Terms of Service

Last Updated: April 5, 2017

These Terms of Service (“Terms”) are a legal contract between you (“Customer” or “your”) and BrightGuest Technologies, Inc. (“BrightGuest”, “we”, “our” or “us”) and govern your use of all the text, data, information, software, graphics, photographs and more (all of which are referred to in these Terms as the “Materials”) that we or our affiliates may make available to you, as well as any services (“Services”) we may provide through any of our websites (all of which are referred to in these Terms as this “Website”).

READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE OR REGISTERING OR USING ANY OF THE SERVICES. USING THIS WEBSITE OR ANY OF THE SERVICES INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. IF YOU USE THE WEBSITE OR SERVICES ON BEHALF OF YOUR COMPANY OR YOUR EMPLOYER, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND YOUR COMPANY OR YOUR EMPLOYER TO THESE TERMS (IN WHICH CASE THE TERM “YOU” OR “YOUR” ALSO INCLUDES YOUR COMPANY OR EMPLOYER). YOU CANNOT USE THIS WEBSITE OR THE SERVICES IF YOU DO NOT ACCEPT THESE TERMS.

CHANGES.

BrightGuest may alter the Materials and Services it offers you and/or choose to modify, suspend or discontinue this Website at any time and without notifying you. BrightGuest may also change, update, add or remove provisions (collectively, “modifications”) of these Terms from time to time. We will use commercially reasonable efforts to notify you any modifications to these Terms by posting them on this Website and, if you have registered with us, by describing the modifications to these Terms in an email that we will send to the address that you provided during registration. To be sure we properly reach your email inbox, we ask that you let us know if your preferred email address changes at any time after your registration.

If you object to any such modifications, your sole recourse shall be to cease using this Website. Continued use of this Website following notice of any such modifications indicates you acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of this Website. These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.

GENERAL USE.

By using this Website, you promise that you are at least 13 years of age. If you are not yet 18 years old, you must have the permission of an adult to use this Website and agree to its Terms, and that adult must be a parent or legal guardian who is willing be responsible for your use of this Website. Except for use of the Services as noted above, your use of the Website is for your individual, consumer purposes (“Permitted Purposes”).

In these Terms we are granting you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials; your right to use the Materials is conditioned on your compliance with these Terms. You have no other rights in this Website or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of this Website or Materials in any manner. If you make copies of any of this Website while engaging in Permitted Purposes then we ask that you be sure to keep on the copies all of our copyright and other proprietary notices as they appear on this Website.

Unfortunately, if you breach any of these Terms the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials (and any copies thereof).

USING THIS WEBSITE AND THE WEBSITE’S SERVICES.

We appreciate you visiting this Website and allow you to do just that – stop by and leisurely check it out without even registering with us!

However, in order to access certain password-restricted areas of this Website and to use certain Services and Materials offered on and through this Website, you must successfully register an account with us and agree to the Additional Terms of Service set forth below.

PASSWORD RESTRICTED AREAS OF THIS WEBSITE.

If you want to use our Services, you must register an account with us. To set up an account, you must submit the following information through the account registration page on this Website:

  • A working email address
  • First and last name
  • Preferred username and password
  • Industry of your organization

You may also provide additional, optional information so that we can provide you a more customized experience when using this Website–but, we will leave that decision with you. Once you submit the required registration information, we alone will determine whether or not to approve your proposed account. If approved, you will be sent an email detailing how to complete your registration. For so long as you use the account, you agree to provide true, accurate, current, and complete information which can be accomplished by logging into your account and making relevant changes directly or contacting us using the below contact information and we can make the changes for you. And, if you forget your password, we can easily send a password update to your provided email address.

You are responsible for complying with these Terms when you access this Website, whether directly or through any account that you may setup through or on this Website. Because it is your account, it is your job to obtain and maintain all equipment and services needed for access to and use of this Website as well as paying related charges. It is also your responsibility to maintain the confidentiality of your password(s), including any password of a third-party site that we may allow you to use to access this Website. Should you believe your password or security for this Website has been breached in any way, you must immediately notify us.

ELECTRONIC COMMUNICATIONS.

By using the Website and/or the Services provided on or through the Website, you consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Website and/or Services provided on or through the Website. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.

