Brilliant Home Technology
Pre-Order Terms of Sale, Refund Policy, and Website Terms of Service
Last Updated: February 8th, 2017
Welcome to the Brilliant Home Technology, Inc. (“Brilliant Technology,” “us” or “we”) website located at www.brilliant.tech (the “Site”). Please read these Pre-Order Terms of Sale and Website Terms of Service (the “Terms”) carefully because they govern your use of our Site (and our product purchasing services accessible via our Site) and also set forth the terms upon which Brilliant Technology sells, and you may pre-order and purchase the Brilliant Technology devices offered by Brilliant Technology through our Site (each a “Product”) during our pre-order campaign. Any software installed on our Products is licensed to you, not sold. You may only use the software for its normal, intended use with our Products and in accordance with the Software License section below. When we say “sell” and “purchase” in these Terms, we mean “sell” and “purchase” only with respect to the non-software elements of the Product. To make these Terms easier to read, the Site and our services are collectively called the “Services.”
Agreement to Terms
By using our Services or purchasing a Product, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Services.
Certain services, software or content that we offer may be subject to additional terms and conditions specified by us from time to time. In the event of a conflict between the additional terms and conditions or other agreement and any provision in these Terms, the additional terms or other agreement will prevail.
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the modified Terms whenever we modify them because if you continue to use the Services after we have posted the modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “ARBITRATION” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION “SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND BRILLIANT TECHNOLOGY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Who May Use the Services
You may use the Services to purchase our Products only if you are 18 years or older and capable of forming a binding contract with Brilliant Technology and are not barred from using the Services under applicable law.
The Services enable you to order Products from Brilliant Technology and participate in our pre-order campaign, as further described below.
Ordering and Payment. When you place an order for any Products via the Services, you agree (a) that Brilliant Technology may charge the credit card, debit card or other payment method you have chosen for your purchase verification, pre-authorization and payment purposes for the total amount of your order (including any applicable taxes, shipping and handling fees) directly or through a third party payment processor, and (b) to bear any additional charges that your bank or other financial service provider may levy on you. When your order is accepted by Brilliant Technology, we will send you an email which will include details of your order and an order number that you should refer to if you have any questions regarding your order.
Prices and Taxes. All prices displayed via the Services are in U.S. dollars and are subject to change at any time without notice. The prices displayed do not include any shipping and handling charges or applicable taxes, which charges and taxes will be communicated to you at check out before you place an order and you are responsible for paying such charges and taxes to Brilliant Technology.
Pre-Orders. Currently, any order placed for our Products via the Services will be a pre-order. A pre-order requires that you pay in full the amount due and payable for the Product(s) you order via the Services (including any applicable taxes, shipping and handling fees) in advance and prior to the manufacture of the Product. Pre-orders are expected to ship no sooner than September 1, 2017. Approximately two (2) weeks before we expect to ship pre-orders we will send you an email to the email address you provide with your order. The email will provide an estimated date of shipping for your Product and instructions on how you can change the shipping address for your Product, if necessary.
Shipping. We may not be able to deliver to all locations. Our Products are currently only available in the U.S. You acknowledge and agree that all shipping dates in any communications from us (including as stated in these Terms) are estimates and subject to change. We do not represent or warrant that we will be able to ship the Product by the estimated date. You understand and agree that currently we are not able to commit to a fixed shipping or delivery date and you will be notified of updates to the same in accordance with the notice provisions of these Terms. In the event that a delay arises for any reason, foreseen or unforeseen, and the estimated shipment and/or release dates for the Product are not met, we will not be liable for any losses or damages that may occur due to the delay or cancellation of the Product, and we will not be obligated, except as set forth in these Terms, to provide any discounts, refunds or credits due to any such delays or cancellations.
Title to Products passes from Brilliant Technology to you upon shipment from Brilliant Technology’s facility. You are responsible for keeping us informed regarding the correct delivery address for the Product.
