Welcome to the online store (the "website") provided by Bryte, Inc. ("Bryte"). Your purchase of products ("Products") from the website constitutes your agreement to be bound by these Terms & Conditions of Sale ("Terms & Conditions") and any additional terms we provide, including but not limited to our Terms of Service and End User License Agreement. Wherever appropriate in the context and to the broadest degree possible, the term Products includes the Services as defined in the Terms of Service. Notwithstanding the foregoing, the Services are: (a) licensed not sold and all references to sales with respect to the Services aspect of the Product shall mean licensed; (b) subject to the Terms of Service, which will supersede any conflicting terms in these Sales Terms.
THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS & CONDITIONS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS & CONDITIONS. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO PURCHASE AND USE PRODUCTS AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS & CONDITIONS, YOU SHOULD NOT PURCHASE THE PRODUCTS.
We reserve the right to change these Terms & Conditions at any time, so please review the Terms & Conditions each time prior to making a purchase. Every time you order Products from Bryte, the Terms & Conditions in force at that time will apply between you and Bryte. If you have any questions regarding these Terms & Conditions, you can contact Bryte.
The website is for retail sales to private consumers only. Please contact hello@bryte.com if you wish to purchase wholesale supplies.
Please read these terms carefully. They require the use of binding arbitration to resolve disputes rather than jury trials or class actions. Please follow the instructions in the Dispute Resolution and Arbitration section below if you wish to opt out of this provision. As a consumer, you have certain legal rights. The disclaimers, exclusions, and limitations of liability under these Terms & Conditions will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties, including exclusions relating to products or services that are faulty or not as described, or the exclusion or limitation of incidental or consequential damages or other rights. For a full description of your legal rights you should refer to the laws applicable in your country or jurisdiction. Nothing in these Terms & Conditions will affect those other legal rights.
Although our website is accessible worldwide, the Products offered are not designed and tested for use in all countries. If you choose to access the website and/or use the Products outside the United States ("Target Country") you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the website and the Products are not designed for use in a non-Target Country and some or all of the features of the website and Products may not work or be appropriate for use in such a country. To the extent permissible by law, Bryte accepts no responsibility or liability for any damage or loss caused by your access or use of the website or Products in a non-Target Country.
As a “smart” product, the Bryte bed has embedded software and also interacts with our application (the mobile app) and web-based services. Collectively, this technology provides the smart elements and some of the features of the Bryte Bed. When you purchase a Bryte bed, you must also purchase the service to access these technologies. A lifetime subscription is for the lifetime of the bed you purchased.
You acknowledge that you have verified the compatibility of the Product to your mobile device. You are solely responsible for determining the compatibility of the Product in your home, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Product and does not otherwise constitute a basis for receiving a refund after the 120-day refund policy described below.
By providing a credit card or other payment method accepted by Bryte, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your order (including, in all cases, any applicable taxes and other charges). If the payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or canceled. You must resolve any problem we encounter in order to proceed with your order. In the event you want to change or update payment information associated with your Bryte account, you can do so at any time by logging into your account and editing your payment information or reaching out to hello@bryte.com.
All Products offered on the website are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue offering certain Products without prior notice (subject to the paragraph below). Prices for the Products or the Services are subject to change at any time, but changes will not affect any order for Products you have already placed.
The software that runs the Bryte Balance bed will be updated and supported by Bryte according to its general schedule for all consumers. Before ending support and software updates for a product that is End of Life (“Product Transition”), Bryte will provide you with at least 90 days’ notice.
6. Sales Tax.
Depending on the order, Bryte calculates and charges sales tax in accordance with applicable laws.
Purchases made on the website are intended for end users only, and are not authorized for resale. Title for Products purchased from the website passes to the purchaser at the time of delivery by Bryte to the freight carrier, but Bryte and/or the freight carrier will be responsible for any Product loss or damage that occurs when the Product is in transit to you.
With the purchase of a Bryte bed, you can purchase home delivery and in-home set up within our U.S. delivery areas. For in-home setup and mattress removal, an adult must be present at the scheduled time and delivery address. If no adult is present at the time of delivery, the carrier will take the bed back to storage and call the customer to reschedule the delivery. Bryte reserves the right to charge for the additional fee. The removal of your old mattress may be available upon request. All mattresses removed using Bryte’s in-home setup must be in sanitary condition.
The estimated arrival or delivery date is not a guaranteed delivery date for your order. Refused deliveries will be returned to our warehouse. It may take up to 45 days for the returned items to be identified as refused and processed for a refund.