PRIVACY POLICY.

We respect the information that you provide to us, and want to be sure you fully understand exactly how we use that information. So, please review our Privacy Policy (“Privacy Policy”) which explains everything.

SECURITY TECHNOLOGY.

BrightGuest has server, database, backup and firewall technologies to protect our information assets. These technologies are part of advanced security architecture. All data resides in a tightly controlled, secure data center. Customer information is strongly protected by BrightGuest against unauthorized access. We maintain safeguards to protect the security of these servers and your personal information. BrightGuest may process, store and back up its information with the assistance of those providers.

LINKS TO THIRD-PARTY SITES.

We think links are convenient, and we sometimes provide links on this Website to third-party websites. If you use these links, you will leave this Website. We are not obligated to review any third-party websites that you link to from this Website, we do not control any of the third-party websites, and we are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, we do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If you decide to access any of the third-party websites linked to from this Website, you do this entirely at your own risk and you must follow the privacy policies and terms and conditions for those third-party websites. Certain areas of this Website may allow you to interact and/or conduct transactions with one or more third-party websites, and, if applicable, allow you to configure your privacy settings in that third-party website account to permit your activities on this Website to be shared with your contacts in your third-party site account.

SUBMISSIONS.

Certain areas of this Website (landing pages, customer ratings and review areas, and engagement content) may permit you to submit feedback, information, data, text, software, messages, images, videos, forms, interactive media or other materials (each, a “User Submission”). You agree that you are solely responsible for all of your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary. Further, we do not guarantee that you will be able to edit or delete any User Submission you have submitted.

By submitting any User Submission, you are promising us that:

  • You own all rights in your User Submissions (including, without limitation, all rights to the reproduction and display of your User Submissions) or, alternatively, you have acquired all necessary rights in your User Submissions to enable you to grant to us the rights in your User Submissions as described in these Terms;
  • You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submissions;
  • Your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
  • You voluntarily agree to waive all “moral rights” that you may have in your User Submission;
  • Any information contained in your User Submission is not known by you to be false, inaccurate, or misleading;
  • Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
  • Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
  • Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
  • Your User Submission does not contain any information that you consider confidential, proprietary, or personal; and
  • Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.

By submitting a User Submission, you grant to us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:

  • Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
  • Use (and permit others to use) your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that we deem appropriate in our sole discretion (including, without limitation, to incorporate your User Submission or any modification thereto, in whole or in part, into any technology, product, or service);
  • Display advertisements in connection with your User Submissions and to use your User Submissions for advertising and promotional purposes.

We may, but are not obligated to, pre-screen User Submissions or monitor any area of this Website through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through this Website and may remove at any time or refuse any User Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, you agree that we may freely disclose your User Submission to any third party absent any obligation of confidence on the part of the recipient.

UNAUTHORIZED ACTIVITIES.

To be clear, we authorize your use of this Website only for Permitted Purposes. Any other use of this Website beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of this Website. All rights in this Website remain our property.

Unauthorized use of this Website may result in violation of various United States and international copyright laws. Because we prefer keeping this relationship drama-free, we want to give you examples of things to avoid. So, unless you have written permission from us stating otherwise, you are not authorized to use this Website in any of the following ways (these are examples only and the list below is not a complete list of everything that you are not permitted to do):

  • For any public or commercial purpose which includes use of this Website on another site or through a networked computer environment;
  • In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of this Website;
  • In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
  • To stalk, harass, or harm another individual;
  • To impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
  • To interfere with or disrupt this Website or servers or networks connected to this Website;
  • To use any data mining, robots, or similar data gathering or extraction methods in connection with this Website; or
  • Attempt to gain unauthorized access to any portion of this Website or any other accounts, computer systems, or networks connected to this Website, whether through hacking, password mining, or any other means.

You agree to hire attorneys to defend us if you violate these Terms and that violation results in a problem for us. You also agree to pay any damages that we may end up having to pay as a result of your violation. You alone are responsible for any violation of these Terms by you. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with our defense of such claim.

PROPRIETARY RIGHTS.

“BrightGuest” is a trademark that belongs to us. Other trademarks, names and logos on this Website or presented through the Services are the property of their respective owners.

Unless otherwise specified in these Terms, all Materials, including the arrangement of them on this Website are our sole property, Copyright © 2017. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.

