PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Last Updated: July 19, 2023
Welcome to Dear Brightly. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”), including, without limitation, any request to receive information about, or to purchase any of the products made available through our website(s) (each, a “Product”). Your purchase of any Products will also be governed by any other terms made available by us to you during the sales process. If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at email@example.com.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Your use of or participation in certain Services may be subject to additional policies, rules and/or conditions (“Additional Terms”) which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.
IMPORTANT: SUBSCRIPTIONS AUTOMATICALLY RENEW. If you enroll in the Auto-refill Plan, your subscription will renew automatically each subscription period and will continue unless paused or cancelled by you or us in accordance with these terms and conditions. You can cancel or pause your Auto-refill Plan subscription by following instructions set forth under “Auto-refill Plan Terms” below.
The Services are offered and available to users who are 18 years of age or older and reside in the United States. By using the Services, you represent and warrant that you are of legal age to form a binding contract with Dear Brightly and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Services.
ABOUT THE SERVICES.
Dear Brightly provides technological and other services to connect patients to licensed medical providers, but does not provide any medical services. All medical care is provided by independent licensed medical providers. You acknowledge that although some tele-dermatology services and customized prescription Products made available through the website may be provided by healthcare professionals, the provision of such Products and Services does not create a medical professional/patient relationship between you and Dear Brightly. The Products and Services are provided to assist you in facilitating dermatology consultations limited to the diagnosis and treatment of skin aging, and not for any other medical or dermatological conditions, including skin cancer. Dear Brightly does not guarantee that a prescription will be written. Dear Brightly is not an insurance product. Dear Brightly operates subject to state regulation and may not be available in certain states.
We do not Provide Medical Advice.
Dear Brightly is not itself a healthcare provider and does not replace your existing relationship with your primary care provider or any other healthcare provider you may use. If you rely on any Content, you do so solely at your own risk. We encourage you to independently confirm any Content relevant to you with other sources, including a dermatologist, primary care physician, or any other health professional, medical associations relevant to dermatology, your state medical boards, and the appropriate licensing or certification authorities to verify listed credentials and education. Dear Brightly’s medical providers reserve the right to deny treatment if they believe that a patient may be better served by a local provider, or for any other reason according to their professional judgment. Dear Brightly’s medical providers do not prescribe Drug Enforcement Administration (DEA) controlled substances.
WHILE WE HOPE THE PRODUCTS AND SERVICES ARE USEFUL IN YOUR HEALTHCARE JOURNEY, THEY ARE NOT INTENDED AS A SUBSTITUTE FOR, NOR DO THEY REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE FROM A QUALIFIED HEALTHCARE PROVIDER, UNDER ANY CIRCUMSTANCE. DO NOT USE THE PRODUCTS OR SERVICES FOR EMERGENCY MEDICAL NEEDS. IF YOU EXPERIENCE A MEDICAL EMERGENCY, IMMEDIATELY CALL A HEALTHCARE PROFESSIONAL AND 911. YOUR USE OF THE CONTENT IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR POSTED ON THE WEBSITE OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE, NURSING, OR OTHER PROFESSIONAL HEALTHCARE ADVICE, OR THE PROVISION OF MEDICAL CARE.
Doctor Patient Relationship
DOCTORS, NURSES, AND OTHER MEDICAL PROFESSIONALS USE THE SERVICES TO SHARE CONTENT WITH YOU, BUT YOUR USE OF THIS CONTENT IS NOT A SUBSTITUTE FOR HEALTHCARE. NO LICENSED MEDICAL PROFESSIONAL/PATIENT RELATIONSHIP IS CREATED WHEN YOU USE THE SERVICES OR CONTENT UNLESS ALLOWED THROUGH TELEHEALTH. THIS IS TRUE WHETHER SUCH CONTENT IS PROVIDED BY OR THROUGH THE USE OF THE SERVICES OR THROUGH ANY OTHER COMMUNICATIONS FROM DEAR BRIGHTLY.