The Products available on the website have been designed, marketed and sold for use by residents of the United States. All safety warnings, information, instructions, packaging, in-box materials, Services, and support services are provided only in English(U.S.). The Products and Services available on the website are not intended for use outside of the United States, as applicable. You are responsible for complying with all applicable laws and regulations of the country for which the Product is destined. We are not liable or responsible if you break any such law.
To ensure your satisfaction, your Bryte Bed may be returned to us for a full refund within 100 days from the date of delivery, provided your Bryte Bed is clean, undamaged, and has been used as expected with care. Services are non-refundable. We will process the refund due to you as soon as possible and, in any case, within 30 days from the date of receipt by Bryte of the returned Product. You could be charged for the shipping costs incurred in any returns.
You agree not to use the Bryte Bed or any of the Services for any improper or illegal purpose and not to engage in any Misuse (defined below). Misuse (e.g. smoking in bed) may damage the bed and create a hazardous situation. It is a violation of this agreement, voids the warranty, and may trigger the Bryte Bed and Services to shut down or limit functionality. The Bryte Bed does not have features to alert emergency services should you experience an emergency or dangerous situation.
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Arbitration. Bryte and you agree to arbitrate all disputes and claims that arise from or relating to these Terms & Conditions or your use of the Products or Services in any way, except for claims arising from bodily injury. This agreement to arbitrate is intended to be broadly interpreted, including, for example:
This arbitration agreement does not preclude either of us from bringing an individualized action in small claims court. It also does not preclude either of us from seeking an individualized preliminary injunction or temporary restraining order, pending arbitration, in any court that has jurisdiction. Nor does this arbitration agreement bar you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. In addition, you or Bryte may seek injunctive or other equitable relief to protect your or its trade secrets and intellectual property rights or to prevent loss or damage to its services in any court with competent jurisdiction.
You agree that, by entering into this agreement, we are each waiving the right to a trial by jury or to participate in a class or representative action. These Terms & Conditions evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.
(b) Notice of disputes. If either of us intends to seek arbitration of a dispute, that party must provide the other with notice in writing. The notice to Bryte should be sent to: hello@bryte.com.
Bryte will send notice to you at the e-mail and/or mailing addresses associated with your account. Your notice to Bryte must (a) provide your name, mailing address, and email address; (b) describe the dispute; and (c) state the relief you are requesting. If we are unable to reach an agreement to resolve the dispute within 60 days after the notice is received, you or we may commence arbitration.
(c) Arbitration procedures. The arbitration will be governed by the Consumer Arbitration Rules ("AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. If the AAA is unavailable, the parties shall agree to another arbitration provider or the court shall appoint a substitute. Unless you and we agree otherwise, any arbitration hearings will take place in the county (or parish) where you are receiving Bryte Services. If the value of your claim is $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing. If the value of 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 shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of this arbitration provision or the arbitrability of disputes are for the court to decide. The arbitrator may consider but is not bound by rulings in other arbitrations between Bryte and Bryte users. The arbitrator can award the same individualized damages and relief that a court can award. Judgment on the award may be entered by any court having jurisdiction.
(d) Costs of arbitration. The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at www.adr.org or by calling the AAA at 1-800-778-7879). Bryte will pay all AAA filing, administrative, and arbitrator fees for any arbitration that Bryte commences. If you provided Bryte with 60 days’ notice of your intent to arbitrate before commencing arbitration and the value of your claim is $75,000 or less, Bryte will pay your share of any such AAA fees. If the value of your claim exceeds $75,000, the allocation of AAA fees will be governed by the AAA Rules (unless the law of your state requires Bryte to pay all such fees). If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA fees shall be governed by the AAA Rules. In such cases, the arbitrator may direct you to reimburse Bryte for amounts that Bryte paid on your behalf.
(e) No class arbitration. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND BRYTE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. Bryte and you agree to arbitrate all disputes and claims that arise from or relating to these Terms & Conditions or your use of the Products or Services in any way, except for claims arising from bodily injury.
(f) 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this section, you must notify Bryte in writing within 30 days of the date that you first accept these Terms & Conditions (unless a longer period is required by applicable law). Your written notification must be mailed to Bryte at the following address: Bryte, Inc. 221 Main Street, #570, Los Altos, CA 94022. Subject to subsection (g) below, if you do not notify Bryte in accordance with this subsection (f), you agree to be bound by the arbitration and class-action waiver provisions of these Terms & Conditions, including such provisions in any Terms & Conditions revised after the date of your first acceptance.
