate an arbitration in accordance with the notice requirements of paragraph 3.(b) and are seeking relief valued at $300 or less (both to you and us), BRIGHTSWIPE will pay all AAA filing, administration, and arbitrator fees. If your claim is for greater than $300 but less than $10,000, BRIGHTSWIPE will pay all such fees in excess of $20. After BRIGHTSWIPE receives notice at the Notice Address that you have commenced such an arbitration, BRIGHTSWIPE will promptly reimburse you for any portion of the filing fee that you paid that BRIGHTSWIPE has agreed to pay.
If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA filing, administration, and arbitrator fees shall be governed by the AAA Rules, and you agree to reimburse us for any amounts we have paid on your behalf to the AAA.
- d) Arbitration Procedures. The arbitrator shall be bound by the terms of this arbitration provision. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this arbitration provision. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The AAA shall administer the arbitration. If the AAA is unavailable, the arbitration will be administered by another arbitration provider that the parties agree to or that the court selects.
Unless BRIGHTSWIPE and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your residence at the time of the filing of the Demand. If you bring a claim for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
Arbitrators may consider but shall not be bound by rulings in prior arbitrations involving different customers. Arbitrators shall be bound by rulings in prior arbitrations involving the same customer to the extent required by applicable law.
Unless the parties agree otherwise, you and we must bring all directly related claims in a single arbitration proceeding. If you or we later initiate a subsequent arbitration asserting claims that are directly related to ones that were raised in a prior arbitration between the same parties, the AAA or the arbitrator shall either (i) consolidate the subsequent arbitration with the earlier proceeding if it is ongoing or (ii) dismiss any claims raised in the subsequent arbitration that would be barred by applicable law if brought in court.
Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Although under some laws BRIGHTSWIPE may have a right to an award of attorneys’ fees and expenses if it prevails in an arbitration, BRIGHTSWIPE agrees that it will not seek such an award unless you are represented by an attorney and the arbitrator has determined that your claim is frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)).
- e) Prohibition of Class or Representative Actions and Non-Individualized Relief. YOU AND BRIGHTSWIPE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLASS MEMBER, OR PARTICIPANT IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and BRIGHTSWIPE agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class, representative, or private attorney general proceeding. The arbitrator may award any relief that a court could award, so long as the relief is individualized to the claimant and would not affect other BRIGHTSWIPE users. Neither you nor we may seek non-individualized relief that would affect other BRIGHTSWIPE users. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
- f) 30-Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to infosec@BRIGHTSWIPE.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within the later of 30 days of your first use of the Service or within 30 days of changes to this section being announced on the App and at brightswipe.com. Otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, BRIGHTSWIPE also will not be bound by them.
- g) Changes to This Arbitration Section. BRIGHTSWIPE will provide thirty (30) days’ notice of any changes to this section by posting on the App and at brightswipe.com. Amendments will become effective thirty (30) days after they are posted on the Service and Site or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Service and Site.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, (A) A REPRESENTATIVE ACTION FOR PUBLIC INJUNCTIVE RELIEF PURSUANT TO CALIFORNIA’S CONSUMER LEGAL REMEDIES ACT (CAL. CIV. CODE § 1750 ET SEQ.), UNFAIR COMPLETION LAW (CAL. BUS. & PROF. CODE § 17200 ET SEQ.) AND/OR FALSE ADVERTISING LAW (CAL. BUS. & PROF. CODE § 17500 ET SEQ.) MUST BE ARBITRATED ON A CLASS BASIS, (B) IN THE EVENT THAT THE FOREGOING CLAUSE IS DEEMED INVALID OR UNENFORCEABLE, A REPRESENTATIVE ACTION FOR PUBLIC INJUNCTIVE RELIEF PURSUANT TO CALIFORNIA’S CONSUMER LEGAL REMEDIES ACT (CAL. CIV. CODE § 1750 ET SEQ.), UNFAIR COMPLETION LAW (CAL. BUS. & PROF. CODE § 17200 ET SEQ.) AND/OR FALSE ADVERTISING LAW (CAL. BUS. & PROF. CODE § 17500 ET SEQ.) MAY BE BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN CALIFORNIA ON A CLASS BASIS, AND (C) ANY CLAIMS OTHER THAN FOR PUBLIC INJUNCTIVE RELIEF MUST BE ARBITRATED ON AN INDIVIDUAL, NON-CLASS BASIS AS OTHERWISE SET FORTH IN THIS SECTION.