Dear Brightly encourages healthcare providers to use the Services responsibly, but we have no control over any healthcare provider at any particular time. We will not be liable for any injury resulting or arising from, or related to, the use of the website, Products or Services whatsoever.
WILL THESE TERMS EVER CHANGE?
We are constantly trying to improve our Products and Services, so these Terms may need to change along with our Products and Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the www.dearbrightly.com website, by sending you an email, and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
WHAT ABOUT MY PRIVACY?
Dear Brightly’s Services are intended for users ages 18 and up only.
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for or otherwise use the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at firstname.lastname@example.org.
WHAT ARE THE BASICS OF USING DEAR BRIGHTLY?
You may be required to sign up for an account, select a password and enter an email address to be used as your unique user identifier (“Dear Brightly User ID”), and provide us with certain information or data, such as your contact and shipping information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Dear Brightly User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will not share your account or password with anyone, and you must protect the security of your account and your password. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You’re responsible for any activity associated with your account. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security.
You are responsible for:
- Making all arrangements necessary for you to have access to the Services.
Consent to receive periodic messages
As part of the Services, you may receive communications through the Services, including messages that Dear Brightly sends you (for example, via email or text message). BY SIGNING UP FOR THE SERVICES, YOU AGREE TO RECEIVE COMMUNICATIONS FROM DEAR BRIGHTLY, AND YOU REPRESENT AND WARRANT THAT EACH PERSON YOU REGISTER FOR THE SERVICES OR FOR WHOM YOU PROVIDE A WIRELESS PHONE NUMBER HAS CONSENTED TO RECEIVE COMMUNICATIONS FROM DEAR BRIGHTLY. You agree to indemnify and hold Dear Brightly harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
Communications may include but are not limited to information regarding your Product or Service (e.g., upcoming order notifications, shipment updates, medical provider messages, etc.) and promotional and marketing communications relating to the Site and Services, to the extent you have opted-in to receive such messages from Dear Brightly.
By opting-in to receive text (SMS) messages from Dear Brightly or by sending Dear Brightly an initial text message (an "SMS Enrollment"), you consent to receiving text messages regarding your Dear Brightly account and use of the Services. With your SMS Enrollment, you represent and understand that: (1) you are the owner or authorized user of the mobile device you used in order to initiate the SMS Enrollment, (2) you are authorized to approve any applicable charges in connection with the text messages you send to and receive from Dear Brightly, (3) you will be responsible for all messaging and other data charges that may apply for any text messages sent to you from Dear Brightly, or from Dear Brightly to you, and (4) neither Dear Brightly, nor your or Dear Brightly's mobile carriers, will be liable for delayed or undelivered messages.
Note that access to the Services is not conditioned upon your consent to receive marketing or promotional text messages from Dear Brightly, and you can opt-out of any of Dear Brightly's SMS services at any time by texting "STOP" to the message received, from the mobile device that is subscribed to receive the SMS messages. After you send the text message "STOP" to us, we may send you one final text message to confirm that you have been unsubscribed. If you have opted-in to receive more than one type of text message from Dear Brightly, you will need to opt-out of each Dear Brightly SMS service to which you are subscribed. Until you have done so, you may continue to receive the types of text messages from Dear Brightly that you have opted-in to receive but have not unsubscribed from. Keep in mind that if you stop receiving text messages from us you may not receive important and helpful information and reminders about your orders and treatment.
You also understand that while Dear Brightly takes your privacy and the security of your health and other sensitive information very seriously, the transmission of information over the internet and mobile networks is not 100% secure. While correspondence sent from Dear Brightly to you will never contain your photos or payment information, they will sometimes include information relating to the details of your treatment (as applicable). Accordingly, it is critical that you safeguard your text messages and emails and restrict access thereto. The registration of an email address and phone number in your account indicates your consent for Dear Brightly to transmit your personal information, including your health information, to such address.
