Brightfox - Terms of Service
Last Updated: 9/20/22
Important Notice Regarding Arbitration
Changes to Terms and Services
Our Services are evolving, and hence we may update them and the Terms from time to time. If we modify the Terms, we’ll let you know either by posting the updated Terms within the Services or through other communications. It’s important that you review the Terms whenever we update them or when you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then you may not use the Services anymore and you are prohibited from doing so. We may, at our sole discretion, change or discontinue all or any part of the offerings we provide via our Services, at any time and without notice.
Accessing the Services
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. Brightfox does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. Brightfox reserves the right to modify, revise, or remove the Services we provide, including the Site and App, at Brightfox’s sole discretion without notice. Brightfox may restrict access to some parts of the Services. Brightfox will not be liable for any outages to the Services that may occur, for whatever reason. You acknowledge that Brightfox may establish general practices and limits concerning use of the Services, including the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on Brightfox’s or its third-party service providers’ servers on your behalf. You agree that Brightfox has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You acknowledge that Brightfox reserves the right to terminate Accounts (as defined below) that are inactive for an extended period of time. You further acknowledge that Brightfox reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Who May Use the Services?
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. You hereby grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, sub-licensable (through multiple tiers), fully-paid, royalty-free license to use, copy, modify, create derivative works based upon, and otherwise exploit for any purpose the Feedback you provide us.
The Services may contain or be provided together with open source software. Each item of open source software is subject to its own license terms. If required by any license for particular open source software, Brightfox makes such open source software, and Brightfox’s modifications to that open source software (if any), available by written request to email@example.com. Copyrights to the open source software are held by the respective copyright holders indicated therein.
Special Note for International Use; Export Control
Brightfox is headquartered in the United States. If you access or use the Services from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction. Software available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls. No software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using any software underlying the Services is at your sole risk.
Content Ownership, Responsibility and Removal
Definitions: For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Users (including you) provide to be made available through the Services including without limitation, any reviews, ratings, and comments you provide. For clarity, Content includes without limitation User Content.
Our Content Ownership: Brightfox does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, as between you and Brightfox, Brightfox is the sole owner of and will retain ownership of all right, title, and interest in the Services and Content, including all underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, documentation, aggregate data related to the Services, all improvements, modifications or enhancements to (or derivative works of) the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You: By making any User Content available through the Services you hereby grant to Brightfox a perpetual, irrevocable, non-exclusive, transferable, worldwide, royalty-free, fully paid license, with the right to sublicense (through multiple tiers), to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services.
Your Responsibility for User Content: You are solely responsible for all your User Content. You represent and warrant that: (i) you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms, and (ii) neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Brightfox on or through the Services will infringe, misappropriate, or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Rights in Content Granted by Brightfox: Subject to your compliance with these Terms, Brightfox grants you a limited, non-exclusive, non-transferable license, with no right to sublicense, to download, view, copy, display, and print the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
Third-Party Content: Under no circumstances will Brightfox be liable in any way for any content or materials of any third parties (including Users), including for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any such Content. You acknowledge that Brightfox does not pre-screen Content, but that Brightfox and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Services. Without limiting the foregoing, Brightfox and its designees will have the right to remove any Content that violates these Terms or is deemed by Brightfox, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
Your Representations and Warranties
By using the Services, you expressly represent and warrant that your use of the Services is solely for your personal use. When using the Services, you agree to comply with all applicable laws. By using the Services, you agree, represent, and warrant that:
- You are eligible to use the Services, based on the requirements outlined in the section entitled “Who May Use the Services.”
- You will only use the Services for lawful purposes, using only authorized means; you will not use the Services for sending or storing any unlawful material or communications or for deceptive or fraudulent purposes.
- You will not use the Services, or any Content accessible through the Services, for any commercial purpose, including but not limited to competing with Brightfox services.
- You will not create or compile, directly or indirectly, any collection, compilation, or other directory from the Content displayed through the Services except for your personal, noncommercial use.
- You will keep secure and confidential your Account password or any identification credentials we provide you which allows access to the Services.
- You will only use the Services for your own use and will not resell the Services to a third party.
- You will not conduct any systematic retrieval of data or other Content from the Services, and you will not copy any Content displayed through the Services for republication in any format or media.