No Cancellation of Pre-Orders. YOU MAY NOT CANCEL YOUR PRE-ORDER ONCE PLACED THROUGH THE SERVICES AND NO REFUNDS FOR PRE-ORDERED PRODUCTS WILL BE GIVEN PRIOR TO THE DATE OF DELIVERY OF YOUR PRODUCT. ANY REFUNDS FOR PRODUCT PURCHASES WILL BE ADMINISTERED IN ACCORDANCE WITH OUR “REFUND POLICY” SET FORTH BELOW.
If we cannot deliver the Products you pre-ordered, we will send an email to you at the email address you provided with your order informing you that your pre-order has been cancelled and we will refund the total pre-order payment amount to the payment method you provided within a reasonable amount of time after processing your request.
Return Policy. If you purchased your Product directly from us via the Services, and you are unsatisfied with your purchase for any reason, you may return the Product to us for a full refund within the thirty (30) days following the date on which the Product is delivered to you.
All Products that are returned to us become our property. [We’re not responsible for any memory card, content or information stored in any Product you return to us, whether under warranty or not. Please make sure to save any content or information you wish to keep from your Product’s memory card and erase any data thereon before returning your Product to us.]
To qualify for a refund, all of the following conditions must be met:
• A Return Merchandise Authorization (RMA) must be requested from Brilliant Technology’s customer service team within the thirty (30) days following the date on which the Product is delivered to you. To request an RMA, send us an email to firstname.lastname@example.org with RMA in the subject line and the order number in the body of the message.
• Returned Products must be in good physical condition (not physically broken or damaged).
• All accessories originally included with your purchase must be included with your return.
• The RMA number must be included along with your returned Products.
Additional terms and conditions:
• Shipping and handling charges, and taxes paid are not refundable.
• You are responsible for and must prepay all shipping charges to return Product and you assume all risk of loss or damage to the Products while in transit to Brilliant Technology.
• If you return Products to Brilliant Technology (a) without an RMA from Brilliant Technology or (b) without all parts included in the original package, Brilliant Technology retains the right to either refuse delivery of such return or accept delivery and charge you a restocking fee of 15% of the original price of the Product or the retail value of the missing accessories, whichever is higher.
• Refunds will be processed and paid within two (2) weeks of Brilliant Technology’s receipt of the returned Product.
Please see the Section below titled “Limited Warranty and Disclaimers” for information on the warranty terms applicable to the Product.
You may only purchase Products for your personal use. You may not commercially resell any Product, but you may give the Product as a gift. These Terms apply to any gift recipient.
Telecommunications and Internet Services; Third Party Materials
You acknowledge that use of the Products require access to telecommunications and Internet services. You are solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to use the Product including, without limitation, any and all costs, fees, expenses and taxes of any kind related to the foregoing. Brilliant Technology is not responsible for any loss or corruption of data, lost communications or any other loss or damage of any kind arising from any such telecommunications and Internet services.
You also understand that the Product may only be compatible with certain third-party devices and services , and Brilliant Technology makes no warranty with respect to such third-party devices and services or their compatibility with the Product. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party devices and services.
Please carefully read the instructions for the Product. In order to keep your Product up-to-date or to provide enhanced functionality for the Product, Brilliant Technology may automatically provide the Product with updates or upgrades. [You can check our Site for information on when enhanced functionality may become available.]
Subject to your compliance with these Terms, Brilliant Technology grants you a limited non-exclusive, non-transferable, non-sublicenseable license to use the software in the Product, and any updates or upgrades provided by Brilliant Technology (the “Software”), solely as installed on, and part of your use of, the Product for your own personal, non-commercial purposes and for no other purposes. You may not (i) copy, modify or create derivative works based on the Software; (ii) distribute, transfer, sublicense, lease, lend or rent the Software to any third party; (iii) reverse engineer, decompile or disassemble the Software; or (iv) make the functionality of the Software available to multiple users through any means. Brilliant Technology reserves all rights in and to the Software not expressly granted to you under these Terms. All Software is protected by U.S. copyright law and international treaties.