Text messages and emails that you send to or receive from Dear Brightly are not encrypted, which means that it is possible they may be intercepted by third parties. If you choose to send or receive information about your health or any other sensitive information by text message or email, you do so at your own risk. By initiating an SMS Enrollment, you consent to sending text messages to Dear Brightly, and receiving text messages from Dear Brightly, that are not encrypted. Likewise, by emailing Dear Brightly or giving Dear Brightly your email, you consent to receiving unencrypted emails messages from Dear Brightly.
If you are experiencing any issues with Dear Brightly's text messaging or email services, or if you have any concerns about sending or receiving any sensitive information through text or email, please contact us directly at email@example.com. If you have questions specific to your text or data plan, please contact your wireless provider.
Your use of the Services is subject to the following additional restrictions:
You represent, warrant, and agree that you will not (and shall not permit others to) contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
- Infringes or violates the intellectual property rights or any other rights of anyone else (including Dear Brightly);
- Violates any law or regulation, including any applicable export control laws, privacy laws or any other purpose not reasonably intended by Dear Brightly;
- Is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- Jeopardizes the security of your Dear Brightly account or anyone else’s (such as allowing someone else to log in to the Services as you);
- Attempts, in any manner, to obtain the password, account, or other security information from any other user;
- Violates the security of any computer network, or cracks any passwords or security encryption codes;
- Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
- Copies or stores any significant portion of the Content;
- Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
Additionally, you agree not to (and shall not permit others to):
- Use the Services for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
- Impersonate or attempt to impersonate Dear Brightly, a Dear Brightly employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing);
- Use the Services in any manner that could disable, overburden, damage, or impair the Services or interferes with any other party’s use of the Services, including their ability to engage in real time activities through the Services;
- Use any device, software or routine that interferes with the proper working of the Services;
- Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, or any server, computer or database connected to the Services;
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack;
- Use the Services to post or send infringing, obscene, threatening, libelous, or otherwise unlawful material;
- Use the Services to access blocked services in violation of applicable laws;
- Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Services;
- Permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit;
- Sell, resell, license, sublicense, distribute, rent, lease the Services, or include the Services in a service bureau or outsourcing offering;
- Modify, display, republish or create derivative works based on the Services;
- Without the express prior written consent of Dear Brightly, conduct any benchmarking or comparative study or analysis involving the Services for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of the Services to interoperate with your internal system;
- Engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Dear Brightly or users of the Services or expose them to liability;
- Otherwise attempt to interfere with the proper working of the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
WHAT ARE MY RIGHTS IN THE SERVICES?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Dear Brightly’s) rights.
The Dear Brightly name and the Dear Brightly logo and all related names, logos, product and service names, designs and slogans are trademarks of Dear Brightly or its affiliates or licensors. You must not use such marks without our prior written permission. All other names, logos, product and service names, designs and slogans in the Services are the trademarks of their respective owners.
DO I HAVE TO GRANT ANY LICENSES TO DEAR BRIGHTLY OR TO OTHER USERS?
For all User Submissions, you represent and warrant that you own or control all rights in and to the User Submissions and have the right to grant the licenses granted below to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns. You hereby grant Dear Brightly a license to translate, modify (for technical purposes, for example making sure your content is viewable on a portable device as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.
If you store a User Submission in your own personal Dear Brightly account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant Dear Brightly the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services necessary to do so.
If you share a User Submission only in a manner that only certain specified users can view (for example, a private message to one or more other users) (a “Limited Audience User Submission”), then you grant Dear Brightly the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, testimonial, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a “Public User Submission”), then you grant Dear Brightly the licenses above, as well as a license to display, perform, distribute, commercialize and exploit your Public User Submission along with your name, User ID, and other identifying information for the purpose of making that Public User Submission accessible to all Dear Brightly users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Dear Brightly’s business for any purpose. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services. You agree that the licenses you grant are royalty-free, perpetual, sublicenseable, irrevocable, and worldwide, provided that when you delete your Dear Brightly account, we will stop displaying your User Submissions to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from our records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.