- Scope, License Grant, Restrictions, Electronic Signature
These Terms govern your use and access of the App and the Material we make available, your purchase of any App Services, and your use of any Brightswipe Inquiry provided to you.
Subject to your compliance with these Terms and their limitations, BRIGHTSWIPE grants you a non-exclusive, non-transferable, revocable, and limited license for individual and personal (meaning nonbusiness) use, and we provide such access and use of the App, and, as applicable, its Material and Brightswipe Inquiries, to you only. You acknowledge and agree that BRIGHTSWIPE may terminate this license at any time for any reason. You further acknowledge and agree that with respect to this limited license, Brightswipe transfers no ownership or intellectual property interest or title in and to the App, Materials, BRIGHTSWIPE Inquiries (or copies thereof), or its Services to you or anyone else under these Terms.
When you use the App to purchase a BRIGHTSWIPE Inquiry, we grant you a limited license to use the Service and any Material reported thereby solely for your own individual, personal purposes. You agree not to use the Brightswipe Inquiry Service for any commercial, collections, advertising, or marketing purposes, nor shall you publish, distribute, resell, or broker any such Services or resulting Materials to or for any third party. You shall not use our Material or the Brightswipe Inquiry Service to provide data aggregation, processing, or evaluation services to or for third parties.
You agree not to disrupt, modify, or interfere with the App or its associated software, hardware, and servers in any way. You are prohibited from scraping, crawling, data mining, or using any robot, spider, or other automatic device to send queries to BRIGHTSWIPE’s servers. You agree not to impede or interfere with others’ use of the App.
You may not use the App, our Services, or any Material acquired from us:
- to engage in activities that would violate applicable local, state, national or international law, or any regulations having the force of law, including the laws, regulations, and ordinances of any jurisdiction from which you access BRIGHTSWIPE.com
- to evaluate a consumer’s eligibility for credit or insurance to be used primarily for personal, family, or household purposes; to evaluate a person’s eligibility for employment or volunteering purposes; to evaluate a person’s eligibility for a government license or benefit; to evaluate a person for renting a dwelling property; or for any other purpose specified in FCRA or similar state statutes
- to commit a crime or to harass an individual or his or her family
- to seek information about celebrities or public figures
- in any manner that may violate any local, state, federal, or international privacy law to which you may be subject on the basis of your location, or the location of the person searched. You agree not to search for, or submit to BRIGHTSWIPE, information relating to persons that reside outside of the United States.
You acknowledge and agree that you (i) have read, understand, and agree to be bound by these Terms in their entirety, including, without limitation, the restrictions that apply to your agreed use of the App and any resulting Material; and (ii) consent to the use of electronic signatures, contracts, orders and other records, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the App.
- Information Available through the App
BRIGHTSWIPE does not verify the Public Information it reports as Material with respect to a BRIGHTSWIPE Inquiry. We obtain Public Information from third-party data providers. Due to the nature of Public Information, the public records and commercially available data sources used in the BRIGHTSWIPE Inquiry Service may contain errors. Source data which comprises the Public Information is sometimes reported or entered inaccurately, processed poorly or incorrectly, and is generally not free from defect. Our BRIGHTSWIPE Inquiry Material is not the source of data, nor is such Material a comprehensive compilation of all Public Information source data.
We further do not evaluate each piece of information provided to you as Material and make no guarantees to users about the accuracy, legitimacy, or legality of any information or how recently any information was collected or updated. As a user of our App Services, you agree that there are no warranties or guarantees whatsoever regarding the Material and information provided. Further, you agree to rely on the information and Material available through our App Services at your own risk.
The Material we report as a BRIGHTSWIPE Inquiry is not intended to report arrests – only felony convictions and certain other types of criminal convictions derived from the Public Information we receive which, in our best judgment, may be of general relevance to users’ assessment when considering an online date. While we endeavor to provide you up to date information, certain inaccuracies may exist, and certain records we intend to include may be omitted. We cannot guarantee the accuracy of the Material reported or that all potentially relevant information is reported in connection with a BRIGHTSWIPE Inquiry. BRIGHTSWIPE shall not be liable for any errors or omissions in Material reported.
BRIGHTSWIPE does not allow individuals to opt-out (i.e., suppress display) of conviction records which pertain to them, unless an Order of Expunction, Expungement, or Sealing is provided. You may email a copy of any such Order to firstname.lastname@example.org. We will only suppress or delete only those records specifically noted in the Order.
