Posted: April 26, 2017
This BrightHome, Inc. (“BrightHome”) Enterprise Services Agreement (the “Agreement”) governs access to the Services by you, the Customer (“Customer”), as well as any individual or entity (including employees, agents, and contractors) you allow to access and use the Services. This Agreement and the Order Form govern the use of the Services. As a condition of accessing the Services, you accept this Agreement as a Customer.
"Account Data" means the account and contact information submitted to the Services by Customer or End Users.
“Administrator” means the Customer-designated technical End User who administers the Services to End Users on Customer’s behalf. Administrators may be able to access, disclose, restrict or remove Customer Data in or from End User Accounts. Administrators may also have the ability to monitor, restrict, or terminate access to End User Accounts.
“Admin Account” means the administrative account provided to Customer by BrightHome for the purpose of administering the Services.
“Admin Console” means the online tool provided by BrightHome to Customer for use in administering the Services.
“Affiliate” means any entity that controls, is controlled by or is under common control with a Party, where “control” means the ability to direct the management and policies of an entity.
“Beta Services” means services or features identified as alpha, beta, preview, early access, or evaluation, or words or phrases with similar meanings.
“Customer Data” means Stored Data, Account Data, and messages, comments, structured data, photos, and any other content submitted to the Services, or created in the course of using the Services, by Customer or End Users.
“Effective Date” means the date of the Order Form.
“End Users means users of Customer’s Services account. End Users may include Customer’s and its Affiliate’s employees and consultants.
“End User Account” means a BrightHome hosted account established by Customer through the Services for an End User.
“Fees” means the amounts invoiced to Customer by BrightHome for the Services as described on the Order Form.
“Initial Services Term” means the term for the applicable Services beginning on the Provisioning Date and continuing for the duration set forth on the Order Form.
“Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
“Order Form” means the ordering document, or ordering page, for the Services.
“Provisioning Date” is the date upon which BrightHome makes the Services available to Customer.
“Renewal Term” means, unless otherwise agreed to in writing by the Parties, the renewal term following either the Initial Services Term, or a previous Renewal Term. Renewal Terms are set forth on the Order Form.
“Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services; or (ii) unauthorized third-party access to the Services.
“Services” means the services ordered by Customer and provided by BrightHome to Customer, which are described in the Order Form.
“Software” means the client software provided as part of the Services.
“Stored Data” means the files and data uploaded to, or created by, the Services using the Software by Customer or End Users.
“Subcontractor” means an entity to whom BrightHome subcontracts any of its obligations under this Agreement.
“Sub-processor” means an entity who agrees to process Stored Data on BrightHome’s behalf, or on behalf of another BrightHome sub-processor, in order to provide the Services.
“Taxes” means any sales, use, value added, goods and services, consumption, excise, local stamp, or other tax, (including but not limited to ISS, CIDE, PIS, CONFINS), duty or other charge of any kind or nature excluding tax that is based on BrightHome’s net income, associated with the Services or Software, including any related penalties or interest.
“Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of: (i) the end of the Services Term; or (ii) the Agreement is terminated as set forth herein.
Third-Party Request”“ means a request from a third-party for records relating to an End User’s use of the Services including information in or from an End User Account, or from Customer’s account. Third-Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users, or an End User’s authorized representative, permitting a disclosure.
“Withholding Taxes mean any Taxes Customer is required by law to withhold, which are then imposed on BrightHome, or Customer’s reseller, as applicable.
2.1 Provision. This Agreement governs access to, and use of, the Services and Software as detailed on the Order Form. Customer and End Users may access and use the Services in accordance with this Agreement.
2.2 Security Measures. BrightHome will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process Customer Data. These measures are designed to protect the integrity of Customer Data and guard against the unauthorized or unlawful access to, use, and processing of Customer Data.
2.3 Data Processing. BrightHome and its Sub-processors will only process Customer Data to provide the Services and to fulfill BrightHome’s obligations under the Agreement. Sub-processors’ processing activities will be restricted to processing on BrightHome’s behalf and in accordance with BrightHome’s instructions. Customer agrees that BrightHome and its Sub-processors may transfer, store, and process Customer Data in locations other than Customer’s country.
2.4 Modifications. BrightHome may modify, change, and/or update the Services from time to time. If BrightHome modifies, changes, and/or updates the Services in a manner that materially reduces their functionality, BrightHome will notify Customer at the email address provided as part of the Account Data and Customer may terminate this Agreement by written notice to BrightHome delivered within thirty (30) days of the date of BrightHome’s email notice of the modification, change, and/or update. Such termination shall be effective thirty (30) days from the date of Customer’s written notification of the termination. Such termination right will not apply to modifications, updates, and/or changes made to features provided on a beta or evaluation basis.