Finally, you understand and agree that Dear Brightly, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
WHAT IF I SEE SOMETHING ON THE SERVICES THAT INFRINGES MY COPYRIGHT?
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like Dear Brightly, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, please follow the instructions below. To learn more about the DMCA, click here.
Copyright owners, those authorized to act on behalf of one, or those authorized to act under any exclusive right under copyright, may report alleged copyright infringements that occur on or through the Services by completing the following DMCA Notice of Alleged Infringement (“Notice”) and by delivering it to our Designated Copyright Agent. Before submitting a Notice, consider whether fair use or a similar exception applies. Upon receipt, we will take action, in our sole discretion and as we deem appropriate, including removal of allegedly infringing content from our service and/or website.
Your DMCA Notice shall include the following:
- Description of the Work– Please identify the copyrighted work that you claim has been infringed, or, if multiple copyrighted works are covered by this Notice, you may provide a representative list of such works in a single Notice.
- Specific URL– Please identify the material or link that you claim is infringing (or the subject of the infringing activity) and to which access should be disabled, including information reasonably sufficient for us to locate the material, such as a URL or link or the exact location where the allegedly infringing material may be found.
- Your Contact Information– Please provide information reasonably sufficient for us to contact you, such as an address, telephone number, and if available, an email address.
- Include and Agree to the Following Statements– You must include both of the following statements in the body of the Notice: “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use). I hereby state that the information contained in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
- Your Signature– Please provide the full legal name and a physical or electronic signature of the individual authorized to act on behalf of the owner of an exclusive right that has been infringed.
Deliver this Notice with each of the above items to our Designated Copyright Agent:
Dear Brightly Legal Department
4900 Shattuck Avenue
Oakland, CA 94609
WHO IS RESPONSIBLE FOR WHAT I SEE AND DO ON THE SERVICES?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated. You access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services. You understand that Dear Brightly currently does not (i) conduct criminal background checks or screenings of its users, (ii) inquire into the backgrounds of its user or (iii) regularly attempt to verify the statements of its users, including without limitation any of the representations and warranties set forth in this agreement.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services. You User Submissions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Submissions must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- Promote sexually explicit material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Infringe any patent, trademark, trade secret, copyright or other intellectual property, or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote, or assist any unlawful act.
- Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
You represent and warrant that:
- You understand and acknowledge that you are responsible for any User Submissions you submit or contribute, and you, not Dear Brightly, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.
- We are not responsible, or liable to any third party, for the content or accuracy of any User Submissions posted by you or any other user of the Services.
Dear Brightly has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, Dear Brightly will not and cannot monitor, verify, censor or edit the content of any third-party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Dear Brightly shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between users and any third party, you agree that Dear Brightly is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Dear Brightly, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
WILL DEAR BRIGHTLY EVER CHANGE THE SERVICES?
We’re always trying to improve our Products and Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
You acknowledge and agree that: (1) all or any part of the Services may not be accessible at any time, for any period, or for any reason; and (2) Dear Brightly will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. Dear Brightly reserves the right at any time and for any reason to modify, or temporarily or permanently discontinue, the Services or any portion thereof, with or without notice. You agree that Dear Brightly shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
DOES DEAR BRIGHTLY COST ANYTHING?
You may choose to purchase products through the www.dearbrightly.com website. Dear Brightly reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount, trial or similar promotion; to bar any user from making any transaction; to refuse to provide any user with any Product; and to refuse any order. In the event Dear Brightly needs to make a change to an order, it will attempt to notify you by contacting the email address, billing address, and/or phone number provided at the time the order was made. The prices displayed on the website are quoted in U.S. currency and are valid only in the United States. Prices are subject to change at any time. You agree to pay all charges incurred by you or on your behalf through the website, at the prices in effect when such charges are incurred, including all shipping and handling charges. While it is our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.
- Sales Tax. You are responsible for any taxes applicable to your transactions. Sales tax will be determined by the shipping address of the order and will automatically be added to the order. Dear Brightly is required by law to apply sales tax to orders in certain states.
- Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
- Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- Shipment. Delivery of all Products is F.O.B. Dear Brightly’s designated facility. Dear Brightly shall make reasonable efforts to effect shipment on or before the scheduled shipping date(s) reflected on the applicable Ordering Document, but shipping dates are not guaranteed. If no shipping date is specified, shipment will be made on date(s) selected by Dear Brightly. Dear Brightly shall not be liable for any damages or penalties for delivery delay or for failure to give notice of delay. Delivery may be made in advance of any scheduled delivery date upon reasonable prior notice to you. All items will be packed for shipment and shipped in accordance with Dear Brightly’s standard practices. You are responsible for promptly notifying Dear Brightly of any changes to your shipping address information.
- Risk of Loss. All risk of loss of or damage to Products shall be assumed by you upon Dear Brightly's delivery of such Products to the carrier for shipment to you. Any and all claims by you for damage, loss or delays in transit shall be made against the carrier (with notice thereof to Dear Brightly), and Dear Brightly shall have no responsibility or obligation with respect to any such damage, loss or delay.
Inspection by Customer. You must carefully inspect all deliveries of Products and report promptly to Dear Brightly (but in any event within 5 calendar days after receipt) any alleged error, shortage, defect or nonconformity of Products. Any failure to inspect and report as provided herein shall constitute a waiver by you of any claim or right of you against Dear Brightly arising with respect to any such error, shortage, defect or nonconformity which was reasonably discoverable by such an inspection.
AUTO-REFILL PLAN TERMS
By electing to purchase any Rx product or over-the-counter product with Dear Brightly on a subscription basis, you agree to our auto-refill plan (“Auto-refill Plan” or “Plan”) terms set forth herein and your membership in the Plan will remain in effect until it is canceled. We may, in our sole discretion, terminate your membership in the Plan at any time without notice to you. Limit one account per person.
OUR AUTO-REFILL PLANS ARE OFFEREED ON A SUBSCRIPTION BASIS. YOUR AUTO-REFILL PLAN SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR SUCCESSIVE BILLING PERIODS UNLESS YOU OPT OUT OF AUTO-RENEWAL AST SET FORTH HEREIN. AS A MEMBER OF OUR AUTO-REFILL PLAN, THE VALID CREDIT CARD NUMBER YOU PROVIDED AT THE TIME OF YOUR INITIAL PURCHASE AND ENROLLMENT WILL BE AUTOMATICALLY CHARGED ON A GOING-FORWARD BASIS AT THE TIME OF EACH SHIPMENT OF PRODUCT IN EITHER THREE-MONTH (90 DAYS) or FOUR-MONTH (120 DAYS) INSTALLMENTS (AT YOUR ELECTION). WE MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, AND YOU ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES PRIOR TO YOU AFFIRMATIVELY CANCELLING YOUR MEMBERSHIP OR NOTIFYING US THAT YOU WISH TO CHANGE YOUR PAYMENT METHOD INFORMATION. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE DEAR BRIGHTLY REASONABLY COULD ACT.
IF YOU WISH TO CANCEL YOUR PARTICIPATION IN OUR AUTO-REFILL PLAN, YOU MAY DO SO BY FOLLOWING INSTRUCTIONS PROVIDED IN YOUR DEAR BRIGHTLY PLAN SETTINGS OR BY CONTACTING US AT SUPPORT@DEARBRIGHTLY.COM. YOU MUST CANCEL BEFORE YOUR NEXT SHIPMENT TO AVOID BEING CHARGED FOR THE NEXT RECURRING ORDER.