- Proprietary Rights
The proprietary rights to all Material, and all text, graphics, interfaces, images, artwork, computer code (including html code), software, services, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the App, unless otherwise expressly indicated in writing, are owned, controlled, and licensed exclusively by BRIGHTSWIPE and/or its suppliers and are protected by United States and foreign laws including, but not limited to, United States copyright, trade secret, patent, and trademark law, as well as other state, national, and international laws and regulations. Except as expressly provided in these Terms, BRIGHTSWIPE does not grant any express or implied intellectual property or proprietary right to you or any other person.
The “BrightSwipe©” name and logo as well as all custom graphics and service names are trademarks of BRIGHTSWIPE and these and all other rights are reserved. All other trademarks are the property of their respective owners.
BRIGHTSWIPE reserves any and all rights not explicitly granted in these Terms. By using the App, you do not acquire any ownership rights to the App, the App Services, content, or any information or Material obtained therefrom.
BRIGHTSWIPE welcomes your suggestions and feedback on how to improve our App and Services, including the BRIGHTSWIPE INQUIRY. By submitting any suggestions, ideas, concepts, content, or other feedback (collectively, “feedback”), you represent and warrant that any such feedback you may provide does not infringe, misappropriate, and/or violate the intellectual property or proprietary rights of any person or entity, and that you have all rights necessary to convey such feedback to us.
You acknowledge and agree that by providing us with feedback, you grant BRIGHTSWIPE a perpetual, royalty-free, irrevocable, transferable, sublicensable, fully paid up non-exclusive right and license to adopt, publish, reproduce, distribute, copy, use, create derivative works, commercialize, retain, and display or otherwise use worldwide (in whole or in part, in any form, media or technology now known or later developed) any such feedback you submit, directly or indirectly (including through the App), to BRIGHTSWIPE, without any obligation by BRIGHTSWIPE to notify, approve, identify or compensate you or anyone else, and you hereby expressly waive any claim to the contrary.
You acknowledge that when you provide us with any contact information with respect to the App or a Service, including an email address or mobile number (“Contact Information”), you agree that this constitutes a purchase or, as applicable, an inquiry establishing a business relationship with us. You consent to our communicating with you about our Services using the Contact Information you provide. This means by providing your email address, you may, from time to time, receive email from us about use or features of the App. And, by providing your mobile number, you may receive text (SMS) messages from us with respect to our Services.
- Username and Password
You may be required to register a username and generate a password prior to obtaining access to an App Service. If required to register, you acknowledge and agree that:
- you will provide, if requested to register, complete and accurate information about you and your account
- you are responsible for maintaining the security and confidentiality of your username and password (“Account”)
- you will not disclose your username and password to others
- you will not use anyone else’s username and password or seek to access another’s account
- you will promptly notify us of any unauthorized use of your account – actual or only suspected.
If you violate any of these provisions, you agree that you, and not BRIGHTSWIPE, are responsible for any actions that occur through your Account, whether or not taken by you, including any loss arising from someone else using your Account, with or without your knowledge.
- Service Orders
All orders for a Service placed through the App are subject to our acceptance. After an order is placed, we will email or text (SMS) message you confirming receipt and, if your order is accepted, confirming acceptance (unless you have opted out of such communications). We may refuse to accept or may cancel any order, confirmed or not, for any or no reason, and without liability to you. If your payment card or payment method has already been charged for an order that is later canceled by BRIGHTSWIPE, we will issue a refund.
By ordering an App Service, including a BRIGHTSWIPE Inquiry, you authorize BRIGHTSWIPE to charge the debit, credit card, or prepaid card you provide during checkout the price for the applicable Service shown on the App together with any applicable sale tax thereon in the state where you reside. All orders are payable in U.S. dollars. If you have any questions about the corresponding subject line or descriptor on your credit card or bank statement, please contact our customer service department at [888-794-7360].
BRIGHTSWIPE does not store or process your full credit or debit card information. Instead, we employ independent and reputable third-party payment processors to store and process this information. We may update your payment method with information provided by the applicable payment processor. Meanwhile, you authorize BRIGHTSWIPE to continue to charge the updated payment method.
- Billing Errors
If you believe that you have been erroneously billed, please notify our Customer Service Department promptly at [888- 794-7360 – email@example.com].
