Terms Of Service Last Updated Date: August 19, 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 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..
"Student" means a person who is attending a school district located within the United States for the purpose of completing course work for a high school diploma.
"Teacher" means a person who is either employed or engaged as an independent contractor, in either case by a school district located within the United States, as a teacher of secondary education classes for Students.
Brightstorm reserves the right, at its sole discretion, to modify, discontinue or terminate the Site, Services or Content 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, Services or Content 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, Services and Content.
The Site, Services and Content are intended solely for persons who are 13 or older. Any access to or use of the Site, Services or Content by anyone under 13 is expressly prohibited. By accessing or using the Site, Services or Content, you represent and warrant that you are 13 or older.
This section only applies to Teachers. To access the Site, Services, and Content, you must first register to create a teacher account ("Teacher Account") by using your email address assigned to you by your school district. You are only permitted to have one Teacher Account for each school district which employs or contracts with you. In creating a Teacher Account, you represent and warrant that you are a Teacher with the school district you designate while creating the Teacher Account and you consent to our using the information you provide to create the Teacher Account to verify that you qualify as a Teacher with that school district. Once you register for a Teacher Account, you will have full access to the Site, Services and Content for one month.
If you have not purchased a subscription as described below by the end of that one month, you may continue to access the Site and Services, but you will have the limited ability to access only previews of the video Content and you will not be able to access the full length of any video Content.
If you intend to enable Students to access the Site, Services and Content, you will need to purchase a subscription to the Site, Services and Content within that one month by creating a group of at least thirty Students. In creating a group on the Site, you will need to choose a name for the group, designate the subject matter for the group (limited to one subject matter per group), the number of Students in the group (must be at least twenty), and the length of time the group will have access to the Site, Services and Content from the selections presented by the Site (“Term”). Since the number of Students in the group cannot be increased during the Term, you may want to consider specifying more Students that you will need at the outset. Since the Term cannot be extended, you may want to consider choosing a Term that will cover any extended period. The Site will provide you with the price per student for the group based on the information you used to create your group. The subscription price will be the monthly price per student multiplied by the number of Students you designated to be in the group and the number of months you select.
The Site will then give you an option to pay for the subscription price either by credit card or by check. If you opt to pay by credit card, you acknowledge and agree that (i) you will be required to provide customary billing information such as name and credit card number, expiration date, and security code; (ii) you will provide accurate, current and complete billing information; (iii) you authorize Brightstorm to bill your credit card for the subscription price associated with the group; and (iv) your group will be activated immediately after we process the transaction on your credit card. If you opt to pay by check, you acknowledge and agree that (i) you will pay the invoice accessible from the Site so that we receive your payment within fifteen days after you created the group; and (ii) your group will be activated in 2 business days after we receive your payment within such fifteen days.
All fees and applicable taxes, if any, are payable in United States dollars. Once paid, your subscription fee is non-refundable. You have sole responsibility to keep a record of your login credentials to access your Teacher Account and the Site, Services, and Content. No refunds will be given for lost login credentials.
Once your group is activated, you will receive a unique group code for the associated group, which you will need to provide to your Students for them to have access to the Site, Services and Content. You may create multiple groups by following the same process described above, but note that each group will have its own unique code which may only be used by the number of Students and for the Term designated during the group creation process.
This section only applies to Students. To access the Site, Services, and Content, you must first register to create a Student account ("Student Account") by using your email address and by enrolling into a group that has been previously created by a Teacher. To enroll in a group created by a Teacher, you will need to have the unique group code provided to the Teacher when the Teacher paid for their subscription. Note, each Teacher and each group of a Teacher will have separate and distinct group codes, so do not attempt to use a group code for any other group than was designated by the Teacher who originally provided you with the group code. If you experience any trouble in enrolling into a group, please contact the Teacher to ensure the maximum number of Students has not already been exceeded.
Whether you are a Teacher or Student, 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.
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 any Content to which you are permitted access by the Site; and (ii) to print any documentary Content to which you are permitted access by the Site; in each case, 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:
- Share, lend, or resell access to your Account or to the Site, Services or Content to anyone else, including without limitation fellow students, teachers, and faculty, except for a Teacher providing access to Students for which the subscription price has been paid by the Teacher, to the extent expressly permitted in these Terms;
- Display the Site, Services, or Content to any person other than a Student for which the subscription price has been paid by a Teacher and that Teacher, including, for example, a Teacher displaying the Site, Services, or Content in a group setting including without limitation a classroom, tutoring center, or school lab, which includes persons other than paid-for Students and that Teacher;
- Use, display, mirror, embed, or frame the Site, Services, Content, or any individual element within the Site or Services, Brightstorm's name, any Brightstorm trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page;
- Access, tamper with, or use non-public areas of the Site or Services, Brightstorm's computer systems, or the technical delivery systems of Brightstorm's providers;
- Attempt to probe, scan, or test the vulnerability of any Brightstorm system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Brightstorm or any of Brightstorm's providers or any other third party (including another user) to protect the Site, Services, or Content;
- Attempt to access or search the Site, Services, or Content or download Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Brightstorm or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Brightstorm trademark, logo URL or product name without Brightstorm's express written consent;
- Use the Site, Services, or Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site or Services;
- Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
You acknowledge that Brightstorm has no obligation to monitor 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 compliance with these Terms (including, but not limited to these prohibitions), or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. If Brightstorm suspects that any of these Terms are being violated, Brightstorm reserves the right to suspend access to the Site, Services and Content by any persons suspected of such violations. Further, 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.
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.
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.
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, 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 CONTENT ACCESSED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT ACCESSED THROUGH THE SITE OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BRIGHTSTORM OR THROUGH THE SITE, SERVICES, 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 A TEACHER WHO HAS PAID OR HAS HAD THEIR SCHOOL PAY THE SUBSCRIPTION FEE, OR TEN DOLLARS ($10), IF YOU ARE A STUDENT, 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 or your Account, by operation of law or otherwise, without Brightstorm's prior written consent. Any attempt by you to assign or transfer these Terms or your Account, without such consent, will be null and of no effect. Brightstorm may assign or transfer these Terms and your Account, 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.,
- 2700 Mission College Blvd., STE 140-104,
- Santa Clara, CA 95054