2.5 Software License. BrightHome hereby grants to Customer during the Term a limited non-exclusive license to use the Software solely in connection with the Services and in accordance with this Agreement. This license is non-transferable (subject to Section 16.8), irrevocable (except as set forth in Section 11), non-sublicensable, and will be fully paid up upon Customer’s payment of the Fees.
3. Customer Obligations.
3.1 Customer Administration of the Services. Customer’s Administrator may specify End Users through the Admin Console. Customer and its Administrator is responsible for managing and maintaining the confidentiality of all passwords and Admin Accounts. BrightHome’s responsibilities do not extend to the internal management or administration of the Services for Customer amongst its End Users.
3.2 Unauthorized Access. Customer will prevent and terminate any unauthorized access of the Services by its End Users. End User Accounts may only be provisioned, registered, accessed, and used by a single End User. The Services are not intended for End Users under the age of 13, and Customer will ensure that it does not allow any person under 13 to use the Services. Customer will promptly notify BrightHome of any unauthorized access to the Services.
3.3 Unauthorized Use. Customer will not use, nor assist or encourage any third party to use the Software or Services, to:
(a) sell, resell, or lease the Services or Software;
(b) use the Services or Software for activities where use or failure of the Services or Software could lead to physical damage, death, or personal injury;
(c) modify, alter, tamper with, or otherwise create derivative works of the Services or Software;
(d) reverse engineer, disassemble or decompile the Software or Services, or attempt to discover or recreate the source code used to provide or access the Software or Services, except and only to the extent that the applicable law expressly permits doing so;
(f) use the Service to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store or transmit inappropriate content, such as Customer Data: (1) containing unlawful, defamatory, threatening, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (iv) store or transmit any Customer Data that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party.
3.4 Compliance.Customer and its End Users must use the Services in compliance with this Agreement and the respective Order Form. Customer is responsible for use of the Services by its End Users. Customer will promptly notify BrightHome of any use of the Services or Software in violation of this Agreement, and Customer will take prompt steps to end such violations. Customer will comply with laws and regulations applicable to Customer’s use of the Services, if any. Customer will obtain and maintain from End Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow BrightHome to provide the Services. Customer will not store, transmit or otherwise process any information via the Services that falls within the definition of “Protected Health Information” under the HIPAA Privacy Rule (45 C.F.R. Section 164.051).
3.5 Access to the Services. 3 Access to the Software and the Services requires a compatible computer or mobile device with Internet access. Customer is solely responsible to ensuring Customer and its End Users have access to such compatible devices and for paying all fees and costs associated with acquiring and updating compatible devices necessary to access and use the Software and the Services and any updates thereto as well as all access fees and data and messaging rates and fees. BrightHome does not guarantee that the Software and the Services, or any portion thereof, will function on any particular hardware or device. In addition, the Software and the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. Customer agrees to comply with the usage rules established by the mobile device platform or service provider used by it and its End Users when using the Software and the Services.
4. Customer Data.
4.1 Customer Data. BrightHome does not claim ownership of any Customer Data transmitted, stored, or processed by the Customer or its End Users in the course of using the Services and Software. All Customer Data uploaded and used in the Services or Software by the Customer or its End Users belongs to Customer. BrightHome does not control, verify, or endorse Customer Data that is made available on the Services and Software.
4.2 Limited Use. Customer hereby grants BrightHome the right to transmit, use and disclose Customer Data posted on the Services solely (i) to the extent necessary to provide the Services, or as otherwise permitted by this Agreement, (ii) to provide improvements to the Services, (iii) to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, (iv) to respond to an emergency which BrightHome believes in good faith requires BrightHome to disclose information to assist in preventing the death or serious bodily injury of any person, or (v) to the extent permitted by the Customer.
4.3 HomeLight. BrightHome was recently acquired by HomeLight, Inc. (“HomeLight”). HomeLight will not use Customer Data of a real estate agent using the Services (including any data concerning any clients of a real estate agent using the Services) to generate or harvest any referral leads. Further, HomeLight will not use Customer Data of a real estate agent using the Services (including any data concerning any clients of a real estate agent using the Services) without the real estate agent’s knowledge to sell, market, or advertise HomeLight services or products to any client’s of the real estate agent. The foregoing does not preclude HomeLight from selling, marketing, or advertising HomeLight services to any individuals independent of and as a result of information other than Customer Data of a real estate agent using the Services.