- Treatment of Chargebacks and Reversals
Intentional credit and debit card chargebacks and reversals are, unfortunately, often indicators of a user’s possible fraudulent use of an online service or theft of product from an online vendor. This observation can apply to the fraudulent use of our Services and theft of BRIGHTSWIPE Inquiry Material. We reserve the right to treat reversals and chargebacks as such. We may investigate, file a complaint with the appropriate local, state, or federal authorities requesting that they investigate, or both. Please know that we do monitor certain Internet Protocol address information and user activity, and information so derived may be used in civil or criminal proceedings against a user where it appears fraud or theft may have occurred.
- Disclaimer of Warranties
YOU USE THE BRIGHTSWIPE App AND SERVICES AT YOUR SOLE RISK (INCLUDING BUT NOT LIMITED TO ANY DAMAGE RESULTING FROM RELIANCE ON INFORMATION OR MATERIAL FROM BRIGHTSWIPE, OR OTHER DAMAGES THAT RESULT FROM OBTAINING ANY MATERIAL FROM THE App) EVEN IF BRIGHTSWIPE HAS BEEN ADVISED OF OR IS AWARE OF THE RISK OF SUCH DAMAGE. TO THE EXTENT PERMITTED BY LAW, BRIGHTSWIPE PROVIDES THE App, THE SERVICES, THE INFORMATION AND MATERIAL “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND, AND BRIGHSWIPE, ON ITS OWN BEHALF AND THAT OF ITS THIRD PARTY DATA PROVIDERS, SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT.
NO INFORMATION OR MATERIAL PROVIDED ON OR THROUGH THE App, BY BRIGHTSWIPE, OR BY BRIGHTSWIPE’S EMPLOYEES OR AGENTS, SHALL CREATE ANY WARRANTY.
BRIGHTSWIPE MAKES NO WARRANTY, REPRESENTATION, COVENANT, OR GUARANTEE WHATSOEVER, EXPRESS OR IMPLIED:
- i) AS TO THE VALUE, QUALITY, TIMELINESS, USEFULNESS, RELIABILITY, SECURITY, SUITABILITY, TRUTHFULNESS, OR COMPLETENESS OF THE App, THE SERVICES, THE INFORMATION, OR THE MATERIAL
- ii) THAT THE App, THE SERVICES, THE INFORMATION, OR MATERIAL WILL MEET YOUR NEEDS OR EXPECTATIONS
iii) THAT THE App WILL OPERATE UNINTERRUPTED OR ERROR-FREE
- iv) AS TO THE QUALITY OR VALUE OF ANY OF BRIGHTSWIPE’S PRODUCTS, SERVICES, MATERIAL, OR OTHER INFORMATION YOU PURCHASE OR OBTAIN VIA THE App
- v) THAT ANY ERRORS ON THE App OR IN THE MATERIAL WILL BE CORRECTED
THE REPRESENTATION AND WARRANTY DISCLAIMERS DESCRIBED ABOVE ARE INAPPLICABLE WHERE PROHIBITED IN SOME JURISDICTIONS BY LAW.
- Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT IN EXCHANGE FOR THE FEES BRIGHTSWIPE CHARGES FOR ITS App SERVICES, AND TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER BRIGHTSWIPE, NOR ITS AFFILIATES, NOR ANY BRIGHTSWIPE THIRD-PARTY DATA PROVIDER (WHICH, FOR PURPOSES OF THIS SECTION 15 AND SECTION 16 [INDEMNIFICATION], BELOW, BRIGHTSWIPE, ITS AFFILIATES, AND ITS THIRD-PARTY DATA PROVIDERS ARE REFERRED TO, COLLECTIVELY, AS THE “BRIGHTSWIPE PARTIES”) SHALL BE LIABLE TO YOU (OR TO ANY PERSON CLAIMING THROUGH YOU) OR ANY THIRD PARTY FOR ANY AND ALL DAMAGES (DIRECT, INDIRECT, GENERAL, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY) IN CONNECTION WITH:
(I) ANY PERSONAL INJURY CAUSED IN WHOLE OR IN PART BY ANY BRIGHTSWIPE PARTIES’ NEGLIGENT ACTS OR OMISSIONS (BUT NOT WILLFUL MISCONDUCT) OR BREACH OF CONTRACT IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING, OR DELIVERING MATERIAL (OR FAILURE TO DO ANY OF THE FOREGOING) OR IN THE MANNER OF OPERATION OF THE App SERVICES, INCLUDING, WITHOUT LIMITATION, THE BRIGHTSWIPE INQUIRY SERVICE;
(II) YOUR THE INABILITY TO USE, OR UNAVAILABILITY OF, THE App, ITS ANY OF ITS SERVICES, INCLUDING, WITHOUT LIMITATION, THE BRIGHTSWIPE INQUIRY SERVICE;
(III) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES RESULTING FROM ANY FAILURE OF PRODUCTS, SERVICES, LOSS OF DATA, INFORMATION, AND OR MATERIAL PURCHASED OR OBTAINED FROM OR THROUGH THE App; AND
(IV) UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OF, OR UNAUTHORIZED USE OF YOUR PERSONALLY IDENTIFIABLE INFORMATION REGARDLESS OF WHETHER CAUSED IN WHOLE OR IN PART BY ANY BRIGHTSWIPE PARTIES’ NEGLIGENT ACTS OR OMISSIONS (BUT NOT WILLFUL MISCONDUCT) OR BREACH OF CONTRACT.
