Terms of Service
Welcome to BrightBytes, the online service of BrightBytes, Inc. (“BrightBytes,” “we,” or “us”). This page explains the terms by which you may use and otherwise interact with our online website, applications and software (collectively, “Applications”) provided on or in connection with BrightBytes’ proprietary online service, technology, and infrastructure for the distribution of tools and technologies to enable users to access, use, and analyze research, data, materials, and information relevant to the education market (such service, technology, and infrastructure, the “Clarity Platform”) (collectively the website, Applications and Clarity Platform shall be referred to as the “Service”).
By accessing or using the Service, checking the box indicating your acceptance or by executing a Service Agreement, Partnership Agreement, Data Sharing Agreement, or a Sales Order or an Order Form that references these Terms, you signify that you have read, understood, and agree to be bound by these Terms of Service (the “Terms”), and to the collection and use of your information as set forth in the BrightBytes Privacy Policies, whether or not you are a registered user of our Service. We reserve the right to make unilateral modifications to these terms and will provide notice of these changes as described below. These Terms apply to all users and other visitors to the Service (“Users”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Capitalized terms that are not defined in these Terms are as defined in the Order Form.
1. Relationship to Other Agreements
1.1 License and Service Agreements. Depending on the services or materials you will be providing to, or receiving from, BrightBytes, other terms may apply in addition to this Agreement. If you are a Partner who is or will be providing frameworks for analysis of data and information via the Clarity Platform (“Frameworks”), the terms of your separate written agreement with us (each a “Partnership Agreement”) will apply. If you are a Customer of BrightBytes who is or will be purchasing access to Frameworks or other Applications via the Clarity Platform, the terms of your Order Form, along with any addendum thereto, such as a Data Sharing Addendum (each an “Addendum”), will apply. Throughout these Terms, “the Agreement” means these Terms and the terms of your Order Form, Partnership Agreement, Data Sharing Agreement, and any other agreement entered between you and BrightBytes, as applicable.
1.2 Order of Precedence
In the event of a conflict between the terms of your Partnership Agreement, Order Form, or any Addendum, as applicable, the terms of such agreement will take precedence over the terms set forth in these Terms.
2. Use of Our Service
BrightBytes provides a website, software and services to assist school districts, schools, and other educational partners access, use and analyze data with the goal of improving student learning outcomes.
This is a contract between you and BrightBytes. You must read and agree to these terms before using the BrightBytes Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with BrightBytes, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. By using the Service, or otherwise obtaining services from, or providing services to, BrightBytes, you affirm that you: (1) are at least eighteen (18) years of age or older; and (2) have read, understand, and agree to be bound by all the terms set forth herein and any other applicable terms.
2.2. BrightBytes Service
Subject to the terms and conditions of the Agreement, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, license to use the Service. BrightBytes may terminate this license at any time for any reason or no reason, subject to applicable terms in the Agreement.
2.3. Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the BrightBytes servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that BrightBytes grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xi) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other BrightBytes Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. BrightBytes shall have no liability for your interactions with other Users, or for any User’s action or inaction.
3.1 Definition. “Confidential Information” means any information marked or otherwise identified in writing by either you or us as proprietary or confidential or that, under the circumstances surrounding the disclosure, should be known to constitute proprietary or confidential information. Confidential Information of both parties shall include, without limitation, any amounts paid under, and the terms of, the Agreement, as well as information regarding either party’s business, strategies, plans, suppliers, clients, finances, business plans, product development, technology, and software. For the avoidance of doubt, BrightBytes’ Confidential Information shall include the proprietary aspects, designs, and features of the Service.
3.2 Duty of Confidentiality. Neither party will use the other’s Confidential Information without the other’s written consent as expressly permitted in the Agreement except for the purpose of exercising its rights or carrying out its obligations under the Agreement. Each party will disclose the other’s Confidential Information to its employees, agents, representatives, and consultants only on a need-to-know basis and subject to reasonable confidentiality obligations on such persons. Each party will protect the other’s Confidential Information using the same degree of care, but no less than reasonable care, to prevent the unauthorized use or disclosure of such Confidential Information.
3.3 Exclusions. The obligations set forth in this Section 2 will not apply to any information that: (i) was previously known to either party free of any obligation of confidentiality; (ii) is or becomes publicly available other than by means of unauthorized disclosure by either party; or (iii) is required to be disclosed pursuant to statute, regulation, or order of a court.
3.4 Remedies for Breach. The receiving party agrees that the disclosing party will be entitled to equitable relief, including injunction and specific performance, in the event of any breach or threatened or intended breach of the Agreement. Such injunctive relief shall not be the disclosing party’s exclusive remedy for any breach of the Agreement, but will be in addition to all other remedies available at law or in equity.
4. Representations and Warranties; Disclaimers
4.1 Mutual Representations and Warranties. Each party hereby represents, warrants, and covenants that: (i) it has full authority to enter into the Agreement; and (ii) the Agreement shall constitute a valid and binding obligation on such party, enforceable in accordance with the terms of each.
