Last Updated Date: January 28, 2013
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR SERVICES, BY ACCESSING ANY CONTENT FROM OR ON THE SITE OR THROUGH THE SERVICES, OR BY REGISTERing FOR AN ACCOUNT AND SUBMITTing YOUR CREDIT CARD INFORMATION (INCLUDING PROVIDING YOUR CREDIT CARD FOR SOMEONE ELSE, FOR EXAMPLE A PARENT OR GUARDIAN SUBMITTING CREDIT CARD INFORMATION ON BEHALF OF A CHILD), YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE SITE. YOU ACKNOWLEDGE THAT BY SUBMITTING YOUR CREDIT CARD INFORMATION YOU ARE SUBSCRIBING TO A SERVICE FOR WHICH YOU WILL BE BILLED A RECURRING MONTHLY CHARGE UNTIL YOUR SUBSCRIPTION IS CANCELLED OR TERMINATED IN ACCORDANCE WITH THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SERVICES OR CONTENT.
"Content" means text, graphics, images, music, software, audio, video, information or other materials that Brightstorm makes available through the Site or Services, including any works of authorship licensed from a third party.
"Member" means a person that completes Brightstorm's account registration process, as described under the "Account Registration" section below.
Brightstorm reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms, at any time and without prior notice. If we modify these Terms we will post the modification on the Site or provide you with notice of the modification. We will also update the "Last Updated Date" at the top of these Terms. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services.
The Site and Services are intended solely for persons who are 13 or older. Any access to or use of the Site or Services by anyone under 13 is expressly prohibited. By accessing or using the Site or Services you represent and warrant that you are 13 or older.
In order to access certain features of the Site, Services, and Content you must register to create an account ("Account") and become a Member with a paid subscription. You can do this via the Site or through your account with certain third-party social networking services such as Facebook (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access. You acknowledge and agree that by registering an Account and subscribing to the Services you authorize Brightstorm to automatically bill your credit card on a recurring monthly basis during your subscription. If you create an Account and become a Member without purchasing a subscription you will not be able to access the Site, Services, and Content that Members with paid subscriptions can access.
When you register for an Account and purchase a subscription you will be required to provide customary billing information such as name and credit card number, expiration date, and security code. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Brightstorm reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete, or we are otherwise unable to charge your credit card. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Brightstorm of any unauthorized use of your Account by contacting Customer Support.
When you register for an Account and purchase a subscription, Brightstorm may sometimes offer a [n-day/week/month] period beginning immediately when you become a Member and purchase a subscription and allows you to explore the Site, Services, and Content for evaluation purposes ("Trial Period"). Only one Trial Period is available per Account or per Member. If you have created an Account and purchased a subscription with a Trial Period then you are not eligible for another Free Trial if you reactivate your subscription or register for another Account. After the Trial Period your credit card will be automatically charged a recurring monthly charge for your subscription, which you agree to pay until you cancel your subscription or we suspend or terminate your Account. If you do not cancel your subscription by the end of the Trial Period then you will automatically be charged the subscription fee and will be subject to recurring monthly charges until you cancel your subscription. The recurring charge will be made on the calendar day corresponding to the initial charge to your credit card after the Trial Period ends, or the last day of the month if a month does not have that date. If your subscription begins without a Trial Period, your credit card will be charged the recurring amount for your subscription each month on the calendar day corresponding to the day you purchased your subscription, or the last day of the month if a month does not have that date. All dates and times in these Terms are Pacific Time. Brightstorm has no obligation to notify you of the end of the Trial Period or when a Trial Period becomes a paid subscription. You hereby acknowledge and agree that it is your sole responsibility to cancel your subscription prior to the end of the Trial Period and that not cancelling your subscription prior to the end of the Trial Period will result in your payment of the first month of your subscription as well as subsequent recurring charges until you cancel your subscription. Brightstorm has the right to change the subscription fee amount with prior notice to you. We do not need to provide notice to you for changes in billing amounts that correspond to the completion of a promotional offer.
All fees are non-refundable and non-transferable except as expressly provided in these Terms. We do not offer refunds for partial months or for subscriptions that are purchased but not used. All fees and applicable taxes, if any, are payable in United States dollars. It is your sole responsibility to keep a record of your login credentials to access your Account and the Site, Services, and Content. No refunds will be given for lost login credentials.
The only way to cancel your Account or subscription or to manage your billing information is by accessing your Account page at http://www.brightstorm.com/account. You must be logged in to access your Account information. We cannot process cancellations or billing information changes through Customer Support, emails, or telephone calls. For more information about cancellation, see the section titled "Termination and Account Cancellation" below.