4.4 Representation. Customer represents and warrants that (i) it has all rights in the Customer Data and Stored Data necessary to use the Services and Software, and to grant the rights in this section, and (ii) the storage, use, or transmission of the Customer Data does not violate any law or this Agreement.
4.5 Responsibility. Customer agrees that it will:
(a) be solely responsible for the nature, quality, and accuracy of the Customer Data;
(b) ensure that the Customer Data complies with this Agreement and any and all applicable laws and regulations; and
(c) promptly resolve any notices and claims relating to the Customer Data, including notices sent to you by any person claiming that an Customer Data violates any person’s rights (such as a takedown notice pursuant to the Digital Millennium Copyright Act); and maintain appropriate security, protection and backup copies of the Customer Data.
4.6 Data Accuracy. BrightHome shall have no responsibility or liability for the accuracy of data and information uploaded to, or created in the course of using the Services by Customer or End Users, including, without limitation, Customer Data and Stored Data. Customer is solely responsible for the Customer Data and Stored Data that Customer and its End Users, publish, display, link to or otherwise make available via the Services and BrightHome expressly disclaims any and all liability in connection with Customer Data and Stored Data. Customer and its End Users are solely responsible for determining whether any Customer Data or Stored Data uploaded to, or created in the course of using the Services is appropriate for Customer and its End Users and for any decision made by Customer based on information or results provided by the Services.
5. Intellectual Property Rights.
5.1 Reservation of Rights.Except as expressly set forth herein, this Agreement does not grant: (a) BrightHome any Intellectual Property Rights in Customer Data; or (b) Customer any Intellectual Property Rights in the Services, Software, or BrightHome trademarks and brand features.
5.2 Limited Permission. Customer grants BrightHome only the limited rights that are reasonably necessary for BrightHome to provide the Services. This limited permission also extends to the Subcontractors or Sub-processors.
5.3 Suggestions. BrightHome may use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions regarding the Services that Customer or End Users may send BrightHome or post in BrightHome’s forums without any obligation to Customer and Brighthome shall own all right, title, and interest in such feedback, comments, or suggestions.
6. Fees and Payment.
6.1 Fees. Customer will pay BrightHome all applicable Fees for the Services, in the currency indicated on the Order Form. Customer authorizes BrightHome, or Customer’s reseller, to charge Customer for all applicable Fees using Customer’s selected payment method. Fees are non-refundable except as required by law or as otherwise specifically permitted in this Agreement.
6.2 Payment. Customer will pay BrightHome invoices on the payment interval set forth in the Order Form. BrightHome may suspend or terminate the Services if Fees are past due. Customer will provide complete and accurate billing and contact information to BrightHome.
6.3 Taxes. Fees are exclusive of taxes and Customer is responsible for all Taxes. BrightHome, will charge Taxes when required to do so. If Customer provides BrightHome with a valid exemption certificate, BrightHome will not collect the taxes covered by that certificate.
6.4 Withholding Taxes. 6 Customer will pay BrightHome net of any applicable Withholding Taxes. Customer and BrightHome will work together to avoid any Withholding Tax if exemptions, or a reduced treaty withholding rate, are available. If BrightHome qualifies for a tax exemption, or a reduced treaty withholding rate, BrightHome will provide Customer with reasonable documentary proof. Customer will provide BrightHome reasonable evidence that it has paid the relevant authority for the sum withheld or deducted.
6.5 Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer: (i) must provide the purchase order number at the time of purchase; and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.
Third-Party Apps and Integrations. If Customer uses any third-party service or applications, such as a service that uses a BrightHome API, with the Services: (a) BrightHome will not be responsible for any act or omission of the third-party, including the third-party’s access to or use of Customer Data; and (b) BrightHome does not warrant or support any service provided by the third-party.
7. Third-Party Requests.
7.1 Customer Responsibility. Customer is responsible for responding to Third-Party Requests via its own access to information and Customer Data. Customer will seek to obtain information required to respond to Third-Party Requests and will contact BrightHome only if it cannot obtain such information despite diligent efforts.