INTELLECTUAL PROPERTY INFRINGEMENT.

We respect the intellectual property rights of others and encourage you to do the same. Accordingly, we have a policy of removing User Submissions that violate intellectual property rights of others, suspending access to this Website (or any portion thereof) to any user who uses this Website in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses this Website in violation of someone’s intellectual property rights.

Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by a user of this Website, please provide written notice to our Agent for notice of claims of infringement:

Attn: BrightGuest Support

Email: support@brightguest.com

Subject: DMCA IP Infringement

To be sure the matter is handled immediately, your written notice must:

  • Contain your physical or electronic signature;
  • Identify the copyrighted work or other intellectual property alleged to have been infringed;
  • Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
  • Contain adequate information by which we can contact you (including postal address, telephone number, and email address);
  • Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
  • Contain a statement that the information in the written notice is accurate; and
  • Contain statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.

Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.

Submitting a DMCA Counter-Notification

We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, you may provide our Agent with a written counter-notification that includes the following information:

  1. Your physical or electronic signature;
  2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
  3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
  4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

Termination of Repeat Infringers

We reserve the right, in our sole discretion, to terminate the account or access of any user of this Website or Service who is the subject of repeated DMCA or other infringement notifications.

DISCLAIMER OF WARRANTIES.

THIS WEBSITE AND ALL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS WEBSITE IS WITH YOU.

WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THIS WEBSITE, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE WEBSITE OR SERVICES ARE FREE OF PROBLEMS. Without limiting the generality of the foregoing, we make no warranty that this Website or the Services will meet your requirements or that this Website or the Services will be uninterrupted, timely, secure, or error free or that defects in this Website will be corrected. We make no warranty as to the results that may be obtained from the use of this Website or as to the accuracy or reliability of any information obtained through this Website. No advice or information, whether oral or written, obtained by you through this Website or from us or our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.

LIMITATION OF LIABILITY.

WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS WEBSITE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE.

LOCAL LAWS; EXPORT CONTROL.

We control and operate this Website from our headquarters in the United States of America and the entirety of this Website may not be appropriate or available for use in other locations. If you use this Website outside the United States of America, you are solely responsible for following applicable local laws.

FEEDBACK.

Any submissions by you to us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.

Please Read This Provision Carefully. It Affects Your Legal Rights.

This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.

This Provision provides that all disputes between you and us shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because we believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

Pre-Arbitration Claim Resolution

For all Disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the Dispute which is first done by emailing to us at support@brightguest.com the following information: (1) your name, (2) your address, (3) A written description of your Claim, and (4) A description of the specific relief you seek. If we do not resolve the Dispute within 45 days after receiving your notification, than you may pursue your Dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.

Exclusions from Arbitration/Right to Opt Out

Notwithstanding the above, you or we may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST USE THE WEBSITE OR SERVICES (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing us at support@brightguest.com the following information: (1) your name; (2) your address; (3) A clear statement that you do not wish to resolve disputes with us through arbitration. Either way, we will not take any decision you make personally. In fact, we promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with us. But, we do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.

Arbitration Procedures

If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.

Because this Website and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration – You or we may initiate arbitration in either Phoenix, Arizona or the federal judicial district that includes your billing address. In the event that you select the latter, we may transfer the arbitration to Phoenix, Arizona so long as We agree to pay any additional fees or costs which the arbitrator determines you incur as a result of the transfer.

Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, We will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

Class Action Waiver

Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and we specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

Jury Waiver

You understand and agree that by accepting this Provision in these Terms, you and we are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.

Severability

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.

Continuation

This Provision shall survive the termination of your account with us or our affiliates and your discontinued use of this Website. Notwithstanding any provision in these Terms to the contrary, we agree that if we make any change to this Provision (other than a change to the Notice Address), you may reject any such change and require us to adhere to the language in this Provision if a dispute between us arises.

GENERAL.

The Federal Arbitration Act, Arizona state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or this Website will be heard in the courts located in Maricopa County, Arizona. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, we are not waiving our rights. These Terms are the entire agreement between you and us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between you and us about this Website or the Services. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

CONTACT US.

If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at BrightGuest 1530 E Williams Field Rd #201, Gilbert, AZ 85295; (888) 978-6325; support@brightguest.com.