Brightstorm may offer a redemption code that will provide a discount on your subscription. These redemption codes may only be redeemed at our Site. Redemption codes may only be used once and cannot be combined with other codes. The validity of redemption codes may depend on the status of the user who redeems it. For example, an existing subscriber may not redeem a code providing a discount for a new subscription. Redemption codes may have an expiration date, after which the code will not be valid or accepted by Brightstorm. Redemption codes are provided by Brightstorm only, and you agree that you will not share codes with others, including, but not limited to, emailing codes to friends or family, sharing codes on social networking sites, or posting codes to websites that are not our Site unless Brightstorm has provided written approval via email or on our Site to do so. Brightstorm may invalidate a code in its sole discretion. The discount provided via the redemption code is only valid during your paid subscription. If you cancel your subscription you also cancel the discount from the redemption code. Reactivating your subscription will not reactivate the discount from the code, nor will it allow you to redeem a code for a discount for new subscribers.
The Site, Services, and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Services, and Content, including all associated intellectual property rights, are the exclusive property of Brightstorm and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services, and Content.
Licenses Granted by Brightstorm
Subject to your compliance with the terms and conditions of these Terms, Brightstorm grants you a limited, non-exclusive, non-transferable license: (i) to view and print any Brightstorm Content solely for your personal and non-commercial purposes; and (ii) to view any Content to which you are permitted access based on your status as a visitor or a Member, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, embed or otherwise exploit the Site, Services, or Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Brightstorm or its licensors, except for the licenses and rights expressly granted in these Terms.
You agree not to do any of the following:
Brightstorm will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Brightstorm may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Brightstorm has no obligation to monitor your access to or use of the Site, Services, or Content or to review or edit any Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
The Site or Services may contain links to third-party websites or resources. You acknowledge and agree that Brightstorm is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the Content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Brightstorm of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products, or services on or available from such websites or resources.
Termination and Account Cancellation
If you breach any of these Terms, Brightstorm will have the right to suspend or disable your Account and subscription or terminate these Terms, at its sole discretion and without prior notice to you. Brightstorm reserves the right to revoke your access to and use of the Site, Services, and Content at any time, with or without cause and without a refund or proration of the subscription fee. If, in Brightstorm's sole determination, your usage of the Site and Services indicates to Brightstorm that you have shared your Account credentials to others allowing individuals other than you to access the Site, Services and Content, Brightstorm reserves the right to suspend your access to the Site, Services, and Content or terminate your Account and subscription without a refund or proration of the subscription fee. You may cancel your subscription at any time by accessing your Account page at http://www.brightstorm.com/account, not by contacting Customer Support. If you elect to cancel your subscription you will be able to access the Site, Services, and Content until the end of the billing period during which you cancelled your subscription.
THE SITE, SERVICES, AND CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, BRIGHTSTORM EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. BRIGHTSTORM MAKES NO WARRANTY THAT THE SITE, SERVICES, APPLICATION OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. BRIGHTSTORM MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR COLLECTIVE CONTENT PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BRIGHTSTORM OR THROUGH THE SITE, SERVICES, APPLICATION OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
You agree to defend, indemnify, and hold Brightstorm, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Services, or Content, or your violation of these Terms.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES, AND CONTENT REMAINS WITH YOU. NEITHER Brightstorm NOR ANY OTHER person or entity involved in creating, producing, or delivering the Site, Services, or Content will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS arising ouT of or in connection with thESE TERMS or from the use OF or inability to use the SITE, ServiceS, OR CONTENT, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not BRIGHTSTORM 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.
In no event will Brightstorm'S aggregate liability arising out of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES, OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO BRIGHTSTORM FOR USE OF THE SITE, SERVICES, OR CONTENT, IF YOU ARE REGISTERED FOR PAID ACCOUNT, OR ONE HUNDRED DOLLARS ($100), IF YOU ACCESSED THE SITE, SERVICES, OR CONTENT AS AN UNREGISTERED USER, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BRIGHTSTORM AND YOU. 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.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Brightstorm used herein are trademarks or registered trademarks of Brightstorm. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
These Terms constitute the entire and exclusive understanding and agreement between Brightstorm and you regarding the Site, Services, and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Brightstorm and you regarding the Site, Services, and Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without Brightstorm's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Brightstorm may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Brightstorm via email (in each case to the address that you provide); or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
You and Brightstorm agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site, Services, or Content (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action"). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Brightstorm are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Brightstorm otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Brightstorm otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Brightstorm submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award of damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Brightstorm will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Brightstorm will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the "Modification" section above, if Brightstorm changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to www.brightstorm.com/) within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above or in the date of Brightstorm's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Brightstorm in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of Brightstorm to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that 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 Brightstorm. 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. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms, please contact Brightstorm at firstname.lastname@example.org or Brightstorm, Inc., 2103 Landings Dr., Mountain View, CA 94043.