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Date of Last Revision: June 26, 2018
Hello and welcome to Brightback’s Terms of Service!
Brightback, Inc. (“Brightback”) provides its services (as defined below) to you through the Brightback website located at https://brightback.com (“the Site”), subject to this Terms of Service (“TOS”). By accepted this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understand, and agreed to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates in this TOS, in which case the terms “You” and “Your” will refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Services. You may not use the Service if you are a competitor to Brightback. You may not use the service if you are under the age of 18.
1. Description of the Service
This TOS covers your use of and access to the sites, templates, experiences, integrations and features (collectively, the "Services") provided by Brightback (as defined below), including without limitation during free trials, on the website and associated domains of https://brightback.com and on Brightback-supported sites.
2. Access and Restrictions
Subject to your compliance with all the terms and conditions of this TOS, including any payment obligations, Brightback grants to you a non-exclusive, non-transferable right to access and use the features and functions of the Service only as intended for your internal business purposes during the term of your subscription for the Service. Brightback hereby further grants to you a limited non-exclusive, non-transferable, non-sublicenseable, revocable license to access and use the application programming interface made available by Brightback solely to access the Services (“Brightback API”).
In order to access certain features and functions of the Service, you will be required to create an account. Each employee of yours who has access to the Service must also create an account. You may not share individual login credentials for the Service, and you will ensure that each individual user has separate login credentials. You must provide true, accurate, and correct information at the time of registration and account creation, and thereafter. You may not misrepresent your affiliation with a person or entity. The rights granted to you in these TOS are subject to the following restrictions: (a) you will not display, distribute, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sublicense, sell, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit (other than internal business use for its intended purpose) or make the Services (including any Brightback API) available to any third party; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or the Site (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Brightback’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Site or Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site; (f) except as expressly stated herein, no part of Site or Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Site or Service.
You will comply with this TOS, and any codes of conduct, policies or other notices Brightback provides you or publishes in connection with the Service. You will only access and use the Service for lawful and authorized purposes, and in no event in connection with competitive research or for scoping, benchmarking, developing, or providing any similar or competitive product or service. In addition, you may not exceed the scope of your authorized use of the Service.
Your Sites And Your End Users Are Your Responsibility. Your websites and/or services (“Your Sites”) may have their own visitors, customers and users (“End Users”). You understand and agree that Your Sites and your End Users are your responsibility, and you are solely responsible for compliance with any laws or regulations related to Your Sites and/or your End Users. We are not and will not be liable for, and will not provide you with any legal advice regarding, Your Sites or your End Users. The foregoing does not limit or affect any liability we may have to you separately for any breach of the other provisions of this Agreement.
You will not use the Service to (or assist another person to) email or otherwise upload any content that (i) infringes or misappropriates any intellectual property or other proprietary or privacy rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, hateful racially, ethnically or otherwise objectionable; or (v) in the sole judgment of Brightback, which may expose Brightback or its users to any harm or liability of any type.
You may not interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service.
You will not harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications.
You may not obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Except with respect to any “free plan” or “free trial” of the Service, you will be required to select a subscription plan and provide Brightback information regarding your credit card or other payment instruments accepted by Brightback. You will be responsible for payment of the applicable fee for any Service (each, a “Service Subscription Fee”) at the time you create your account and select your subscription plan (each, a “Service Start Date”). Except as set forth in the TOS, all fees for the Service are non-refundable. No contract will exist between you and Brightback for the Service until Brightback accepts your order by an online purchase made using a credit card, or by a signed Service Order.
Brightback’s fees are net of any applicable Sales Tax (as defined below). If any Service, or payments for any Service, under the TOS are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Brightback, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Brightback for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Brightback is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
Your subscription will continue indefinitely until terminated in accordance with the TOS. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Contract Renewal Date”) and continue for an additional equivalent period, at Brightback’s then-current price for such subscription. You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription prior to the Contract Renewal Date (or in the event that you receive a notice from Brightback that your subscription will be automatically renewed, you will have thirty (30) days from the date of the Brightback notice), by logging into and going to the “Change/Cancel Plan” page. If you do not wish your account to renew automatically, or if you want to change or terminate your subscription, log in and go to the “Change/Cancel Plan” page, where you may change your subscription. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Brightback to charge your payment provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Brightback does not receive payment from your payment provider, (i) you agree to pay all amounts due on your account upon demand, and/or (ii) you agree that Brightback may either terminate or suspend your subscription and continue to attempt to charge your payment provider until payment is received (upon receipt of payment, your account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
You represent and warrant to Brightback that any payment and billing information provided hereunder is, and will be maintained as, true, complete, accurate, and up to date, and that you are authorized to use such payment instrument.