Such notification must include: (a) your name, (b) the email address associated with your Bryte account, (c) your mailing address, and (d) a statement that you do not wish to resolve disputes with Bryte through arbitration. This notification affects these Terms & Conditions only; if you previously entered into other arbitration agreements with Bryte or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms & Conditions shall not affect the other arbitration agreements between you and Bryte.
(g) Future changes to arbitration provision. If Bryte makes any changes to the Dispute Resolutions and Arbitration section of these Terms & Conditions (other than a change to the address at which Bryte will receive notices of dispute, opt-out notices, or rejections of future changes to the Dispute Resolution and Arbitration section), you may reject any such change by sending us written notice within 30 days of the change to hello@bryte.com. It is not necessary to send us a rejection of a future change to the Dispute Resolution and Arbitration section of these Terms & Conditions if you had properly opted out of the arbitration and class-action waiver provisions in this section within the first 30 days after you first accepted these Terms & Conditions. If you have not properly opted out of the arbitration and class-action waiver provisions in this section, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject.
a) Limited Bed Warranty.
Your new Bryte Bed is covered by a 10-year limited warranty (the “Bed Warranty”). This limited Bed Warranty gives you specific legal rights, and you may also have other rights, which vary from state to state.
This limited Bed Warranty extends to Beds manufactured by Bryte Inc. (“Bryte”), purchased directly from Bryte or Bryte’s authorized retailers and located in the United States (not including US territories) (the “Bed” or “Beds”). Beds are designed to work (a) on a firm, solid surface, and (b) on a bed base that is structurally capable of supporting the weight of the Bed and user(s) the bed is set up according to the set up instructions (collectively, “Proper Setup”). This Bed Warranty does not cover your Product if you (x) use it in a manner incompatible with that intended design, any documentation provided with the bed, or common sense; or (y) Misuse the Bed.
This limited Bed Warranty extends to the original purchaser of the Bed who is located in the United States (not including US territories). All Bryte warranties, including any implied warranties, are valid only for the period of time the Bed is owned by the original purchaser of the Bed. The “original purchaser,” for the purposes of this Bed Warranty, is the first purchaser of the Bed from Bryte or a Bryte authorized retailer. Please retain a copy of your receipt as proof of purchase. All Bryte limited warranties are not transferable.
Bryte warrants the Bed in its original packaging sold to you against the defects in material and workmanship set forth below (“Defects”) for a period of 10 years from the time your Bed is purchased by you, when the Bed is used normally for its intended purposes and with Proper Setup.
This limited Bed Warranty applies to defects in materials and workmanship (“Defects”). The existence of Defects will be determined in Bryte’s reasonable, sole discretion.
This limited Bed Warranty does not cover the following (“Misuse”):
(a) A normal increase in softness of the foam, pressure-relieving material that does not affect the pressure-relieving qualities of the Bed.
(b) Comfort preference.
(c) Physical abuse, excessive use, use beyond normal sleep use, misuse, or damage to the structure and/or cover material, including but not limited to, burns, cuts, tears, smoking in bed, liquid damage, or stains; provided, that the defect is caused by such abuse or damage.
(d) Unauthorized opening or tampering with the top mattress
(e) Modifications of the Bryte Bed or any of its physical or electronic (hardware, software, or firmware) components.
(f) Use of third-party extension cords and surge protectors.
(g) Use in harmful environmental conditions (excessive or low temperature, humidity, etc.) or outdoors.
(h) Replacement of any non-defective pieces in the Bryte Bed (for example, if you purchase a Bed with multiple components and only one component is defective, then we will only replace the defective component).
(i) A Bed sold by resellers who are not authorized retailers.
(j) Beds sold “as-is”, “preconditioned”, “reconditioned”, “used”, “comfort return”, “returned”, “previously owned”, or any other similar wording indicating that the Bed is not “new” or of “first quality” or has previously been purchased or used by another consumer. In the event of a Defect, Bryte’s sole and exclusive liability and your sole and exclusive remedy under this limited Bed Warranty will be, at Bryte’s option, to provide a repaired or replacement Bed or if a repair or replacement is not commercially feasible, to refund your purchase price minus a prorated portion for prior use, subject to your fulfillment of “Your responsibilities” below. The repaired or replacement Bed will have a Bed Warranty that extends from the time of the purchase of the original Bed (not receipt of the repaired or replacement Bed).