ADDITIONAL TERMS OF SERVICE

IF YOU HAVE SIGNED UP TO USE BRIGHTGUEST’S MOBILE ENGAGEMENT AND WAITLIST MANAGEMENT PLATFORM, YOU MUST FURTHER AGREE TO THE ADDITIONAL TERMS OF SERVICE (“ADDITIONAL TERMS”).  BY ACCEPTING THESE ADDITIONAL TERMS, OR BY USING THE BRIGHTGUEST PLATFORM, YOU AGREE TO THE ADDITIONAL TERMS OF SERVICE. IF YOU ARE ENTERING INTO THESE ADDITIONAL TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” BELOW SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE BRIGHTGUEST PLATFORM.

A. DEFINITIONSThe following terms shall have the meanings set forth below:

Customer” means the person or entity identified on the Order Form that has registered to access the BrightGuest Platform and use of the SMS Services.

Customer Data” means any and all advertising, information, data, text, and other material transmitted or provided by Customer to the BrightGuest Platform, or collected by the BrightGuest Platform through Customer’s usage.

Effective Date” is the one when Customer orders the SMS Services.

BrightGuest Platform” means BrightGuest’s mobile engagement and waitlist management platform.

SMS Services” means the services provided hereunder, including Support (as defined below) and access to the BrightGuest Platform.

 “User” means an employee or contractor of Customer that is authorized by Customer to access the BrightGuest Platform.

B. ORDERS, LICENSE AND RESTRICTIONS.

Orders. Customer may purchase subscriptions or pay per engagement to access and use the BrightGuest Platform and SMS Services pursuant to the BrightGuest online order form (“Order Form”). User subscriptions and pay per engagement accounts are for designated Users only and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the SMS Services. Additional Users can be added within the same Customer organization with various assignable roles and permissions under a single User subscription.

License Grant. Subject to these Additional Terms, and during the term of any subscriptions ordered hereunder, BrightGuest hereby grants to Customer, a limited, non-exclusive, non-transferable license (without the right to sublicense) to access and use the BrightGuest Platform for its internal business use only for the number of Users for which fees have been paid.

License Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any User to, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the BrightGuest Platform; (ii) modify, translate, or create derivative works based on any element of the BrightGuest Platform or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the BrightGuest Platform; (iv) use the BrightGuest Platform for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer; (v) remove any proprietary notices from BrightGuest materials furnished or made available to Customer; (vi) publish or disclose to third parties any evaluation of the BrightGuest Platform without BrightGuest’s prior written consent; or (vii) use the BrightGuest Platform for any purpose other than its intended purpose.

C. REGISTRATION; PASSWORDS; SECURITY.

Registration. Customer agrees to provide complete, accurate and current information when registering an account to use the BrightGuest Platform and SMS Services, and shall update such registration information promptly should it change or become inaccurate.

Passwords. Customer will create and issue to each User, a user identification and associated password for access to and use of the BrightGuest Platform. Customer and its Users are responsible for maintaining the confidentiality of all user identification numbers and/or passwords and for ensuring that each user identification number and/or password is used only by the User to which it was issued. Customer is solely responsible for any and all activities that occur under Customer’s account and all charges incurred from use of the BrightGuest Platform accessed with such user identification numbers and/or passwords. Customer will restrict its Users from sharing passwords. Customer agrees to immediately notify BrightGuest of any unauthorized use of Customer’s account, any user identification number and/or password, or any other breach of security known to Customer. BrightGuest shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.

Security. BrightGuest will deploy reasonable security precautions intended to protect against unauthorized access to any Customer Data stored on the BrightGuest Platform. BrightGuest will exercise reasonable efforts to deploy corrections within the BrightGuest Platform for security breaches made known to BrightGuest. Customer acknowledges that, notwithstanding the security precautions deployed by BrightGuest, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the BrightGuest Platform and Customer Data.

No Circumvention of Security. Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the BrightGuest Platform. Customer will immediately notify BrightGuest of any breach, or attempted breach, of security known to Customer.

D. SUPPORT.

BrightGuest will provide to Customer online support resources and reasonable email, phone and live chat technical support during normal business hours 9 am to 5 pm Mountain Standard Time, Monday through Friday, holidays excluded (“Support”). Email support@brightguest.com or call (888) 978-6325.