All software contained in the Products and any related documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. To the extent that the Products are being acquired by or on behalf of the U.S. Government then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the software and any related documentation will be only those specified in these Terms.
We welcome feedback, comments and suggestions for improvements to our products and services (“Feedback”). You can submit Feedback by emailing us at email@example.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, transferable license, with the right to grant sublicenses, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content and Content Rights
For purposes of these Terms: (i) “Content” means text, graphics, images, music, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that users of the Services (including you) provide to be made available through the Services. Content includes without limitation User Content.
Content Ownership, Responsibility and Removal
Brilliant Technology does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Brilliant Technology and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You
By making any User Content available through Services you hereby grant to Brilliant Technology a non-exclusive, transferable, sublicenseable, worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content to you and to other users.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content, nor any use of your User Content by Brilliant Technology on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
If you wish to have your User Content removed from the Services you can email us with such a request. However, in certain instances some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We’re not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Rights in Content Granted by Brilliant Technology
Subject to your compliance with these Terms, Brilliant Technology grants you a limited, non-exclusive, non-transferable, non-sublicensable license to view and display the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
You agree not to do any of the following:
• Use the Services in any way, or upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
• Use, display, mirror or frame the Services, or any individual element within the Services, Brilliant Technology’s name, any Brilliant Technology trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Brilliant Technology’s express written consent;
• Access, tamper with, or use non-public areas of the Services, Brilliant Technology’s computer systems, or the technical delivery systems of Brilliant Technology’s providers;
• Attempt to probe, scan, or test the vulnerability of any Brilliant Technology system or network or breach any security or authentication measures;
• Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Brilliant Technology or any of Brilliant Technology’s providers or any other third party (including another user) to protect the Services or Content;
• Attempt to access or search the Services or Content or download Content from the 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 Brilliant Technology or other generally available third party web browsers;
• Use any meta tags or other hidden text or metadata utilizing a Brilliant Technology trademark, logo, URL or product name without Brilliant Technology’s express written consent;
• Use the Services or Content for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the 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 Services;
• Collect or store any personally identifiable information from the Services from other users of the 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.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. Upon any termination, discontinuation or cancellation of Services, all provisions of these Terms which by their nature should survive will survive, including, without limitation, the provisions entitled “Agreement to Terms,” “Feedback,” “Content and Content Rights,” “General Prohibitions and Our Enforcement Rights,” “Links to Third Party Websites or Resources,” “Termination,” “Warranty Disclaimers,” “Indemnity,” “Limitation of Liability,” “Dispute Resolution” and “General Terms.”
Limited Product Warranty and Disclaimers
Brilliant Technology warrants the Product against defects in materials and workmanship under normal use for a period of one (1) year from the date of purchase by you ("Warranty Period"). Under this limited warranty, if a hardware defect arises and a valid claim is received by Brilliant Technology within the Warranty Period, at its option and to the extent permitted by law, Brilliant Technology will either (1) repair the Product at no charge, using new or refurbished replacement parts or (2) exchange the Product with a new or refurbished Product. The foregoing states Brilliant Technology’s sole liability and your sole and exclusive remedy for any breach of the limited warranty set forth herein. This limited warranty is valid only in the United States for Products sold in the United States. Replacement Products or parts will be warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer. When a Product or part of the Product is exchanged, any replacement item becomes your property and the replaced item becomes Brilliant Technology's property. Parts provided by Brilliant Technology in fulfillment of its warranty obligation hereunder must be used in Products for which warranty service is claimed. To obtain warranty service, you must deliver the Product, shipping prepaid, in either its original packaging or packaging providing an equal degree of protection, to the address specified by Brilliant Technology. In accordance with applicable law, Brilliant Technology may require that you furnish proof of purchase details and/or comply with registration requirements (if any) before receiving warranty service. It is your responsibility to backup any data, software, or other materials you may have stored or preserved on the Product. It is likely that such data, software, or other materials will be lost or reformatted during warranty service, and Brilliant Technology will not be responsible for any such damage or loss. You must obtain a RMA number from Brilliant Technology prior to returning any Products to Brilliant Technology. If Brilliant Technology determines that a Product returned by you complies with the warranty set forth herein, then you will also bear Brilliant Technology’s cost of shipping the Product back to you. For specific instructions on how to obtain warranty service on a Product, send an email to firstname.lastname@example.org with your request.