General Prohibitions and Enforcement Rights
You agree not to do any of the following:
- use, display, mirror or frame the Services or any individual element within the Services, Brightfox’s name, any Brightfox trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Brightfox’s express written consent;
- use the Services in any manner that violates federal, state, local, or international law or regulation, including, without limitation, any laws regarding related to the export of data or software to and from the US or other countries;
- access, tamper with, or use non-public areas of the Services, Brightfox’s computer systems, or the technical delivery systems of Brightfox’s providers;
- impersonate or attempt to impersonate Brightfox, an Brightfox employee, contractor or agent, another User, or any other person or entity;
- attempt to probe, scan or test the vulnerability of any Brightfox system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Brightfox or any of Brightfox’s providers or any other third party (including another User) to protect the Services;
- use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any material on the Services;
- attempt to gain unauthorized access to, damage, disrupt, or interfere with any parts of the Services, or any server, computer or database connected to the Services;
- attempt to decipher, decompile, disassemble or reverse engineer the Services (including the App) or any of the software used to operate the Services;
- collect or store any personally identifiable information from the Services; and/or
- encourage or enable any other individual to do any of the foregoing.
For some activities related to the Services, Brightfox may permit you to use a device equipped with an active connection to an internet service provider to access your Brightfox Accounts and policies, and to perform certain transactions as available. To facilitate this, you may be given the option to sign, consent to, or agree to certain documents including, but not limited to, these Terms, policies, quotes, updates, notifications, or other information that you request, transaction receipts, documents requiring your signature, or any other documents (“Communications”) electronically by either checking the appropriate box or engaging in a similar online process as instructed online. You agree that by checking the appropriate box within or adjacent to the applicable Communication or engaging in a similar online electronic consent process, you are providing your electronic signature and agree to be bound by the terms and provisions in such Communication just as if you had signed your name to a paper document.
Payments and Payment Services
Account Balance and Expiration of Funds. Brightfox requires users to maintain funds within their Account (“Account Balance”) from which deductions are made when Services are utilized. Transfers of money into the Account Balance are referred to in these Terms as a “Purchase.” As described more below, in some cases those Purchases are initiated by you, and in some cases those Purchases are initiated by us, for instance when your Account Balance falls below zero. Thus your Account Balance consists of the total amount of the Purchases (minus, of course, any utilization of those amounts through your use of the Services) plus, in certain cases, “Bonus Amounts” that we may add to your account balance at our discretion (for instance when you refer new users to us or when you choose package deals we may offer from time to time). When you utilize the services the amounts contributed by you as Purchases are drawn down first before Bonus Amounts can be spent toward the Services. All funds in the Account Balance (whether Purchased by you or added as a bonus amount by us) expire within one year from time they were added to the account balance.
General Payment Terms
When you make a Purchase we may allow payments through a variety of different methods, including but not limited to credit cards, debit cards, bank transfers, and other payment platforms that we may choose to authorize and integrate (such as Google Pay, Apple Pay, etc.) (“Payment Methods”). A valid and up-to-date Payment Method must always be on file at all times in order for Services to be provided. When you choose to make a Purchase, your Payment Method will be charged for the amount (and, if applicable, on the schedule) that was presented to you at the time of Purchase, plus any sales or similar taxes that may be imposed on that payment. You hereby authorize us to charge your Payment Method for those Purchases. You understand and agree that, by signing up for a paid version of the Services (or by purchasing any other feature, product, subscription, credit, or service that we may make available through the services), you will be authorizing Brightfox and our payment processor to collect, store, transfer, and charge your payment method on file for the agreed upon amount of that transaction. If your primary Payment Method is determined to be expired, invalid, or otherwise not able to be charged, you agree that we may use a secondary payment method in your Account, if available. We reserve the right to revoke access to any feature, product, or service that you have purchased in the event that we are unable to charge your Payment Method for the Purchase that you made. Charges paid by you are final and non-refundable, unless otherwise determined by Brightfox. Prices of our Services, as well as the hours during which they are available, are subject to change at all times.
Automatic Charges. Certain Brightfox services and features, including but not limited to tutoring and instruction, are only available when you have an Account Balance that contains sufficient funds to cover the cost of the service. You acknowledge and agree that, in order avoid interruption to your use of the Services, every time your Account Balance falls below zero, we will automatically charge your Payment Method a “top up” charge to bring your Account Balance above zero, along with a processing fee (together the “Top Up Charge”). The amount of the Top Up Charge may change over time, but will be posted and available in our Brightfox Policies. In the event that a Top Up Charge is not successful (e.g. your payment method is declined), we may choose at our discretion whether to provide future scheduled services to you, and in the event that we do so, you will seek payment from you for those services, and you hereby agree to make such payment. You may not opt out of the Top Up Charge, though you are free to terminate your Account with us at any time, as described below.
Promotions and Discounts. Brightfox may offer discounts on its Services (“Promotions”) from time to time, which may result in different amounts charged for the same or similar feature, product, or service. Any applicable sales and use taxes and services fees will be calculated based on the discounted value after the Promotion is applied. Certain Promotions may only be redeemed once you achieve a specified minimum fee threshold, and any sales or use taxes or service fees do not count towards achieving such threshold. Unless otherwise stated by us in writing, you may only use one Promotion at a time and cannot combine Promotions or any other discounted offers. You may not sell or transfer your Promotion. We may modify or cancel any Promotion at any time. If you violate these Terms, Brightfox reserves the right to cancel your Promotion.