In the event of a Defect and in order to get the benefit of this limited Bed Warranty, you must return your Bed to Bryte and provide Bryte with proof of the original date of purchase. Should shipping costs be required to return your Bed that is determined by us to be defective, you will not be responsible for those costs. Evidence of a Defect and any claims must be sent to hello@Bryte.com
As far as permitted by applicable law, the website, and all content available on the website, is provided on an "as-is" basis without warranties or conditions of any kind, either express or implied, including, without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose. All products and services purchased through the website are provided on an "as-is" basis unless otherwise noted in the Limited Warranty. To initiate a return under the Limited Warranty for your Bryte Product, you should contact Bryte.
You use any Products at your own discretion and risk. You will be solely responsible for (and Bryte disclaims) any and all loss, liability or damages resulting from your use of a Product or any Misuse, including damage or loss to your HVAC system, home, Product, other peripherals connected to the Product, computer, mobile device, and all other items and pets in your home. Unless explicitly promising a "guarantee," Bryte does not guarantee or promise any specific level of health benefit from the use of a Product or any feature of them. Actual sleep and wellness benefits vary with factors beyond Bryte’s control or knowledge.
The Product (and related technology) is not nor does it provide medical or psychiatric advice or care, nor is it a substitute for medical or psychiatric advice or care. You should consult a qualified physician for any medical issues or concerns. Product and related technology recommendations and analysis are for informational purposes only and your reliance on them is at your own risk.
Our goal is to provide helpful and accurate information through the Product and related technology, but we make no endorsement, representation, or warranty of any kind about any Product or related technology content, information, or services. The accuracy of the data collected and presented through the Product, Product Software, Bryte Bed, Bryte App, Website and any other Bryte products, or services is not intended to match that of medical devices or scientific measurement devices.
We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through Bryte’s products and services.
Use of the Bryte products and services should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your use of Bryte products and services.
Bryte products and services are not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using Bryte products and services. If you experience a medical emergency, consult with a medical professional. We are not responsible for any health problems that may result from use of the Bryte products and services.
Nothing in these Terms & Conditions and in particular within this "Limitation of Liability" section shall attempt to exclude or limit liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) BRYTE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR SERVICES, EVEN IF BRYTE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) BRYTE’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO BRYTE OR BRYTE’S AUTHORIZED RESELLER FOR THE PRODUCT OR SERVICE AT ISSUE IN THE PRIOR 6 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. BRYTE DISCLAIMS ALL LIABILITY OF ANY KIND OF BRYTE’S LICENSORS AND SUPPLIERS.
By placing an order for Products, you agree and understand that Bryte may store, share, process, and use data collected from your order form or phone/fax/email order for the purposes of processing the order. Bryte may also share such data globally with its subsidiaries. Bryte will protect your information in accordance with the Bryte Privacy Policy available here: https://www.bryte.com/app/privacy-policy. Bryte works with other companies that help Bryte provide Products to you, such as freight carriers and credit card processing companies, and Bryte may have to share certain information with these companies for this purpose.
You are communicating with Bryte electronically when you use the website or send email to Bryte. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you order on the website, we collect and store your email address. From that point forward, your email address is used to send you information about Bryte’s products and services unless you opt-out of such emails using the opt-out link in the emails.
Bryte may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Bryte account, hard copy, or posting of such notice on the Bryte website. Bryte is not responsible for any automatic filtering you or your network provider may apply to email notifications. Bryte recommends that you add @bryte.com URLs to your email address book to help ensure you receive email notifications from Bryte.
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
Notwithstanding anything to the contrary, Bryte may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
If any part of these Terms & Conditions becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part of a provision will be deemed to not form part of the contract between us. The legality, validity, or enforceability of the remainder of these Terms & Conditions will remain in full force and effect.
The obligations in Sections 11 through 23 will survive any expiration or termination of these Terms.
Failure or delay by us to enforce any of these Terms & Conditions will not constitute a waiver of our rights against you and does not affect our right to require future performance.
These Terms & Conditions are governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Santa Clara County, California for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in an above section.
Terms of Service
Bryte, Inc. and its subsidiaries (collectively, “Bryte”) provides (1) the Bryte website located at www.bryte.com, and all associated sites linked to www.bryte.com including the Bryte user account website that may be accessed through www.bryte.com, if any (each a “Site”), (2) services accessible through the Sites (“Web Apps”), and (3) software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”), all for use in conjunction with Bryte hardware products (including its associated technology) (“Products”) and in other ways that Bryte provides. Some Bryte Products and Services can be used together or in ways that integrate with products and services from third parties. The term “Services” means the Sites, Web Apps, and Mobile Apps. If you choose to use the Bryte Cloud, that is also included within the definition of Services.