4.2 Limited Warranty by BrightBytes. BrightBytes hereby warrants that the Service will perform substantially in accordance with its documentation or specifications. The foregoing warranty shall not apply to performance issues of the Service: (i) caused by factors outside of our reasonable control; (ii) that result from any actions or inactions of you or any third parties; or (iii) that result from your data structure, operating environment, or equipment.
4.3 Limited Warranty by You. You hereby represent and warrant that you are the owner of or otherwise have the right to use and provide all materials furnished or licensed by you to us in connection with the Agreement, and that such materials do not now and will not at any relevant time infringe upon any third-party’s intellectual property rights.
4.4 Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN THIS SECTION 3, BRIGHTBYTES AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY OTHER MATERIALS OR SERVICES PROVIDED. BRIGHTBYTES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (i) THE USE OF THE SERVICE OR ANY SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (ii) THE SERVICE OR ANY MATERIALS OR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (iii) ERRORS OR DEFECTS WILL BE CORRECTED; (iv) THE SERVICE OR THE SERVER(S) THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (v) THE SERVICE OR ANY MATERIALS OR SERVICES WILL BE FREE FROM PROBLEMS ARISING FROM LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM THE UNAVAILABILITY OF, OR LACK OF PERFORMANCE BY THIRD-PARTIES NECESSARY FOR PROVIDING, THE SERVICE OR ANY MATERIALS OR SERVICES. THE SERVICE AND OTHER MATERIALS AND SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED BY BRIGHTBYTES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5. Limitations of Liability
5.1 Indirect Damages Waiver. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM BRIGHTBYTES’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BRIGHTBYTES AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, DATA, PROFITS, GOODWILL, OR OTHER ECONOMIC ADVANTAGE, EVEN IF BRIGHTBYTES HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, IN NO EVENT WILL BRIGHTBYTES OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY SUCH DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR ANY MATERIALS OR SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE OR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE
5.2 Liability Cap. IN NO EVENT WILL BRIGHTBYTES’ AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY RECEIVED BY BRIGHTBYTES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM UNDER THIS AGREEMENT AND AN APPLICABLE PARTNERSHIP AGREEMENT (AND IN THE CASE OF A PARTNERSHIP AGREEMENT, SUCH AMOUNTS WILL BE NET OF PAYMENTS TO PARTNER).
6.1 You agree to defend, indemnify and hold harmless BrightBytes and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of the Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) your willful misconduct; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
7. User Content
7.1 General. Certain of the Applications may allow you or your users to post content such as profile information, comments, questions, articles, and other content or information (any such materials you submit, post, display, or otherwise make available on the Service, “User Content”). We claim no ownership rights over User Content created, uploaded, or transmitted by you. The User Content you create remains yours; however, by sharing the User Content through the Service, you agree to allow others to view, edit, and share your User Content in accordance with this Agreement. However, BrightBytes may, in its sole discretion, remove any User Content shared via the Service.
7.2 Restrictions on User Content. You agree that neither you nor your users will post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. BrightBytes may reject or remove any User Content that we believe, in our sole discretion, violates these provisions.
7.3 Your Representations and Warranties Regarding User Content. In connection with User Content, you affirm, represent, and warrant the following: You have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use. Your User Content and BrightBytes’ use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights. BrightBytes may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise. To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
7.4 Disclaimer. We take no responsibility and assume no liability for any User Content that you or your users upload, post, send, or otherwise transmit via the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, presents health risks, or may otherwise be unsuited to your purpose, and you agree that BrightBytes shall not be liable for any damages you allege to incur as a result of your User Content.
7.5 User Content License Grant. By posting any User Content via the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to BrightBytes a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and BrightBytes’ (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content to the extent permitted through the functionality of the Service and under this Agreement.
8. DMCA Notice
8.1 General. Because we respect artist and content owner rights, it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
• An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
• Identification of the copyrighted work that you claim has been infringed;
• Identification of the material that is claimed to be infringing and where it is located on the Service;
• Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and email address;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agents, or law; and
• A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
8.2 Submission Information.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Address: 490 2nd St., Ste. 302
San Francisco, CA 94107
Telephone: (877) 433-4036
8.3 Knowing Misrepresentations. UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
8.4 Not Legal Advice. Please note that this procedure is exclusively for notifying us and our affiliates that your copyrighted material has been, or may have been, infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
8.5 Termination Policy. In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Service and terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
9. Payment Terms
9.1 Invoicing and Fees. BrightBytes will issue an invoice Customer for the fees for accessing and using the Service or for any services in accordance with the amounts set forth on the Order Form (“Fees”) to the accounts set forth on the Order Form, and Customer will pay BrightBytes the Fees according to the terms set forth below. Except to the extent not permitted by applicable law, all amounts paid hereunder are non-refundable and shall be deemed earned upon receipt.
9.2 Timing of Payments. Payments shall be made within thirty (30) days of the date of the invoice issued provided by BrightBytes. Without waiving or prejudicing any other rights or remedies, if Customer does not make payment in a timely manner, BrightBytes may suspend Customer’s access to the Applications and the Clarity Platform or the provision of services until such time as payments of the Fees are made current. BrightBytes will not be responsible for delays, costs incurred, or problems experienced by Customer due to the suspension of BrightBytes’s performance under this Section.