SMS Coverage. BrightGuest currently can deliver SMS messages to the following major and minor mobile phone carriers in the United States.

Major Carriers. AT&T, Verizon Wireless, Sprint, and T-Mobile USA.

Minor Carriers. Advantage Cellular (DTC Wireless), Aio Wireless, Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Boost Mobile, Carolina West Wireless, CellCom, Cellular One of East Central IL (ECIT), Cellular One of Northeast Arizona, Cellular One of Northeast Pennsylvania, Chariton Valley Cellular, Cricket, Coral Wireless (Mobi PCS), Cross, C-Spire (CellSouth), Duet IP (Maximum Communications New Core Wireless), Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Google Voice, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Metro PCS, Mosaic (Consolidated or CTC Telecom), MTA Communications, MTPCS (Cellular One Nation), Nex-Tech Wireless, NTelos, Panhandle Communications, Peoples Wireless, Pine Cellular, Pioneer, RINA, Sagebrush Cellular (Nemont), SI Wireless/Mobile Nation, Simmetry (TMP Corporation), SouthernLinc, SRT Wireless, Thumb Cellular, Union Wireless, United Wireless, U.S. Cellular, Viaero Wireless, Virgin Mobile, and West Central (WCC or 5 Star Wireless).

Puerto Rico. Puerto Rico is supported in the US on only 3 of the 4 major carriers. However, delivery is not guaranteed. Supported carriers are: AT&T, T-Mobile and Sprint. Verizon is not supported.

E. CUSTOMER OBLIGATIONS.

Hardware/Software. Customer is responsible for (i) obtaining, deploying and maintaining all computer hardware, software and communications equipment needed to access and use the BrightGuest Platform, (ii) contracting with third parties that provide services related to Customer being able to access and use the BrightGuest Platform (e.g., ISP, telecommunications, etc.) and (iii) paying all third-party fees and access charges incurred while accessing and using the BrightGuest Platform. BrightGuest will not be required to supply any hardware, software or equipment to Customer by reason of these Additional Terms.

Compliance with Laws. Each party represents and warrants, during the term of these Additional Terms, that it is in compliance with and will comply with all applicable laws and regulations applicable to its business and its performance of its obligations under these Additional Terms, Customer represents and warrants that its owns or has licenses to all Customer Data and that right to transfer such Customer Data to BrightGuest for purposes of providing SMS Services under these Additional Terms. To the extent Customer Data includes personal information, Customer has obtained all necessary consents and has complied with all applicable laws, rules, regulations and orders, including without limitation, all data privacy laws, in collecting, processing, using and transferring such personal information to BrightGuest for purposes of providing SMS Services under these Additional Terms. Customer will indemnify, defend and hold harmless BrightGuest, its directors, officers, employees, agents, successors and assigns from any claims, actions, suits, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or related to (i) Customer’s breach of this Section, (ii) the provision of Customer Data to BrightGuest or (iii) the storage, processing or display of Customer Data by the BrightGuest Platform.