The limited warranty above applies only to Products manufactured by or for Brilliant Technology that can be identified by the "Brilliant Technology" trademark, trade name, or logo affixed to it. This limited warranty does not apply to any (a) non-Brilliant Technology hardware product, (b) consumables (such as batteries), or (c) software, even if packaged or sold with the Product or embedded in the Product. Brilliant Technology will have no obligation to the extent that any failure of a Product to comply with the limited warranty set forth above results from or is otherwise attributable to: (i) negligence or misuse or abuse of the Product; (ii) use of the Product other than in accordance with Brilliant Technology’s published specifications or user manual; (iii) modifications, alterations or repairs to the Product made by a party other than Brilliant Technology or a party authorized by Brilliant Technology; (iv) use of the Product in combination with any third-party devices or products that have not been provided or recommended by Brilliant Technology; (v) damage caused by accident, abuse, flood, fire, earthquake or other external causes; or (vi) damages caused by operating the Products with improper voltage or power supply.
ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE LIMITED TO THE DURATION OF THE APPLICABLE EXPRESS WARRANTY. ALL OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, ARE DISCLAIMED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BRILLIANT TECHNOLOGY OR ELSEWHERE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. This warranty gives you specific legal rights, and you may also have other rights which vary by jurisdiction. BRILLIANT TECHNOLOGY DOES NOT WARRANT THAT THE OPERATION OF PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
Services and Content Warranty Disclaimers
The Services and Content are provided “AS IS,” without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold Brilliant Technology and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content; (ii) your User Content; or (iii) your violation of these Terms.
Limitation of Liability
IN NO EVENT WILL BRILLIANT TECHNOLOGY BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS, THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT BRILLIANT TECHNOLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. BRILLIANT TECHNOLOGY AND YOU HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
WITH RESPECT TO THE SERVICES OR CONTENT, IN NO EVENT WILL BRILLIANT TECHNOLOGY’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, EXCEED THE ACTUAL AMOUNT PAID TO BRILLIANT TECHNOLOGY PAID BY YOU FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO BRILLIANT TECHNOLOGY, AS APPLICABLE.
WITH RESPECT TO THE PRODUCTS, IN NO EVENT WILL BRILLIANT TECHNOLOGY’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, USE OR INABILITY TO USE THE PRODUCTS EXCEED THE ACTUAL AMOUNT PAID TO BRILLIANT TECHNOLOGY BY YOU FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
General. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BRILLIANT TECHNOLOGY AND YOU.
Governing Law. These Terms and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
Agreement to Arbitrate. You and Brilliant Technology 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 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 Southern District of New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Brilliant Technology 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 Brilliant Technology 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. 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 a separate Demand for Arbitration for California residents.) 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 Brilliant Technology 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 Brilliant Technology 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. Brilliant Technology 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, Brilliant Technology 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 “Changes to Terms or Services” section above, if Brilliant Technology 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 email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Brilliant Technology’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 Brilliant Technology 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).
These Terms constitute the entire and exclusive understanding and agreement between Brilliant Technology and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Brilliant Technology and you regarding the Services and Content. 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.
You may not assign or transfer these Terms, by operation of law or otherwise, without Brilliant Technology’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Brilliant Technology may freely assign or transfer these Terms 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 provided by Brilliant Technology under these Terms, including those regarding modifications to these Terms, will be given by Brilliant Technology: (i) via email to the email address you provide us via the Services; 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.
Brilliant Technology’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Brilliant Technology. 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 you have any questions about these Terms or the Services, please contact Brilliant Technology at firstname.lastname@example.org or Brilliant Home Technology, Attn: Terms and Services, 241A S. San Mateo Drive, San Mateo, CA, 94401.