All fees may be changed by Brightback at any time and such increased fee amount will be notified to you and applicable in the following billing cycle (or such other future time notified to you by Brightback). Brightback may charge fees for features of the Service that were previously free. Unpaid trial use of the Service is subject to limitations, as may be described in our documentation or otherwise on our Site.
4. Proprietary Rights
Subject to the limited rights expressly granted herein, and your rights in your User Content, Brightback reserves all rights, title, and interest in and to the Site and Service, and any content thereof, including all related intellectual property rights. You may not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm, or methodology to access, acquire, copy, or monitor the Service.
Brightback and other related graphics, logos, service marks, and trade names used on or in connection with the Service are the trademarks of Brightback and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners. No license or right to use any trademark or service mark of Brightback or any third party is granted to you in connection with the Service.
All comments, feedback, information, ideas, or materials that you submit through or in association with the Site or the Service shall be considered non-confidential. By submitting such comments, feedback, information, ideas, or materials to Brightback: (i) you represent and warrant that Brightback’s use of your submission does not and will not breach any agreement, violate any law, or infringe any third party's rights; (ii) you represent and warrant that you have all rights to enter into this TOS; (iii) you understand and agree that Brightback is free to use in any manner all or part of the content of any such communications on an unrestricted basis without the obligation to notify, identify or compensate you or anyone else; and (iv) you grant Brightback all necessary rights, including a waiver of all privacy and moral rights, to use and/or incorporate into the Service all comments, feedback, information, or materials, in whole or in part, or as a derivative work, without any duty by Brightback to anyone whatsoever. You acknowledge that you are responsible for and bear all risk as to the use or distribution of any comments, feedback, information, ideas, or materials provided to Brightback hereunder.
5. Your User Content and Personal Data
Your User Content Stays Yours. You may provide us with text, photos, images, audio, video, code and other materials that will be used by the Services in connection with your End-User’s off-boarding experience (“User Content"). For avoidance of doubt, “User Content” includes: (i) generalized cancel page text, layouts, and images; and (ii) modal layouts, images, headlines, button text, and similar information. “User Content” does not include any information or Personal Data submitted by, or regarding, and End-User. Your User Content stays yours, except for the limited rights that enable us to provide, improve, promote and protect the Services as described in this Agreement. You are solely responsible for all User Content that you upload, post, deliver, publish, provide or otherwise link, transmit or store in connection with or relating to the Service, including any personal information of your customers and end users (collectively “Personal Data”).
Your License To Us. When you provide User Content via the Services, you grant Brightback (including our third party hosting providers acting on our behalf) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations, testing enhancements or other changes we make so that User Content works better with the Services), communicate, publish, publicly display, publicly perform and distribute User Content for the limited purposes of allowing us to provide, improve, promote and protect the Services. This Section does not affect any rights you may have under applicable data protection laws.
While You retain ownership of your User Content, by posting Your Content on or through the Service, You hereby grant and agree to grant Brightback a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, license, modify, reproduce, distribute, display, adapt, publish, translate, create derivative works from, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content.
If European data protection legislation applies to the processing of Personal Data, the parties acknowledge and agree that (a) this section contains the subject matter and details of the processing; (b) Brightback is a processor of Personal Data; (c) you are a controller or processor, as applicable, of that Personal Data; and (d) each party will comply with the obligations applicable to it under the European data protection legislation with respect to the processing of that Personal Data. You represent and warrant that: e) you have acquired all relevant rights and consents to provide to Brightback such Personal Data; f) the data subjects are informed of such processing in compliance with European data protection legislation; g) Brightback shall have all the necessary rights to use such Personal Data for the purpose of the Services; and (h) if the European data protection legislation applies to the processing of Personal Data and you are a processor, you warrant to Brightback that your instructions and actions with respect to that Personal Data, including your appointment of Brightback as another processor, have been authorized by the relevant controller.
You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices; (c) transmission to Brightbacks’ third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service and (d) transmission to certain Third-Party Services (as defined in below). Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Brightback will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
For purposes of this TOS, “Confidential Information” shall include the terms of this TOS, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the receiving party; (4) the receiving party becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the receiving party; or (5) is aggregate data regarding use of the Service that does not contain any personally identifiable or Customer-specific information.
Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this TOS or as directed by you; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section 6 will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.
7. Account Security and Monitoring
You are responsible for maintaining the confidentiality of your login, password and account (including the accounts of your authorized end users) and for all activities that occur under each such login or account. You will promptly notify Brightback if you learn of a security breach related to the Service, including the compromise or loss of any of your login credentials. Brightback reserves the right to access your account in order to respond to your requests for technical support or to ensure proper functioning of the Service. For the avoidance of doubt, Brightback has the right, but not the obligation, to monitor the Service, Content, or Your Content. Brightback will do so if required by law or in the good faith belief that such action is protect Brightback, the Service, or other users of the Service.
Brightback will maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Your Content, as described in the documentation for the Service.
You agree to comply with all applicable rules and regulations, and local, state, national or international laws in connection with your access and use of the Service. You are responsible for ensuring that your use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards requirements and will ensure that you do not store credit card and social security data in the Service. In addition, you specifically acknowledge and agree that: (i) Brightback is not acting on your behalf as a Business Associate or subcontractor (as such terms are used, defined, or described in the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”)); (ii) the Service is not HIPAA-compliant; and (iii) you may not use the Service in any manner that would require Brightback or the Service to be HIPAA-compliant. You acknowledge and agree that the Service and the transmission of data may be subject to United States export controls. You agree to comply with all applicable U.S. and foreign laws.
9. Third-Party Services
The Service enables linking between various online third-party services such as third party communications, live chat, scheduling, billing, product usage, customer support, social, customer relationship management, and similar services (“Third-Party Services”). To take advantage of these feature and capabilities, you may be required to authenticate, register for or log into Third-Party Services through the Service or on the websites of their respective providers. By linking your account on the Service to your account on a Third Party Service, you are authorizing Brightback as your agent to access your Third Party Service account (and any information, content, materials, and features included therein) and use such Third Party Service (with read and write privileges) on your behalf for the purpose of integrating your experience on the Service with such Third Party Service. Your use of the Third Party Services is governed solely by the agreement between you and the provider of such Third Party Service, and the Third Party Services provider is solely responsible for such Third Party Service.
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet (including without limitation Third-Party Services). Brightback has no control over such sites and resources and Brightback is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Brightback will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Brightback is not liable for any loss or claim that you may have against any such third party.
You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. We’re not liable to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result (except where prohibited by applicable law).
The Service may include certain services that are available via a mobile device, including (i) the ability to view and modify reports in the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
10. Representations and Warranties and Disclaimer
You represent and warrant to Brightback that (i) you have full power and authority to enter into this TOS; (ii) you own all User Content that you upload or post, or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Brightback to perform its obligations and exercise its rights) in connection with the Services without obtaining any further releases or consents; (iii) your User Content and other activities in connection with the Service, and Brightback’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does your User Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; (iv) you are eighteen (18) years of age or older, and (v) you have provided true, accurate, and correct information to Brightback in connection with your account creation and use of the Service. THE SERVICE, INCLUDING THE SITE AND BRIGHTBACK’S CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND BRIGHTBACK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BRIGHTBACK DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, OR WILL WORK WITH OR NOT INTERRUPT OR DAMAGE YOUR THIRD PARTY SERVICE OR YOUR USER CONTENT (INCLUDING ANY CONTENT YOU MAY STORE ON YOUR THIRD PARTY SERVICE), AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM BRIGHTBACK OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BRIGHTBACK OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
You have the right to terminate your account at any time after the expiration of your initial subscription term (Monthly/Annual/Other) as specified by you during your enrollment for the Service. Your termination will be effective as of 11:59 pm US Pacific Time (PT) on the last day of the last paid period. Brightback reserves the right to modify, suspend, or discontinue the Service (or any part thereof) and remove and discard any of your User Content in the Service, without liability and for any reason, including if Brightback believes that you have violated this TOS, or if you do not accept and agree to be bound by any modification to this TOS. Brightback will use good faith efforts to provide reasonable contemporaneous notice to you prior to suspension or termination of your account by Brightback. All of your User Content on the Service may be permanently deleted by Brightback upon any termination of your account in its sole discretion.
If this Agreement expires or terminates and you subsequently request to access the Services to extract your User Content from the Services (and provided that Brightback did not terminate the Agreement for cause), you agree that you will enter into a new subscription agreement with Brightback for (i) a period of one month. You will pay to Brightback the fees applicable to such new subscription for the Services based on the fees that were most recently in effect for your expired or terminated subscription.
12. Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL BRIGHTBACK BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, OR (B) FOR ANY DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS. YOU ACKNOWLEDGE AND AGREE THAT BRIGHTBACK IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD BRIGHTBACK LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE SITE OR SERVICE, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. TO THE EXTENT THAT THE LAWS OF SUCH JURISDICTIONS APPLY, BRIGHTBACK’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
13. Indemnification and Release
You will defend, indemnify, and hold harmless Brightback from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS; any of your User Content, your other access, contribution to, use or misuse of the Service; Your Site and/or Your End Users; or your violation of any applicable laws, rules, or regulations. Brightback will provide notice to you of any such claim, suit or demand. Brightback reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Brightback defense of such matter. If you are a California resident, you 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 favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
14. Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS, REQUIRES YOU TO ARBITRATE DISPUTES WITH BRIGHTBACK AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. If you have any concerns with the Service, please contact firstname.lastname@example.org. If Brightback is unable to resolve your issue, Brightback and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
References to ‘Brightback’, ‘you’, and ‘us’ include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this TOS, you and Brightback are each waiving the right to a trial by jury or to participate in a class action. This TOS evidence a transaction in the interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this TOS.
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 Brightback should be addressed to Brightback, Inc. c/o Cogency Global Inc., 850 New Burton Road, Suite 201, Dover, DE 19904 (“Arbitration Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If Brightback and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or Brightback may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Brightback or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Brightback is entitled.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, ‘AAA Rules’) of the American Arbitration Association (“AAA”), as modified by this TOS, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address. The arbitrator is bound by the terms of this TOS. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless Brightback and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is 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. 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. Brightback will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA Rules.
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND BRIGHTBACK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Brightback agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. Notwithstanding any provision in this TOS to the contrary, we agree that if Brightback makes any future change to this arbitration provision (other than a change to the Arbitration Notice Address) while you are a user of the Services, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Brightback of your claim in accordance with the procedure set forth below.
Brightback will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Brightback’s Copyright Agent at email@example.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
5 3rd Street, Suite 600
San Francisco, CA 94103
In accordance with the DMCA and other applicable law, Brightback has adopted a policy of terminating, in appropriate circumstances and at Brightbacks’ sole discretion, users who are deemed to be repeat infringers. Brightback may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Assignment. You may not assign this TOS without the prior written consent of Brightback, but Brightback may assign or transfer this TOS, in whole or in part, without restriction. Governing Law. This TOS will be governed by the laws of the United States and the State of California without regard to the principles of conflicts of law (except with respect to federal preemption principles). Unless otherwise elected by Brightback in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located within San Francisco County, California for the purpose of resolving any dispute relating to your access to or use of the Service not subject to arbitration, as set forth above. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this TOS must be filed within six (6) months after such claim or cause of action arose or be forever barred.
Entire Agreement. The failure of Brightback to exercise or enforce any right or provision of this TOS will not be a waiver of that right. You acknowledge that this TOS is a contract between you and Brightback, even though it is electronic and is not physically signed by you and Brightback, and it governs your use of the Service and takes the place of any prior agreements between you and Brightback. If any provision of this TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this TOS remain in full force and effect.
Marketing. Brightback reserves the right to use your name and/or company name, logo, Sites and trademarks and to identify you as a Brightback user or customer, and for other similar marketing or promotional purposes on Brightback’s website and in other communications and collateral materials provided to with existing or potential Brightback customers, partners, and investors. To decline Brightback this right you need to email firstname.lastname@example.org stating that you do not wish to be used as a reference.
Modifications. Brightback may change this TOS from time to time. If we do this, we will indicate at the top of this page the date these terms were last revised and if applicable, we will post the material changes to this TOS on this page. We will also use commercially reasonable efforts to notify you, either through the Service user interface, in an email notification to the email provided by you in connection with the Service, or through other reasonable means. Any such changes will become effective upon the earlier of (a) your use of the Site and/or Service with actual knowledge of the change, or (b) fifteen (15) days after they are posted. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new TOS, provided that disputes arising hereunder will be resolved in accordance with the TOS in place at the time the facts giving rise to the dispute occurred. Notwithstanding the generality of the foregoing, you understand and acknowledge that you are agreeing to arbitrate disputes arising hereunder (as described in further detail under the heading “Dispute Resolution By Binding Arbitration”), and that the terms of our Arbitration Agreement will not be modified without your express agreement.