Conduct. Customer shall be solely responsible for its actions and the actions of its Users while using the BrightGuest Platform. Customer acknowledges and agrees (i) that Customer is responsible for selecting appropriate remediation for, and resolving, any issues found on Customer’s network, hardware, software, or third party services relied on by Customer to access and use the BrightGuest Platform (collectively, “Customer Items”); and (ii) that BrightGuest is not liable for, or responsible to, remediate any issues found regarding Customer Items. Customer agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the BrightGuest Platform, including without limitation, ensuring that its use of the SMS Services complies with the CAN SPAM Act, the Telephone Consumer Protection Act, the FTC Telemarketing Sales Rule and all other rules and regulations, including industry or carrier rules and regulations, relating to the sending of SMS messages; (b) not to send or store data on or to the BrightGuest Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain viruses, worms, Trojan Horses, corrupted files, or any other similar software or programs, harmful code or data that may damage the operation of the BrightGuest Platform or another’s computer or mobile device; (d) not to use the BrightGuest Platform for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere or disrupt networks connected to the BrightGuest Platform or interfere with others’ ability to access or use the BrightGuest Platform; (f) not to distribute, promote or transmit through the BrightGuest Platform any unlawful, harmful, false, misleading, discriminatory, defamatory, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) not to interfere with another customer’s use and enjoyment of the BrightGuest Platform or another person or entity’s use and enjoyment of similar services; (i) not to use the BrightGuest Platform in any manner that impairs the BrightGuest Platform, including without limitation the servers and networks on which the BrightGuest Platform are provided; (j) not to run Maillist, Listserv, any form of auto-responder or “spam” on the SMS Services, or any processes that run or are activated while Customer is not logged into the BrightGuest Platform, or that otherwise interfere with the proper working of the BrightGuest Platform (including by placing an unreasonable load on the BrightGuest Platform infrastructure); (k) not to launch any program that “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the BrightGuest Platform (through use of manual or automated means) and (l) to comply with all regulations, policies and procedures of networks connected to the BrightGuest Platform and BrightGuest’s service providers. Customer acknowledges and agrees that BrightGuest neither endorses the contents of any Customer communications, Customer Data, nor assumes any responsibility for any offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. BrightGuest may remove any violating content posted or stored using the BrightGuest Platform or transmitted through the BrightGuest Platform, without notice to Customer. Notwithstanding the foregoing, BrightGuest does not and is not obligated to verify, authenticate, monitor or edit the Customer Data or any other information or data input into or stored in the BrightGuest Platform for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data input into the BrightGuest Platform. BrightGuest does not guarantee or make any promises regarding the accuracy or completeness of the Customer Data, or any such other data or information. BrightGuest reserves the right to amend, alter, or modify Customer’s conduct requirements as set forth in these Additional Terms at any time. BrightGuest may deliver notice of such updated requirements to Customer via email or through the dashboard. Customer’s continued access to and use of the BrightGuest Platform following issuance of such updated Customer requirements shall constitute Customer’s acceptance thereof.

F. FEES.

Fees. Customer agrees to pay the Monthly and Annual Subscription Fees and Pay Per Engagement (non-subscription) Fees set forth in BrightGuest’s current pricing (collectively, “Fees”), including but not limited to Fees based on keyword add-ons or engagement overages. Unless otherwise specified in a Monthly or Annual Subscription, such Fees will be billed in advance of each month or year on the scheduled billing date and are non-refundable. If you exceed engagement thresholds set forth in your Monthly or Annual Subscription, we charge for such overages incrementally throughout your billing period at the price-per-engagement of your current subscription. Pay Per Engagement Fees are accrued and charged based on BrightGuest payment policy (https://www.brightguest.com/pricing/) in order to continue use of the BrightGuest Platform. Customer agrees that Customer may not be refunded or credited for partial months of service, or for periods in which Customer’s BrightGuest account remains open but Customer did not use the Services. All Fees are quoted and payable in United States currency. Fees are non‑refundable once paid.

If you upgrade to a higher-level Subscription, you will have immediate access to the higher volume of engagements. You will be charged the difference between the new Subscription Fee and your Current Subscription Fee.

We reserve the right to modify our service Fees at any time upon thirty (30) days written notice by posting these fee changes to the Site or by notifying you via email. Should you continue to use the Services after these changes go into effect, you will be responsible for paying the new Subscription rate or Fees.

Payments. By providing a payment method, you expressly authorize us to charge the applicable Fees on said payment method as well as other charges incurred thereto at regular intervals, all of which depend on your particular subscription and utilized services. We may suspend or terminate your account and/or access to our Services and this Website if your payment is late and/or your offered payment method (e.g., credit card) cannot be processed.

Customer agrees to provide a valid credit card, debit card, or other payment method approved by BrightGuest to pay for Monthly and Annual Subscription Fees, and Pay Per Engagement Fees and that BrightGuest can charge such credit card or debit card or other approved payment method on a monthly or annual basis and as charges accrue, as defined in BrightGuest’s payment policy, for the applicable Fees until the SMS Services are terminated. Payment shall only be deemed received by BrightGuest upon receipt of cleared funds. Payment shall be made in full without any abatement, set off or deduction on any goods. Where you authorize payment to be made by credit or debit card or other approved payment method then such authority shall be deemed as authority to BrightGuest to take all that Customer owes under or in connection with the SMS Services. You shall be responsible for any and all expenses incurred by BrightGuest in recovering amounts in case your credit or debit card is misused or declined for any reason, and shall pay interest on them (before and after judgment) at an annual rate of 5% above the base lending rate of the Fed calculated daily until payment is made in full. If amounts owed are charged to the payment method on the due date and the transaction is rejected by the financial institution, your BrightGuest account will be placed in a read-only mode for 14 days and then your account will be deleted, withholding of further SMS Services and/or suspension of existing SMS Services and no additional use of the SMS Services will continue until the failed transaction is paid in full.