9.3 Taxes. Customer will, in addition to the other amounts payable under this Agreement, pay all federal, state, and local sales, use, VAT, or other taxes imposed by reason of transactions under this Agreement (other than taxes based on BrightBytes’s net income). If BrightBytes is required to pay any such taxes for which Customer is responsible, then the taxes will be billed to and paid by Customer. If Customer is required by law to withhold from any amount owed to BrightBytes, then the amount payable to BrightBytes will be increased to the extent necessary to ensure that, after such withholding, BrightBytes receives the net amount that it otherwise would have received in the absence of such withholding.
10. Term and Termination
10.1 Effective Date and Term. Unless earlier terminated as provide in this Section, this Agreement shall be effective as of the Effective Date set forth on the Order Form and shall continue through the Term set forth on the Order Form.
10.2 Termination for Convenience. BrightBytes may terminate this Agreement for any reason or for no reason by providing you at least thirty (30) days’ prior written notice.
10.3 Termination for Cause. Either party shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; or (b) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
10.4 Effect of Termination. The rights and obligations of BrightBytes and Customer that should, by their nature or their terms, survive any termination or expiration of this Agreement shall so survive. Upon any termination of this Agreement by BrightBytes for cause or Customer for convenience, all unpaid Fees for the then-current Term (if any) shall become immediately due and payable. Within five (5) days after termination of this Agreement, Customer shall return to BrightBytes or, upon BrightBytes's request, destroy, at Customer’s expense, all Confidential Information and materials containing any Confidential Information, including all copies thereof, and deliver to BrightBytes a certification, in writing signed by an officer of Customer, that the Confidential Information, and all copies thereof have been returned or destroyed, and their use discontinued. Nothing contained herein shall limit any other remedies that BrightBytes may have for Customer’s default nor relieve Customer of any obligations incurred before termination.
11. Governing Law, Arbitration and Class Action/Jury Trial Waiver
11.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. Each party hereby expressly and irrevocably consents to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief under this Agreement, or otherwise arising under or by reason of this Agreement.
11.2 Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from BrightBytes. For any dispute with BrightBytes, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that BrightBytes has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County, California, unless you and BrightBytes agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing BrightBytes from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property or other proprietary rights.
11.3 Class Action/ Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BRIGHTBYTES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
12.1 Independent Contractors. The relationship between you and BrightBytes under the Agreement is that of independent contractors only. Nothing in this Agreement will be construed so as to constitute a partnership, joint venture, or agency relationship. Neither party will have any power or authority to bind the other in any transaction with a third-party. Unless otherwise expressly agreed by the parties, the services rendered hereunder shall be on a nonexclusive basis and the party rendering them shall be free to accept other engagements at all times.
12.2 Notices. All notices, requests, claims, demands, and other communication under this Agreement may be delivered by any method chosen by the sender that positively establishes legally valid and admissible evidence of actual receipt by the named recipient. The sender shall bear the burden of establishing delivery with respect to the method chosen.
12.3 Integration; Modifications; Severability. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all other oral or written representations and understandings. Any additions or modifications to this Agreement must be made in writing and must be signed by the authorized representatives of both parties. If any provision of this Agreement is determined to be invalid or unenforceable, the remainder shall be enforceable to the maximum extent possible.
12.4 Assignment. Neither party may assign or transfer this Agreement without the prior written consent of the other party, except that either party may assign this Agreement without consent in connection with a merger, consolidation, restructuring, or sale of all or substantially all of its equity, business, or assets to which this Agreement relates.
12.5 Waiver. Neither the waiver by either party of a breach of or a default under any of the provisions of this Agreement, nor the failure of either party, on one or more occasions, to enforce any of the provisions of this Agreement, or to exercise any right or privilege hereunder will thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any of such provisions, rights, or privileges hereunder.
12.6 Compliance with Laws. Each party will comply with all federal, state, and local laws, rules, and regulations, as amended from time to time, applicable to such party’s performance of its obligations under this Agreement, including all applicable export laws, rules, and regulations of the United States and other applicable jurisdictions, and those related to data privacy.
12.7 Force Majeure. Neither party will be liable for any failure of performance hereunder or for damages caused by any delay or failure to perform hereunder if performance is made impracticable or impossible due to any occurrence beyond its control, including without limitation: acts of God, fires, floods, wars, riots or civil disorders, acts of a public enemy, sabotage, accidents, enactment or act of any government or governmental instrumentality (whether federal, state, local, or foreign, and whether valid or invalid), failure of technical facilities, and any other occurrence which would have a material adverse impact on a party’s ability to perform under this Agreement which is not reasonably within such party’s control.
12.8 Exclusion for Official Use. If you are a federal, state, or local government entity in the United States using the Service in your official capacity and legally unable to accept the controlling law, jurisdiction, or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, the Agreement and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of California (excluding choice of law).
These Terms were last modified on February 1, 2017.