THE LIMITATION OF LIABILITY IN THIS SECTION 15 APPLIES REGARDLESS OF WHETHER THE LEGAL THEORY CONCERNING THE ALLEGED DAMAGES IS ACTIONABLE IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), UNDER STATUTE, OR OTHERWISE.
IF APPLICABLE LAW DOES NOT PERMIT ANY SUCH LIMITATION OF LIABILITY AS SET FORTH ABOVE, AND IN EVERY OTHER CIRCUMSTANCE NOT EXPRESSLY ADDRESSED AT SUBPARTS (I) THROUGH (IV) ABOVE, THE MAXIMUM AGGREGATED LIABILITY OF THE BRIGHTSWIPE PARTIES TO YOU UNDER ANY AND ALL CIRCUMSTANCES AND CLAIMS WILL BE ONE-HUNDRED DOLLARS ($100.00).
NO ACTION, REGARDLESS OF FORM, ARISING OUT OF YOUR USE THIS App OR ANY SERVICE, INCLUDING THE BRIGHTSWIPE INQUIRY SERVICE, MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION.
THE NEGATION OR OTHER LIMITATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND BRIGHTSWIPE. ACCESS TO THE App AND THE SERVICES OFFERED THROUGH THE App WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. [click here for Legal Notice to New Jersey Residents]
To the fullest extent allowed by law, you agree to defend, indemnify, and hold the BRIGHTSWIPE Parties, and each of them, harmless from any liability, claim, expense, or demand, including attorneys’ fees and costs, made by any third party in connection with or arising out of your use of the App, your violation of any terms of these Terms, your violation of applicable laws, or your violation of any rights of another person or entity.
BRIGHTSWIPE reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, which shall not excuse your obligation to indemnify BRIGHTSWIPE. In any case, you shall not settle any dispute subject to your indemnification under these Terms without written consent from BRIGHTSWIPE.
BRIGHTSWIPE may assign the contract by these Terms at any time without notice to you. You may not assign this contract to anyone else, and any attempt to assign shall be void.
- Digital Millennium Copyright Act (“DMCA”) Notice
BRIGHTSWIPE respects the copyright and intellectual property rights of others. It is our policy not to permit content on our App known by us to infringe another party’s copyright to remain on the Service.
If you believe any content on the App infringes a copyright or other intellectual property right, we ask that you provide us with written notice that at a minimum contains:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
All DMCA notices should be sent to our designated agent as follows:
DMCA Takedown Agent
1451 W. Cypress Creek Road, Suite 300
Fort Lauderdale Fl, 33309
- b) Governing Law; Jurisdiction; Attorneys’ Fees. The App (excluding links, if any, to third party sites or services) are controlled by us from our office in Florida. As each state has laws and regulations that may differ from those of Florida, by accessing the App or purchasing Services, or otherwise using the Services, you and BRIGHTSWIPE agree that the laws of Florida (excluding its conflicts of laws principles) will apply to all matters relating to use of the App. If for any reason, the arbitration provision required above is deemed inapplicable or unenforceable or you effectively opt-out from arbitration, exclusive jurisdiction must lie with the state or federal courts located in Miami-Dade County for all disputes, actions or proceedings arising out of or relating to your use of the App. Notwithstanding and in addition to the foregoing, either party may bring an individual action in the small claims court of the county (or parish) in the state where you reside at the time of claim, provided that you or we seek relief that does not affect other App users.
