Effective Date: August 11, 2021
The following terms and conditions (the "Agreement") govern all use of the Brilliant for Educators website (the "Site") and the products and services available on or at the Site (taken together with the Site, the "Educators Program"). The Educators Program is owned and operated by Brilliant Worldwide, Inc. ("Brilliant"). The Educators Program is offered subject to your (the "User's") acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Site by Brilliant. BY USING OR ACCESSING ANY PART OF THE EDUCATORS PROGRAM, YOU (the "User") AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN; IF YOU DO NOT AGREE, DO NOT USE OR ACCESS THE EDUCATORS PROGRAM.
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST BRILLIANT ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Brilliant reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time. It is User's responsibility to check this Agreement periodically for changes. User's continued use of the Educators Program following the posting of any changes to this Agreement constitutes acceptance of those changes.
Subject to the terms and conditions of this Agreement, the software and services provided in connection with the Educators Program may only be used for educational purposes. Brilliant may change, suspend or discontinue the Educators Program, including the availability of any feature, database or content, at any time. Brilliant may also impose limits on certain features and services or restrict User's access to parts or all of the Educators Program without notice or liability. Brilliant reserves the right, at its discretion, to modify this Agreement at any time by posting a notice on the Site, by sending User a notice via email or postal mail, or by other reasonable means. User shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Educators Program by User following such notification constitutes User's acceptance of the terms and conditions of this Agreement as modified.
User certifies to Brilliant that User is either (a) at least 13 years of age or (b) has obtained the legal consent of a teacher or legal guardian to enter this Agreement. If User is a teacher intending to invite students to use the Educators Program for educational purposes, User represents that User: (1) authorizes the collection, use, and disclosure of such students’ personal information as described in the Educators Program Privacy Statement; (2) will supervise such students’ use of the Educators Program; (3) has made the Educators Program Privacy Statement available to such students’ parents and guardians and has obtained consent from such parents and guardians for User’s students to use the Educators Program; (4) has confirmed with User’s school and/or school district that the Educators Program is appropriate for educational use and can be used by User and User’s invited students in compliance with all privacy notices, policies, or practices in effect in such schools and/or school districts.
User also certifies that User is legally permitted to use the Educators Program and takes full responsibility for the selection and use of the Educators Program. This Agreement is void where prohibited by law, and the right to access the Educators Program is revoked in such jurisdictions.
FEES AND PAYMENT.
The Educators Program is currently free, but Brilliant reserves the right to charge a fee at any time.
User agrees that all content and materials (collectively, "Content") delivered via the Educators Program or otherwise made available by Brilliant at the Site are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by Brilliant in writing, User agrees not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such materials or content. However, User may print or download a reasonable number of copies of the materials or content at this Site for User's own informational purposes; provided, that User retain all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any content, materials or design elements on the Site for any other purpose is strictly prohibited without the express prior written permission of Brilliant.
Use of the content or materials for any purpose not expressly permitted in this Agreement is prohibited. Any rights not expressly granted herein are reserved.
User shall not use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Educators Program or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Educators Program or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Educators Program. Brilliant reserves the right to bar any such activity.
User shall not attempt to gain unauthorized access to any portion or feature of the Educators Program, or any other systems or networks connected to the Educators Program or to any Brilliant server, or to any of the services offered on or through the Educators Program, by hacking, password "mining", or any other illegitimate means.
User shall not probe, scan or test the vulnerability of the Educators Program or any network connected to the Educators Program, nor breach the security or authentication measures on the Educators Program or any network connected to the Educators Program. User shall not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Educators Program, or any other customer of Brilliant, including any Brilliant account not owned by User, to its source, or exploit the Educators Program or any service or information made available or offered by or through the Educators Program, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than User's own information, as provided for by the Educators Program.
User shall not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Educators Program or Brilliant's systems or networks, or any systems or networks connected to the Educators Program or to Brilliant.
User shall not use any device, software or routine to interfere or attempt to interfere with the proper working of the Educators Program or any transaction being conducted on the Educators Program, or with any other person's use of the Educators Program.
User shall not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal User sends to Brilliant on or through the Educators Program. User shall not, in connection with the Educators Program, pretend (e.g. through impersonation) that User is any other individual or entity.
User shall not use the Educators Program or any Content for any purpose that is unlawful or prohibited by this Agreement, or that infringes the rights of Brilliant or others.
As a condition to using certain features of the Educators Program, User may be required to register with Brilliant and select a password and User name ("Brilliant User ID"). User shall provide Brilliant with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of User's account. User may not (i) select or use as a Brilliant User ID a name of another person with the intent to impersonate that person; or (ii) use as a Brilliant User ID a name subject to any rights of a person other than User without appropriate authorization. Brilliant reserves the right, in its discretion, to cancel or refuse registration of a Brilliant User ID. User shall be responsible for maintaining the confidentiality of User's Brilliant password and other account information.
THIRD PARTY SITES.
The Site may permit User to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. These other websites are not under Brilliant's control, and User acknowledges that Brilliant is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Brilliant. User further acknowledges and agrees that Brilliant shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods, information, or services available on or through any such website or resource.