7.2 BrightHome Responsibility. BrightHome will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third-Party Request, to: (i) promptly notify Customer of BrightHome’s receipt of a Third-Party Request; (ii) comply with Customer’s commercially reasonable requests regarding its efforts to oppose a Third-Party Request; and (iii) provide Customer with information or tools required for Customer to respond to the Third-Party Request, if Customer is otherwise unable to obtain the information. If Customer fails to promptly respond to any Third-Party Request, then BrightHome may, but will not be obligated to do so.
8.1 By BrightHome. If an End User: (a) violates this Agreement; or (b) uses the Services in a manner that BrightHome reasonably believes will harm the Services, disrupt the use of the Services by others, or cause legal liability, then BrightHome shall notify Customer and Customer shall suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User Account, then BrightHome has the right to suspend or terminate the applicable End User Account. In addition, BrightHome reserves the right to suspend access to Customer’s account if Customer’s use of the Service violates this Agreement or disrupts, impedes or otherwise negatively impacts the operation of the Services or the use of the Services by others.
8.2 Security Emergencies. Notwithstanding anything to the contrary in this Agreement, upon any Security Emergency, then BrightHome may automatically suspend use of the Services in its sole discretion. BrightHome will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.
9.1 Agreement Term. This Agreement will remain in effect for the Initial Services Term and shall automatically renew for one or more Renewal Terms unless one party sends notice of non-renewal to the non-terminating party at least thirty (30) days prior to the expiration of the then current Renewal Term.
9.2 Services Term. BrightHome will provide the Services to Customer for the Services Term. Unless the parties agree otherwise in writing, End User Accounts established during any Services Term will have a prorated term ending on the last day of the pre-existing Services Term.
10.1 Generally. Either Party may terminate this Agreement, including all Order Forms, if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days.
10.2 Effects of Termination. If this Agreement terminates: (a) except as set forth in this Section, the rights and licenses granted by BrightHome to Customer will cease immediately; (b) BrightHome may, at Customer’s request, provide Customer access to its account at then-current fees so that Customer may export its Customer Data; and (c) after a commercially reasonable period of time, BrightHome may delete any Customer Data relating to Customer’s account. The following sections will survive expiration or termination of this Agreement: Section 8 (Third Party Requests), Section 6 (Fees and Payment), Section 5 (Intellectual Property Rights), Section 11.2 (Effects of Termination), Section 12 (Indemnification), Section 13 (Disclaimers), Section 14 (Limitation of Liability), Section 15 (Disputes), and Section 16 (Miscellaneous).
11.1 By Customer. Customer will indemnify, defend, and hold harmless BrightHome, its officers, directors, employees, agents, licensors, Subcontractors, Sub-processors, affiliates and suppliers from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of claims based on Customer’s and its End User’s use of the Services or Software, including, but not limited to: (a) BrightHome’s, its Subcontractors’ and Sub-processors’ authorized use of the Customer Data; (b) Customer’s, or Customer’s End Users’, use of the Services in violation of this Agreement; or (c) any activity related to access or use of Customer’s or its End Users’ accounts (including, but not limited to, negligent or wrongful conduct) by Customer, its End Users, or any other person accessing or using such accounts.
11.2 By BrightHome. BrightHome will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer to the extent based on an allegation that the Services infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will BrightHome have any obligations or liability under this section arising from: (a) use of any Services in a modified form or in combination with materials not furnished by BrightHome; and (b) any content, information, or data provided by Customer, End Users, or other third parties.
11.3 Possible Infringement. If BrightHome believes the Services or Software infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then BrightHome may: (a) obtain the right for Customer, at BrightHome’s expense, to continue using the Services or Software; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services or Software so that they no longer infringe. If BrightHome does not believe the options described in this section are commercially reasonable, then BrightHome may suspend or terminate Customer’s use of the affected Services or Software, with a pro-rata refund of prepaid fees for the Services or Software.
11.4 General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other Party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE CUSTOMER’S SOLE REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
12.1 Generally. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BRIGHTHOME DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, BRIGHTHOME MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY GOODS OR SERVICES, OBTAINED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER AGREES THAT THE ENTIRE RISK ARISING OUT OF CUSTOMER’S USE OF THE SERVICES, AND ANY THIRD PARTY GOODS OR SERVICES OBTAINED IN CONNECTION THEREWITH, REMAINS SOLELY WITH CUSTOMER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12.2 Beta Services. Despite anything to the contrary in this Agreement: (a) Customer may choose to use Beta Services in its sole discretion; (b) Beta Services may not be supported and may be changed at any time without notice; (c) Beta Services may not be as reliable or available as the Services; (d) Beta Services have not been subjected to the same security measures and auditing to which the Services have been subjected; and (e) BRIGHTHOME WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES – USE AT YOUR OWN RISK.
