Terms and Conditions

Updated: Aug 1, 2024

Please carefully read these Terms and Conditions (“Terms” or “Agreement”) and our Privacy Policy, which is incorporated into these Terms by this reference. These Terms apply to the applications, services, products and websites, including www.thedusttest.com (collectively, the “Services”) of The Dust Test LLC (the “Company” or “we” or “us”).

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICES.

PLEASE READ THE DISPUTE RESOLUTION PROVISION BELOW BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

Unless otherwise noted, the Services are the property of the Company and its licensors. By using the Services, you agree to these Terms, our Privacy Policy and all applicable laws and regulations.

The Services are not intended for the use of children under 18 and no such person is authorized to use them. By using the Services, you are representing that you are at least 18 years old. You also represent, by accessing or using the Services, that you are of legal age to enter into legal agreements. IF YOU PROVIDE INFORMATION TO US ABOUT INDIVIDUALS OTHER THAN YOURSELF, INCLUDING ANY CHILDREN UNDER THE AGE OF 18, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY AND CONSENT TO PROVIDE THAT INFORMATION TO US.

The Company reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms, at any time. It is your responsibility to check these Terms periodically for changes. Your continued use of the Services following the posting of changes indicates your agreement to and acceptance of the changes. The date of the last update of the Terms is indicated at the top of these Terms.

Privacy and Data Security

Please refer to the Company’s Privacy Policy for information on how we collect, use and disclose information from our users. Additionally, by using the Services, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that transmissions to or through the Services may be intercepted by others, and users assume the risk of security breaches and all consequences resulting from them. Please let us know immediately if you suspect that your personal information has been compromised.

Content

Unless otherwise noted, all text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained in the Services is owned, controlled or licensed by or to the Company and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights.

Except as expressly provided in these Terms, no part of the Services and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without the Company’s express prior written consent.

Your Relationship with Us

Any Content on the Services, or content you receive from us is for educational and informational purposes. We cannot and do not guarantee any type of specific results, outcomes or changes through use of the Services.

THE COMPANY DOES NOT PROVIDE MEDICAL ADVICE AND IS NOT INTENDED TO BE A SUBSTITUTE FOR THE ADVICE, DIAGNOSIS OR TREATMENT FROM A PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF ANY INTERACTION YOU HAVE HAD WITH, OR INFORMATION RECEIVED FROM, THE COMPANY.

By accepting this Agreement, you acknowledge and agree that the Company is not a healthcare provider and that by using the Services, you are not entering into a patient-provider or other healthcare provider relationship with the Company.

User Submissions, Feedback and Information

You acknowledge and agree that any submission, feedback, comments or suggestions you may provide regarding the Services either directly or indirectly (for example, through the use on a third-party social media site of a company-designated hashtag) (collectively, “Submissions”) is non-confidential and non-proprietary, shall be treated as public information, may be shared with others on other sites and platforms and is submitted by you in compliance with these Terms. Submissions that constitute feedback, comments or suggestions will be the sole and exclusive property of the Company and you hereby irrevocably assign to us all of your right, title and interest in and to all such Submissions, and the Company shall have an unrestricted, irrevocable, world-wide, royalty-free right to use, communicate, reproduce, publish, display, distribute and exploit such Submissions in any manner it chooses. With respect to all other Submissions, you hereby grant the Company an irrevocable, worldwide and perpetual license to use such Submissions as contemplated in these Terms.

Your provision of a Submission constitutes a warranty and indemnity that you have sufficient license and/or other rights in the content to allow all desired use by the Company.

Your Use of the Services

In connection with your use of the Services, you agree that you will not:

violate any local, state, provincial, national, or other law or regulation, or any order of a court;
infringe, misappropriate or violate the Company’s or any third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
interfere with or damage the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
“scrape,” “crawl” or “spider” any web pages or other services contained in the Services;
display, mirror or frame the Services, or any individual element within the Services, the Company’s names, any Company trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without the Company’s express written consent;
access, tamper with, or use non-public areas of the Services, the Company’s computer systems, or the technical delivery systems of the Company’s providers;
attempt to probe, scan, or test the vulnerability of any the Company system or network or breach any security or authentication measures;
avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by the Company or any of the Company’s providers or any other third party (including another user) to protect the Services or any of the content on the Services;
attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
use the Services as part of any effort to compete with us or otherwise use the Services and/or the Content for any revenue-generating endeavor or commercial enterprise; or
advocate, encourage, or assist any third party in doing any of the foregoing.

Any conduct by a user that in our discretion restricts or inhibits any other user from using or enjoying the Services is expressly prohibited.