Use of Service by Authorized Users
You acknowledge and agree that the default setting in our Services allows any Authorized User associated with your Account to choose to schedule and utilize our Services, which will have the effect of reducing your Account Balance. You additionally acknowledge and agree that the default setting in our Services allows any Authorized Users to choose to cancel sessions that the have scheduled, which, depending upon the timing and reason of the cancellation could result in the Account Balance being reduced despite no Services being rendered. You may change the default setting so as to disallow these actions of Authorized Users if you choose. You can read about our current cancellation policies in the Brightfox Policies.
Refunds and Transfers
We do not allow refunds of any amount (Purchase amounts or Bonus Amounts) contained in the Account Balance. However, portions of your Account Balance that were funded directly by you (i.e. the Purchase Amounts) can be transferrable to another Brightfox clients’ account if you desire. Bonus Amounts are not transferrable.
Under the Digital Millennium Copyright Act of 1998 (the "DMCA") if you believe in good faith that any content on the Services infringes your copyright, you may send us a notice requesting that the content be removed. The notice must include: (a) your (or your agent's) physical or electronic signature; (b) identification of the copyrighted work on our Site that is claimed to have been infringed (or a representative list if multiple copyrighted works are included in one notification); (c) identification of the content that is claimed to be infringing or the subject of infringing activity, including information reasonably sufficient to allow us to locate the content on the Services; (d) your name, address, telephone number and email address (if available); (e) a statement that you have a good faith belief that use of the content in the manner complained of is not authorized by you or your agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that you or your agent is authorized to act on behalf of the copyright owner. You may read more information about the DMCA here.
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent (identified below): (a) your physical or electronic signature; (b) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (c) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (d) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal courts located within the state of California. and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Brightfox will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Notices and counter-notices should be sent to our Copyright Agent, at 2005 Crow Canyon Place, Suite 162, San Ramon, CA, 94583 Attn: Legal, or at firstname.lastname@example.org. There can be penalties for false claims under the DMCA. We suggest that you consult your legal advisor before filing a notice or counter-notice.
In accordance with the DMCA and other applicable law, Brightfox has adopted a policy of terminating, in appropriate circumstances and at Brightfox’s sole discretion, Users who are deemed to be repeat infringers. Brightfox may also at its sole discretion limit access to the Services and/or terminate the registrations of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
The following disclaimers are made on behalf of Brightfox, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE DO NOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. WE DO NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, OR ERROR-FREE, OR WILL MEET YOUR REQUIREMENTS, THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DISCLAIM LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, CONNECTIVITY AND AVAILABILITY OF THE SERVICES. WE ARE NOT RESPONSIBLE FOR ANY RESULTS OR ADVICE PROVIDED VIA THE SERVICES AND DISCLAIM ALL LIABILITY WITH RESPECT THERETO. While Brightfox Education is confident in the skills and teaching ability of its instructors, we make no promises or warranties with regard to a any individual’s performance in a Brightfox class, their regular daytime schooling, or on a third party exam (including, but not limited to the SAT, ACT, and AP exams) as a result of our services provided.
To the extent permitted by law, you agree to indemnify, protect and hold Brightfox and its parents, subsidiaries, affiliates, and assigns, and their respective officers, directors, employees, agents, representatives and service providers harmless from any and all claims, demands, damages, suits, losses, liabilities and causes of action (including without limitation, the cost of defense, attorneys' fees, as well as the payment of any final judgment rendered against or settlement agreed upon by Brightfox or its parent, subsidiary and/or affiliated companies) arising directly or indirectly from, as a result of, or in connection with: (i) your User Content; (ii) your failure to comply with any of these Terms; (iii) your violation of any applicable laws, rules, or regulations related to your use of the Services; and (iv) your use of the Services. Brightfox reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Brightfox in asserting any available defenses. Brightfox will provide notice to you of any such claim, suit, or proceeding. Brightfox reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and you agree to cooperate with any reasonable requests assisting Brightfox’s defense of such matter. You may not settle or compromise any claim against the indemnified parties without Brightfox’s written consent. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or releasing party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Limitation of Liability
NEITHER BRIGHTFOX NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM YOUR USE OF, OR INABILITY TO USE, THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BRIGHTFOX OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL BRIGHTFOX’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED ONE HUNDRED US DOLLARS ($100). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BRIGHTFOX AND YOU.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMERS”, “INDEMNITY” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
In the event of an emergency involving one of your Authorized Users, you hereby designate Brightfox Education staff or their designee to act on your behalf while participating in educational services at Brightfox Education. Brightfox Education will attempt, if feasible to contact you or a designated emergency contact at the time of any such incident to inform you or your designee of the situation. Students shall be transported to the emergency room only via ambulance. You hereby agree to assume financial responsibility for hospitalization, medical services, emergency transportation and surgery administered. You hereby waive and release Brightfox Education of any and all loss, claim, or liability, which may result from our actions in the event of such an emergency.