DEAR BRIGHTLY RESERVES THE RIGHT TO MODIFY, OFFER ADDITIONAL, OR CEASE OFFERING THE AUTO REFILL PLAN AT ANY TIME IN OUR SOLE DISCRETION, INCLUDING BUT NOT LIMITED TO CHANGING SUBSCRIPTION FEES, MODIFYING THE AVAILABILITY OF, ELIGIBILITY REQUIREMENTS FOR, OR FEATURES OR FUNCTIONALITY OF THE AUTO REFILL PLAN. ANY CHANGES TO SUBSCRIPTION FEES WILL BE EFFECTIVE UPON YOUR NEXT BILLING CYCLE. IN THE EVENT WE DO MODIFY THE AUTO REFILL PLAN, YOU MAY OPT OUT OF THESE CHANGES BY DISABLING AUTO-RENEWAL OF THE PLAN OR CANCELLING YOUR PLAN AS SET FORTH ABOVE, BUT WE WILL NOT ISSUE YOU ANY REFUND, INCLUDING PARTIAL OR PRO-RATED REFUNDS, UNLESS REQUIRED TO DO SO BY LAW.
It is your responsibility to provide current, complete, and accurate information for your billing account. You are responsible for promptly updating all information to keep your billing account current, complete, and accurate (e.g., change in billing address, credit card number, credit card expiration date, or telephone number). You must promptly notify us if your credit card information is canceled or is no longer valid (e.g., from loss or theft). Changes to such information can be made in your personal info tab on the Dear Brightly website. If your payment fails for an order or you initiate a chargeback or otherwise reverse a payment made with your Payment Method, your membership in our Auto-Refill Plan may be terminated. We may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and the necessary funds or credit available to cover your purchase.
Price. We reserve the right to determine the pricing of our Products and Services. We will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. We may change the fees for any feature or product, including additional fees or charges, if we provide advance notice of changes before they apply. We, at our sole discretion, may make promotional offers with different features and different pricing to any of our customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
No Purchase For Resale Allowed. We sell our products and services direct to you (end consumers) through the Auto-refill Plan service. Purchase of Products for resale (to other consumers, businesses, or third parties) is strictly prohibited. If we believe you are involved in purchase for resale, we reserve the right to take any action against you, including, without limitation, to restrict sales to you, cancel your orders, and/or suspend or close your account.
WHAT IF I WANT TO STOP USING DEAR BRIGHTLY?
Dear Brightly is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Dear Brightly has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Company.
If you have deleted your account by mistake, contact us immediately at firstname.lastname@example.org – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
WHAT ELSE DO I NEED TO KNOW?
Warranty Disclaimer. Neither Dear Brightly nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Dear Brightly or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY DEAR BRIGHTLY (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS OR SERVICES WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS. WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK, OR ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICES. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ANY SUCH CONTENT. FURTHERMORE, WE DO NOT IN ANY WAY ENDORSE OR RECOMMEND ANY INDIVIDUAL OR ENTITY LISTED OR ACCESSIBLE THROUGH THE SERVICES. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL DEAR BRIGHTLY (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO COMPANY IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold Dear Brightly, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account) and any Products, and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Dear Brightly’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Dear Brightly and limits the manner in which you can seek relief from Dear Brightly. Both you and Dear Brightly acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Dear Brightly’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
- Arbitration Rules; Applicability of Arbitration Agreement. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules (the “Rules”) and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Costs of Arbitration. The Rules will govern payment of all arbitration fees. Dear Brightly will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Dear Brightly will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
- Small Claims Court. Furthermore, either you or Dear Brightly may assert claims, if they qualify, in small claims court in San Francisco County, California or any United States county where you live or work.
- Waiver of Jury Trial. YOU AND DEAR BRIGHTLY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Dear Brightly are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Dear Brightly over whether to vacate or enforce an arbitration award, YOU AND DEAR BRIGHTLY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Dear Brightly is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
- Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: PO Box 3781, Oakland, CA 94609 postmarked within 30 days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
- Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Dear Brightly to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party and both you and Dear Brightly agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California.
- Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with Dear Brightly.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that we may, in our sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Dear Brightly agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Dear Brightly, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Dear Brightly, and you do not have any authority of any kind to bind Dear Brightly in any respect whatsoever. You and Dear Brightly agree there are no third party beneficiaries intended under these Terms.