G. OWNERSHIP.

BrightGuest Platform. As between BrightGuest and Customer, all right, title and interest in the BrightGuest Platform, the SMS Services and any other BrightGuest materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the BrightGuest Platform, including all copyright rights, patent rights, trademark rights, and other intellectual property rights in each of the foregoing, belong to and are retained solely by BrightGuest or BrightGuest’s licensors and providers, as applicable. Customer hereby does and will irrevocably assign to BrightGuest all ideas, feedback and suggestions made by Customer to BrightGuest regarding the BrightGuest Platform (collectively, “Feedback”) and all intellectual property rights in the Feedback. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as BrightGuest may reasonably request, to perfect such ownership of the Feedback. To the extent any of the rights, title and interest in and to Feedback or intellectual property rights therein cannot be assigned by Customer to BrightGuest, Customer hereby grants to BrightGuest an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. Except for the express licenses granted in Section 2.2 (License Grant), there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in these Additional Terms are reserved by BrightGuest.

Customer Data. As between BrightGuest and Customer, all right, title and interest in the Customer Data and all intellectual property rights in each of the foregoing, belong to and are retained solely by Customer. BrightGuest shall have the royalty-free, perpetual and irrevocable and worldwide right to collect, store, retain, analyze and process Customer Data relating to Customer and customers of Customer for the purposes of the performing its obligations under the Agreement and in connection with the use of the BrightGuest Platform. In addition, BrightGuest may monitor Customer’s use of the SMS Services and use data and information related to such use and Customer Data in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the SMS Services (“Aggregated Statistics”). As between Supplier and Customer, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by BrightGuest. BrightGuest may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.

H. TERM AND TERMINATION.

Term. This Agreement commences on the Effective Date and these Additional Terms shall continue on a monthly or annual basis thereafter until it has terminated as set forth herein.

Cancellation and Termination. Either party may terminate an account, the SMS Services and these Additional Terms for convenience at any time. Notice may be provided by cancelling within Customer’s account; notice may be provided by BrightGuest to the email address in Customer’s account; notice may be provided by Customer to BrightGuest with an email to support@brightguest.com from the email address affiliated with Customer’s account; notice may be provided by calling BrightGuest Support at (888) 978-6325 to request assistance with service cancellation or account deletion. BrightGuest reserves the right to verify Customer identity by asking for the last four (4) digits of the credit card on file, the type of card, and the billing address.

Cancellations must be completed at least one (1) business day prior to the end of your then-current subscription period, whether monthly or annual. Otherwise, billing for the next month or year will be processed automatically. Cancellations performed after billing date are not entitled to refunds, in whole or in part. The account or service is not automatically canceled because of inactivity and Customer is still liable for all Fees until the account has been canceled as noted above. Customer agrees that BrightGuest does not issue refunds or prorate partial billing cycles regardless of the account not being used or logged into. Cancellations are processed immediately, and canceled accounts enter a read-only mode for a period of 14 days. During this period, you can reactivate your account. After this 14-day period, accounts are deleted.

Downgrades to Monthly and Annual Subscriptions go into effect at the end of the Monthly or Annual Subscription period. No refunds or credits shall be issued for Monthly or Annual Subscription downgrades or cancellations, or from switching from an Annual to a Monthly Subscription before the end of the Annual Subscription period.

You are responsible for all charges accrued on your Account up to the time of cancellation, including all fees within the Subscription period in which you cancel. You agree that we may charge any unpaid Fees to your provided payment method and/or send you a bill for such unpaid fees.