User is responsible for all of its activity in connection with the Educators Program. User shall defend, indemnify, and hold harmless Brilliant, its affiliates, and each of its and its affiliates' employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from (i) User's use or misuse of the Educators Program; (ii) User's access to any part of the Educators Program, or (iii) otherwise from User's violation of this Agreement.
THE EDUCATORS PROGRAM (INCLUDING, WITHOUT LIMITATION, THE SITE AND ANY SOFTWARE) IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. BRILLIANT MAKES NO WARRANTY THAT (I) THE EDUCATORS PROGRAM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR (II) THE RESULTS OF USING THE EDUCATORS PROGRAM WILL MEET USER'S REQUIREMENTS. USER'S USE OF THE EDUCATORS PROGRAM IS SOLELY AT USER'S OWN RISK.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL BRILLIANT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE EDUCATORS PROGRAM (OR ANY CONTENT, PROGRAMS OR INFORMATION AVAILABLE THROUGH THE EDUCATORS PROGRAM): (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT OR INFORMATION OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF USER'S USE OF ANY CONTENT OR INFORMATION POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE AT OR THROUGH THE EDUCATORS PROGRAM, OR (IV) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $500.00 (U.S.). IN ADDITION, BRILLIANT SHALL NOT BE LIABLE FOR ANY LOSS OR LIABILITY RESULTING, DIRECTLY OR INDIRECTLY, FROM USER'S INABILITY TO ACCESS OR OTHERWISE USE THE SITE (INCLUDING, WITHOUT LIMITATION, ANY DELAYS OR INTERRUPTIONS DUE TO ELECTRONIC OR MECHANICAL EQUIPMENT FAILURES, DENIAL OF SERVICE ATTACKS, PROCESSING FAILURES, TELECOMMUNICATIONS OR INTERNET PROBLEMS OR UTILITY FAILURES).
Brilliant may terminate User's access to all or any part of the Educators Program at any time, with or without cause, effective upon notice thereof to User (provided that, if Brilliant determines there may be an immediate threat to Brilliant, it may terminate such access without notice).
Upon termination notice from Brilliant, User will (i) no longer access (or attempt to access) the Educators Program and (ii) delete all software (and copies thereof) provided in connection with the Educators Program. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers and limitations of liability.
EXPORT AND TRADE CONTROLS.
User agrees not to import, export, re-export, or transfer, directly or indirectly, any part of the Educators Program or any information provided on or pursuant to the Educators Program except in full compliance with all United States, foreign and other applicable laws and regulations.
Brilliant's Educators Program Privacy Statement is available here and is incorporated by this reference.
User is solely responsible for your interactions with other Educators Program users. Brilliant reserves the right, but has no obligation, to monitor disputes between User and other Educators Program users. If User has a dispute with one or more users of the Educators Program, User shall and hereby does release Brilliant (and its officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If User is a California resident, User waives California Civil Code §1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
When User visits the Site or sends e-mails to Brilliant, User is communicating with Brilliant electronically. User hereby consents to receive communications from Brilliant electronically. Brilliant will communicate with User by e-mail or by posting notices on the Site. User agrees that all agreements, notices, disclosures and other communications that Brilliant provides to User electronically satisfy any legal requirements that such communications be in writing.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
This Dispute Resolution by Binding Arbitration section is referred to in the Agreement as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Brilliant, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Educators Program, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Brilliant are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
YOU AND BRILLIANT AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND BRILLIANT AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Brilliant is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”). The Notice to Brilliant should be sent to email@example.com (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Brilliant and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Brilliant may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Brilliant or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Brilliant is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Brilliant and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Brilliant agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Brilliant will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Brilliant will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Brilliant will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this Agreement will continue to apply.
Notwithstanding any provision in this Agreement to the contrary, Brilliant agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Brilliant written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Brilliant shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Brilliant's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation including "line-noise" interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by User except with Brilliant's prior written consent. Brilliant may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof, and the parties submit to the exclusive jurisdiction and venue of the state and Federal courts located in San Francisco, California. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and User does not have any authority of any kind to bind Brilliant in any respect whatsoever.
DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE.
Brilliant has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act. The address of Brilliant's Designated Agent to Receive Notification of Claimed Infringement ("Designated Agent") is listed at the end of this policy.
It is Brilliant's policy to (1) block access to or remove content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
If User believes that content residing on or accessible through the Educators Program infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
It is Brilliant's policy:
If the content provider, member or user believes that the content that was removed or to which access was disabled is either not infringing, or the content provider, member or user believes that it has the right to post and use such content from the copyright owner, the copyright owner's agent or pursuant to the law, the content provider, member or user must send a counter-notice containing the following information to the Designated Agent listed below:
If a counter-notice is received by the Designated Agent, Brilliant may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Brilliant's discretion.
Please contact Brilliant's Designated Agent to Receive Notification of Claimed Infringement at the following address:
Brilliant DMCA Claims
Brilliant Worldwide, Inc.
550 Montgomery Street Suite 800
San Francisco, CA 94111