The Company reserves the right, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Services, or any portion of the Services, for any reason; (2) to modify or change the Services, or any portion of the Services, and any applicable policies or terms; and (3) to interrupt the operation of the Services, or any portion of the Services, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

Terms of Purchase; Returns

Products and services are available for purchase at the Company’s online stores. Please note that we use third parties not affiliated with us to host the online stores and process payments for purchases. You agree that the third party processors are solely responsible for hosting the online store, and controlling, handling, processing, or fulfilling purchases processed through its systems. The Company’s relationship with such third parties is contractual in nature, as each such third party is a third-party vendor to the Company, and they are not subject to the Company’s direction or control; thus, the relationships are not, and should not be construed as, one of fiduciaries, franchisors-franchisees, agents-principals, employers-employees, partners, joint venturers or the like. You may be subject to additional terms of use and/or privacy policies of such third parties when you visit the online store and/or purchase products and services.

You agree to keep your account information current at all times. To make changes to your account information, please contact us at [email protected]. Please also let us know immediately if you suspect any unauthorized use of your credit card or login credentials.

Prices for products and services are subject to change at any time, but changes will not affect any order for products and services you have already placed.

By purchasing products or services, you agree to pay the fees for the products and services and any applicable taxes due with respect to your purchase of products or services through our Services. You agree to pay any shipping, delivery and handling charges, if any, shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping, delivery and handling charges from time to time, but we will provide notice of the changes applicable to you before you make your purchase. Any delivery dates or times shown as part of the checkout process are estimates only and are not guaranteed.

Only valid payment methods acceptable to us may be used to complete a purchase via the Services. You represent and warrant that you are authorized to use your designated payment method. You authorize us to charge your designated payment method for the total amount of your order (including any applicable taxes, fees, delivery, shipping and handling charges).

Dust Test kits are meant to analyze your particular environment, so once the kit is opened, it cannot be re-used. Accordingly, there are no refunds or exchanges except as may be required by applicable law or regulation or if the products are damaged.

Mobile Messaging

The Company offers mobile messaging, where, if you opt-in, you agree to these Terms and to receive text messages from us. Participation in mobile messaging is optional and not a condition of purchase. The messages we send to you may include marketing messages and service-related communications, just as confirmations and reminders of appointments. Messaging frequency may vary. You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

Regardless of the opt-in method you utilized to participate in mobile messaging, you agree that these Terms apply to your participation in mobile messaging. By participating in mobile messaging, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving mobile messages. Under no circumstances will we be responsible for any messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number.

SMS/MMS MOBILE MESSAGING OPT-OUT: If you do not wish to continue to receive mobile messages, please reply STOP to any mobile message from us in order to opt out. You may receive an additional mobile message confirming your decision to opt out.

Copyright Policy

We do not permit copyright infringing activities and infringement of intellectual property rights on the Services and will remove any such content if properly notified that such content infringes on another’s intellectual property rights. If you are a copyright owner or an agent thereof and believe that any content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interest;
description of the copyrighted work that you claim has been infringed;
description of the material that you claim is infringing and where it is located on the Services;
identification of the URL or other specific location on the Services where the material that you claim is infringing is located;
your address, telephone number, and email address;
statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

You can contact our Copyright Agent via email at [email protected] or by mail at Copyright Agent, c/o The Dust Test LLC, 1712 Ginesi Dr. Suite 1, Freehold, NJ 07728.

Upon receipt of such notice, we will investigate and remove material if necessary. You will be notified of the results of such investigation.

Links to Other Sites

The Services may contain links to other independent third-party websites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under the Company’s control, and the Company is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites.

We operate social media pages on third party networks and have social media icons on our website. Social media providers are unaffiliated with us, and we are not responsible for the content or privacy practices of social media providers. Social media providers have their own terms of use and privacy policies, and we encourage you to review those policies whenever you visit their websites or interact with their platforms.

Indemnity

You agree to indemnify and hold the Company its subsidiaries, parent companies and affiliates, and all of their respective officers, directors, owners, employees, agents, attorneys, licensors, representatives, licensees, and suppliers (collectively, the "Company Parties"), harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against a Company Party by any third party due to or arising out of or in connection with (1) your access to or use of the Services; (2) your violation of these Terms or any applicable law, rule or regulation, (3) your violation of any rights of any third party; or (4) any disputes or issues between you and any third party.

Disclaimer; Limitation of Liability

THE SERVICES AND ALL TOOLS AND CONTENT OFFERED THROUGH THE SERVICES ARE PROVIDED “AS IS, AS AVAILABLE.” ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW.

EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF THE COMPANY PARTY(IES) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY PARTIES’ AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES (DIRECT OR OTHERWISE) OR PENALTIES OR LOSS, REGARDLESS OF THE FORM OF ACTION OR CLAIM, EXCEED THE TOTAL FEES PAID BY YOU TO THE COMPANY IN THE THREE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

BY USING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED. ACCORDINGLY, YOU AGREE TO WAIVE THE BENEFIT OF ANY LAW, INCLUDING, TO THE EXTENT APPLICABLE, CALIFORNIA CIVIL CODE SECTION 1542, THAT OTHERWISE MIGHT LIMIT YOUR WAIVER OF SUCH CLAIMS.

THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THE FOREGOING PARAGRAPHS APPLY REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, OR ANY OTHER LEGAL THEORY, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so these limitations may not apply to you.