Termination for Breach; Insolvency. Either party may terminate an Order, these SMS Services and these Additional Terms upon written notice if the other party has breached a material term of these Additional Terms and has not cured such breach within thirty (30) days of receipt of written notice from the non-breaching party specifying the breach. Either party may terminate these Additional Terms if (i) the other party has a receiver appointed for it or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor’s relief law; or (iv) the other party is liquidated or dissolved.

Failure to Pay/Customer Conduct. BrightGuest may suspend or terminate Customer’s and Users’ access to the BrightGuest Platform, at BrightGuest’s sole option, with notice to Customer, if: (i) the Fees are not paid when due, (ii) any credit or debit card charge for Fees is declined; or (iii) if Customer breaches the Compliance with Laws or Conduct provisions in Section E above, and such suspension or termination will continue until the applicable issue is resolved.

Effect of Termination. BrightGuest shall not be liable to Customer or any third party for BrightGuest’s suspension or termination of Customer’s access to, or right to use, the BrightGuest Platform as such termination or suspension is authorized under these Additional Terms. Upon the effective date of expiration or termination of these Additional Terms for any reason, whether by Customer or BrightGuest, (i) Customer’s right to access and use the BrightGuest Platform shall immediately cease, (ii) Customer and its Users’ access to the BrightGuest Platform will terminate and (iii) Customer shall cease accessing and using the BrightGuest Platform and BrightGuest may take such actions to preclude such access and use.

Survival. The following Sections of these Additional Terms shall survive the termination of these Additional Terms: Sections F (Fees and Taxes), G (Ownership), H (Term and Termination), I (Confidentiality), J (Warranty Disclaimer), K (Indemnification), K (Limitation of Liability), and L (General).

I. CONFIDENTIALITY.

Obligations. Each of the parties agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of these Additional Terms that a party knows or reasonably should know is considered confidential by the disclosing party (“Confidential Information”). The parties hereby agree that BrightGuest’s Confidential Information includes the terms and conditions of these Additional Terms, and any discussions related thereto as well as the BrightGuest Platform and materials provided with respect to the BrightGuest Platform. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without the prior written consent of the other party.

Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto.  A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of these Additional Terms; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.

Destruction or Return of Confidential Information. Upon expiration or termination of these Additional Terms for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.

J. WARRANTY DISCLAIMER.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRIGHTGUEST AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. BRIGHTGUEST DOES NOT WARRANT THAT THE BRIGHTGUEST PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE BIRGHTGUEST PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.

K. INDEMNIFICATION.

BrightGuest shall defend, or at its option settle, any third party claims or suits against Customer based on a claim that the BrightGuest Platform infringes any patent issued as of the Effective Date or any copyright or trade secret; and BrightGuest shall pay any final judgment entered against Customer in any such claim or suit or BrightGuest agreed to settlement amount; provided (a) BrightGuest is promptly notified by Customer in writing of such claim or suit, (b) BrightGuest or its designee has sole control of such defense and/or settlement, and (c) Customer gives all information and assistance requested by BrightGuest or such designee. To the extent that use of the BrightGuest Platform is enjoined, BrightGuest may at its option either (i) procure for Customer the right to use the BrightGuest Platform, (ii) replace the BrightGuest Platform with other suitable solution, or (iii) terminate these Additional Terms and refund to Customer the Fee(s) paid by Customer during the three (3) month period prior to such termination. BrightGuest shall have no liability under this Section or otherwise to the extent a claim or suit is based upon use of the BrightGuest Platform in combination with software or hardware not provided by BrightGuest. The terms in this Section shall be Customer’s sole and exclusive remedy in connection with third party claims of infringement.

L. LIMITATION OF LIABILITY.

Limitation on Direct Damages. IN NO EVENT SHALL BRIGHTGUEST’S AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO CLAIM, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, LESS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY BRIGHTGUEST TO CUSTOMER IN SATISFACTION OF ANY LIABILITY UNDER THIS AGREEMENT.

Waiver of Consequential Damages. IN NO EVENT SHALL BRIGHTGUEST OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR LOSS OF PROFITS, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF BRIGHTGUEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

M. GENERAL

The Terms, including, but not limited to the Dispute Resolution and Arbitration; Class Action Waiver provision, and General Provision, shall apply to the SMS Services and use of BrightGuest Platform. In the event of any conflict between the Terms and the Additional Terms, the Additional Terms will apply to the SMS Services and BrightGuest Platform.