13. Limitation of Liability.
13.1 Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR BRIGHTHOME OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR BRIGHTHOME AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.2 Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, BRIGHTHOME’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $100,000 OR THE AMOUNT PAID BY CUSTOMER TO BRIGHTHOME HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
13.3 Conduct of Others; Customer Data. BRIGHTHOME HAS NO CONTROL OVER THE CONDUCT OF OTHER USERS OF THE SERVICES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER’S AND ITS END USER’S USE OF THE SERVICES AND ANY CONTACTS, INTERACTIONS OR DEALINGS WITH ANY THIRD PARTIES ARISING OUT OF USE OF THE SERVICES IS SOLELY AT CUSTOMER’S AND ITS END USER’S RISK. BRIGHTHOME IS NOT RESPONSIBLE FOR, AND WILL NOT BE HELD LIABLE FOR ANY INACCURACIES IN THE CUSTOMER DATA OR ANY OF, THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY OF THESE OPERATORS OR SUPPLIERS FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, LOSS, THEFT OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM
13.4 Service Limitations. BrightHome uses reasonable efforts to make the Services and the Software available seven (7) days a week and twenty-four (24) hours a day. However, BrightHome does not guarantee availability of the Services, shall not have any liability to Customer for any unavailability of the Services, and is under no obligation to provide Customer with maintenance, technical support or updates for the Software or Services unless provided in conjunction in the Order Form and, if provided, in the manner as determined by BrightHome from time to time.
14.1 Informal Resolution. 15.1 Informal Resolution. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other Party through the notice procedures in Section 16.6. If a dispute is not resolved within thirty days of notice, Customer or BrightHome may bring a formal proceeding.
14.2 Arbitration. Customer and BrightHome agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Francisco (CA), or any other location both parties agree to in writing.
14.3 Exception to Arbitration. Either party may bring a lawsuit in the federal or state courts of San Francisco County, California solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above.
14.4 NO CLASS ACTIONS. Customer may only resolve disputes with BrightHome on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.
15.1 Terms Modification. BrightHome may revise this Agreement from time to time and the most current version will always be posted on the BrightHome website. If a revision, in BrightHome’s sole discretion, is material, BrightHome will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to BrightHome’s blog or terms page, and Customer is responsible for checking these postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within thirty days of receiving notice of the change.
15.2 Entire Agreement. This Agreement supersedes any prior agreements or understandings between the Parties, and constitutes the entire Agreement between the Parties related to this subject matter. All attachments to the Agreement, Customer invoices, and Order Forms executed by the Parties, are hereby incorporated into the Agreement by this reference.
15.3 Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Form, the Agreement. The terms and conditions of this Agreement will be considered the confidential information of BrightHome, and Customer will not disclose the information to any third parties. Customer agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void. If End Users are required to click through terms of service in order to use the Services, those click through terms are subordinate to this Agreement and this Agreement will control if there is a conflict.
15.4 Governing Law. This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the State of California and the parties agree to submit to the non-exclusive jurisdiction of the state and federal courts in the Northern District of California. The United Nations Convention for the International Purchase and Sale of Goods shall not apply.
15.5 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
15.6 Notice. All notices, requests, demands and other communications hereunder shall be effective if in writing and delivered personally or sent by facsimile, electronic mail, Federal Express or other priority delivery service, or by certified or registered mail, postage prepaid, to the applicable party at the addresses indicated on the Order Form or otherwise provided by one party to the other party. Unless otherwise specified herein, such notices or other communications shall be deemed effective (a) on the date delivered, if delivered personally, (b) two (2) business days after being sent, if sent by Federal Express or other priority delivery service, (d) on the date of delivery if delivered sent by facsimile or electronic mail during normal business hours of the recipient and on the next business day if after normal business hours of the recipient, and (e) five (5) business days after being sent, if sent by registered or certified mail.
15.7 Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
15.8 Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the prior written consent of BrightHome. BrightHome may not assign this Agreement without providing notice to Customer, except BrightHome may assign this Agreement or any rights or obligations under this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
15.9 No Agency. BrightHome and Customer are not legal partners or agents, but are independent contractors.
15.10 Subcontracting. BrightHome will remain liable for all acts or omissions of its Subcontractors or Sub-processors, and for any subcontracted obligations.
15.11 Force Majeure. Except for payment obligations, neither BrightHome nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the Party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
15.12 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.