Violation of These Terms

You agree that the Company may, in its sole discretion, without prior notice and to the extent applicable, terminate your access to the Services and/or block your future access to the Services if we determine that you have violated these Terms or other agreements or guidelines which may be associated with your use of the Services. You also agree that any violation by you of these Terms will cause irreparable harm to the Company for which monetary damages would be inadequate, and you consent to the Company obtaining any injunctive or equitable relief that the Company deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies the Company may have at law or in equity.

Governing Law

You agree that all matters relating to your access to or use of the Services, including all disputes, will be governed by the laws of the United States and by the laws of the State of Florida excluding: (1) its conflicts of law principles; and (2) the United Nations Convention on Contracts for the International Sale of Goods.

Dispute Resolution

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

Except for actions to protect confidential information or intellectual property rights, all disputes, claims, suits, or controversies arising out of or in any way connected with these Terms and the use of the Services (collectively, “Disputes”) shall be submitted first to mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Rules then in effect.

Binding Arbitration. Any Dispute not settled by mediation as provided above shall be finally settled by binding arbitration administered by the AAA under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer related disputes (collectively, “AAA Rules”) of the AAA, as modified by these Terms. There shall be one (or if either party so requests, then by a panel of three arbitrators) appointed in accordance with the Rules, and you waive your rights to have any and all Disputes resolved in a court; provided, however, that this agreement to arbitrate does not extend to Disputes in which either party seeks (i) injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, (ii) the right to pursue enforcement actions through applicable U.S. federal, state, or local agencies where such actions are available, or (iii) injunctive relief in a U.S. court of law. The language of the arbitration shall be English. The arbitration proceedings and decision of the arbitrator(s) shall be kept confidential (and may not be disclosed) by the parties or the arbitrator(s), except to the extent necessary to compel any award made by the arbitrator(s).

No Class Arbitrations, Class Actions or Representative Actions. Any Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. There will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.

Location. The location of the arbitration shall be in Tampa, Florida.
Authority of Arbitrator(s). As limited by the AAA Rules and these Terms, the arbitrator(s) will have (i) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (ii) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator(s) do not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms, or to award punitive damages or any other damages that are not compensatory. The arbitrator(s) may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

Jurisdiction. To the extent that any lawsuit or court proceeding is permitted under these Terms, to the fullest extent permitted by law you agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located in Tampa, Florida for the purpose of litigating all such disputes. You also waive your rights to a jury trial.

Time Limit for Claims. Any claim under these Terms must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. You agree to the admissibility of computer records and electronic evidence in any dispute herein.

Severability of Dispute Resolution; Arbitration. In the event the provisions in this Dispute Resolution Section are held invalid or unenforceable, then this Dispute Resolution Section, in its entirety, will cease to apply, and the parties will not be obligated to arbitrate any Disputes.

Users Outside of the United States

Although the Company’s Services are accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Services are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. If you choose to access the Services from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.

Miscellaneous

When you access or use the Services or send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you via SMS text messaging if you opt in, email or through the Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You may preserve these Terms in written form by printing it for your records, and you waive any other requirement that these Terms be evidenced by a written document.

You may not use or export or re-export any Content or any copy or adaptation of such Content, or any product or service offered on the Services, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.

All provisions of these Terms are severable, and the unenforceability or invalidity of any of the provisions will not affect the enforceability or validity of the remaining provisions.

These Terms, together with our Privacy Policy and any other legal notices published by the Company, constitute the entire agreement between you and the Company with regard to your use of the Services. If you enter into a separate customer agreement with the Company, these Terms shall be read so as to be compatible with such customer agreement. However, to the extent there is an irreconcilable conflict between these Terms and any such terms and conditions in the customer agreement, the provisions set forth in the customer agreement shall control.

The Company’s failure to insist on or enforce strict performance of these Terms shall not be deemed a waiver by the Company of any provision or any right it has to enforce these Terms. Any such waiver must be in writing in order to be effective.

These Terms shall not be interpreted or construed to confer any rights or remedies on any third parties.

The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between a user or customer and the Company as a result of this Agreement or use of the Services.

You may not assign any of your rights under this Agreement, and any such attempt will be null and void. The Company may, in its sole discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to this Agreement to any affiliate of the Company or to another third party in the event that some or all of the business of the Company is transferred to such other third party by way of merger, sale of its assets or otherwise.

Canada

The parties declare that they have required that these Terms and all documents related hereto, either present or future, be drawn up in the English language only. Les parties déclarent par les présentes qu’elles exigent que cette entente et tous les documents y afferents, soit pour le present ou le future, soient rédigés en langue anglaise seulement.

Notice for California Users

Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.

Questions and Contact Information

Please contact us if you have any questions about our Privacy Policy. You may contact us by sending correspondence to The Dust Test LLC, 1712 Ginesi Dr. Suite 1, Freehold, NJ 07728, or by emailing us at [email protected].