Brightfox makes no representation that the Services are appropriate or available for use in your jurisdiction. If you choose to access the Services, you do so on your own initiative and are responsible for compliance with any applicable local, state, and federal laws, rules and regulations.
Reliance on Information Posted
The information presented throughout the Services is made available for general information purposes only. Brightfox does not warrant the accuracy, completeness, or usefulness of the information. Any reliance you place on such information is at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor to, or User of, the Services, or by anyone who may be informed of any of its contents.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products, or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
You agree that you shall not, for any reason, either directly or indirectly solicit or attempt to solicit the educational services of any employees, staff, contractors, or tutor(s) currently employed or engaged by Brightfox for academic services.
Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from Brightfox or anyone calling on its behalf, you expressly consent to be contacted by Brightfox and anyone calling on its behalf for any and all purposes arising out of or relating to this Agreement or your use of the Services, at any telephone number, or physical or electronic address you provide or at which you may be reached. Standard text and data rates may apply. You agree we may contact you in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using an auto-telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via text. You consent to receive SMS messages (including text messages), calls and messages (including prerecorded and artificial voice and autodialed) from Brightfox, its agents, representatives, affiliates or anyone calling on its behalf at the specific number(s) you have provided to Brightfox, or numbers we can reasonably associate with your Account (through skip trace, caller ID capture or other means), with information or questions about your Account or use of the Services. You certify, warrant and represent that the telephone numbers that you have provided to us are your correct and current contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us and agree to promptly alert us whenever you stop using a particular telephone number. Your cellular or mobile telephone provider will charge you according to the type of plan you carry. You also agree that we may contact you by email, using any email address you have provided to us or that you provide to us in the future. We may listen to and/or record phone calls between you and our representatives without notice to you as permitted by applicable law. For example, we may listen to and record calls for quality monitoring purposes. You consent to receive communications from us in electronic form should we so elect, including any and all disclosures and other communications that are required by law.
Governing Law and Venue
Except as otherwise provided in the Dispute Resolution provision below, these Terms will be governed by the laws of the State of California, without regard to its conflict of laws provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Company each hereby agree that each submit to the personal and exclusive jurisdiction of the state and federal courts located within the Northern District of California.
Dispute Resolution by Binding Arbitration
Please read this section carefully as it affects your rights.
a. Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Company, whether arising out of or relating to these Terms (including any alleged breach thereof), the Service, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and Company are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution. Company is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, 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 Company should be sent to Brightfox, Inc. 2005 Crow Canyon Place, Suite 162, San Ramon, CA, 94583 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Company and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Company or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Company is entitled.
d. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Company 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 will be made by AAA. If your claim is for $10,000 or less, Company agrees 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 will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Company will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Company will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
f. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
g. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.
h. Future Changes to Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, Company agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Company written notice within thirty (30) calendar days of the change to the 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 Arbitration Agreement as of the date you first accepted these (or accepted any subsequent changes to these Terms).
You agree that Company, in its sole discretion, may suspend or terminate your Account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including for lack of use or if Company believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service, may be referred to appropriate law enforcement authorities. Company may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms may be effected without prior notice, and acknowledge and agree that Company may immediately deactivate or delete your Account and all related information and files in your Account and/or bar any further access to such files or the Service. Further, you agree that Company will not be liable to you or any third party for any termination of your access to the Service.
Any notices or other communications provided by Brightfox under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Waiver of Rights
Brightfox’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Brightfox. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Except as otherwise stated herein or otherwise amended and agreed to by you and Brightfox, these Terms constitute the entire and exclusive understanding and agreement between Brightfox and you regarding your use of the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Brightfox and you regarding the use of the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect - except as otherwise described in Dispute Resolution by Binding Arbitration section. You may not assign or transfer these Terms, by operation of law or otherwise, without Brightfox’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will have no legal effect. Brightfox may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California 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 (a) via email at firstname.lastname@example.org; (b) in writing at: Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834; or (c) by telephone at (800) 952-5210 or (800) 326-2297 (TDD). Sacramento-area consumers may call (916) 445-1254 or (916) 928-1227 (TDD). You may contact us at: 925-266-1800 or at email@example.com.
Brightfox is committed to the principles of equal employment opportunity. Applications are considered for all positions without regard to race, sex, sexual orientation, ethnicity, religion, national origin, age, disability (so long as such disability can be reasonably accommodated), or any other status protected by applicable law. Brightfox encourages all qualified applicants to apply.
If you have any questions about these Terms or the Services, please contact Brightfox at: firstname.lastname@example.org.