- c) Severability. If a provision of these Terms is held to be illegal, invalid, or unenforceable, then we agree: (i) it must be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and (ii) the legality, validity and enforceability of the remaining provisions of these Terms must not be affected or impaired.
- d) Waiver. No failure or delay on the part of BRIGHTSWIPE in exercising any right, power or remedy under these Terms may operate as a waiver, nor may any single or partial exercise of any such right, power or remedy preclude any other or further exercise of such right, power, or remedy, or the exercise of any other right, power, or remedy under these Terms.
- e) Term and Termination. These Terms will take effect (or shall re-take effect) at the time you click “I ACCEPT”, complete a purchase, select a method of payment, enter in payment method information, and/or begin accessing or using the App, whichever is earliest. BRIGHTSWIPE reserves the right at any time and without notice to deny you access to the App or Services thereof and to terminate your rights under these Terms, in its sole and absolute discretion. Your rights under these Terms will terminate automatically if you fail to comply with these Terms, subject to the survival rights of certain provisions identified below. Termination will be effective without notice. Upon termination, you must promptly delete the App and destroy all copies of any Material in your possession. The provisions concerning proprietary and intellectual property rights, indemnity, disclaimers of warranty and limitation of liability, admissibility of these Terms, billing terms to the extent you are obligated for Services contracted for, and governing law will survive the termination of these Terms for any reason.
- f) Legal Notice for New Jersey Residents Under the New Jersey Truth-in-Consumer Contract, Warranty and Notice ACT (“TCCWNA”), N.J.S.A. 56:12-14 et seq., consumers may not be offered any written contract which includes any provision that violates any clearly established legal right of a consumer, or responsibility of a seller, as established by state or federal law. In addition, under the TCCWNA, no consumer contract may state that any of its provisions are or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable in New Jersey. Therefore, the following provisions of these Terms shall not be applicable to New Jersey residents: (1) in the Disclaimer of Warranties and Limitation of Liability Sections, (a) the provision concerning limiting our liability for any loss or damage is not applicable to New Jersey residents to the extent we were negligent or have breached our obligation to you, including with respect to Material provided to you, unauthorized access, use, or loss of personally identifiable information; (b) the provision concerning the exclusion or limitation of certain damages is not applicable to New Jersey residents with respect to punitive damages and loss of data; and (c) the provisions which limit the time within which claims against us must be brought.
- g) Additional Terms Applicable to Downloading the App from Apple® App Store The following terms apply when you download our App from the Apple® App Store:
- With respect to the App when accessed through or downloaded from the Apple® App Store (“App Store Sourced Application”), you will use the App Store Sourced Application only: (i) on an Apple®-branded product that is owned or controlled by the user; and (ii) as permitted by the “Usage Rules” set forth in the Apple® App Store Terms of Service. BRIGHTSWIPE reserves all rights in and to the mobile application not expressly granted to you under these Terms.
- You acknowledge and agree that (i) these Terms are concluded between you and BRIGHTSWIPE only, and, that Apple is not a party to these Terms other than as third-party beneficiary as contemplated below, and (ii) BRIGHTSWIPE, not Apple®, is solely responsible for the App Store Sourced Application and the BRIGHTSWIPE App’s content.
- To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the App Store Sourced Application, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
- Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple® and BRIGHTSWIPE, BRIGHTSWIPE, and not Apple®, is responsible for addressing any claims you may have relating to the App Store Sourced Application, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Further, you agree that if the App Store Sourced Application, or your possession and use of the App Store Sourced Application, infringes on a third party’s intellectual property rights, you will not hold Apple® responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claims.
- You acknowledge and agree that Apple®, and Apple’s subsidiaries, are third-party beneficiaries of these Terms for App Store Sourced Applications, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms for App Store Sourced Applications against you as a third-party beneficiary thereof.
- Without limiting any provisions of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist support” country and (ii) you are not included on any U.S. Government list of prohibited or restricted parties.
BY USING OR ACCESSING THE App, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND AGREE TO BE BOUND BY THEM.
21) Contact Information.
If you have questions about these Terms or want to contact us, please send an email to firstname.lastname@example.org, call Customer Support at (888) 794-7360, or write to us at:
1451 W. Cypress Creek Road, Suite 300
Fort Lauderdale Fl, 33309