Details of the standard features as of October 1, 2022:
Details of the member-only features as of October 1, 2022:
These Terms of Service (“Terms” or “Agreement”) govern your access to, and use of, the Services and Products. Please read these Terms carefully. They require the use of mandatory binding arbitration to resolve disputes rather than jury trials or group litigation. Please follow the instructions in the Dispute Resolution and Arbitration Section below if you wish to opt out of this provision. The term “you”, as used in these Terms, means any person or entity who accesses or uses the Services or Products and any person or entity who creates an Account (as defined in Section 2(a) and accepts these Terms, including Owners, Authorized Users (as defined in Section 2(b), and the parents or guardians of Authorized Users, as applicable (as described in Section 1((b)(ii)). These Terms give you specific legal rights. In addition, you may also have other legal rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, mandatory and binding arbitration, limitations of liability, indemnification, waiver of jury trial, waiver of class action, and waiver of punitive damages under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCEPTING THESE TERMS THROUGH A SITE, WEB APP, OR MOBILE APP, OR BY ACCESSING AND USING THE SERVICES (INCLUDING THE SITES) OR PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY (SUBJECT TO SECTION 1(b)(ii) BELOW) TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. YOU REPRESENT THAT YOU ARE, SUBJECT TO SECTION 1(b)(ii) BELOW, OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND PRODUCTS AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT (AS DESCRIBED BELOW) AND CEASE ACCESSING OR USING THE SERVICES AND PRODUCTS.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICES AND OF THE PRODUCTS CONNECTED TO THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICES AND PRODUCTS.
AS DESCRIBED BELOW, SECTIONS 4 AND 5 DESCRIBE IMPORTANT LIMITATIONS OF THE SERVICES AND PRODUCTS, ESPECIALLY IN CONNECTION WITH MEDICAL OR PSYCHIATRIC CARE. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
(a) Overview and Relation to Other Agreements. These Terms govern your use of the Services and Products. Your purchase of any Product is governed by the limited warranty provided with that Product (“Limited Warranty”) and may further be governed by the Terms and Conditions of Sale. The software embedded in the Product (and any updates thereto) (“Product Software”) is licensed and governed by the End User License Agreement. Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. All additional guidelines, terms, or rules and the Privacy Policy (“Privacy Policy”) are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services and Products.
(b) Eligibility. (i) You may use the Services and Products only if you have the legal capacity to form a binding contract with Bryte (except subject to the provisions of clause (1)(b)(ii) below), you accept these Terms through a Site, Web App or Mobile App, or by accessing or using the Services or Products, and only if you are in compliance with these Terms and all applicable local, state/provincial, national and international laws, rules and regulations. Only individuals aged 18 and older are permitted to act as Owners of Bryte Accounts. (ii) If you are an Authorized User, you represent and warrant that you are over the age of 13 (or equivalent minimum age in the jurisdiction where you reside), and in the event you are between the age of 13 (or equivalent minimum age in the jurisdiction where you reside) and the age of majority in the jurisdiction where you reside, that you will only use the Services and Products under the supervision of a parent or legal guardian who agrees to be bound by these Terms on your behalf. Any use of or access to the Services and Products by individuals under the age of 13 (or the equivalent minimum age in the jurisdiction where you reside) is strictly prohibited and is a violation of these Terms. The Services and Products are not available to any users previously prohibited from using the Services and Products by Bryte.
(c) Customer Service. If you have any questions or concerns regarding the Products, the Services, or these Terms, please contact Bryte. You understand and agree that customer service and any customer care and support offered and provided by Bryte is not medical advice, a psychiatric provider, or dispatch service, or a lifesaving solution for people experiencing a medical or psychiatric emergency. PLEASE DO NOT CONTACT CUSTOMER SERVICE OR ANY CUSTOMER CARE AND SUPPORT OFFERED BY BRYTE WITH ANY MEDICAL OR PSYCHIATRIC EMERGENCY. IF YOU HAVE ANY SUCH EMERGENCY, YOU SHOULD IMMEDIATELY CONTACT 911 OR THE APPROPRIATE EMERGENCY RESPONSE SERVICE.
(d) Term and Termination. These Terms will remain in full force and effect as long as you continue to access or use the Services or Products, as long as you have an active subscription to the Services, or until terminated in accordance with the provisions of these Terms. At any time, Bryte may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if Bryte, in good faith, believes that you have used the Services or Products in violation of these Terms, including any incorporated guidelines, terms, or rules. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates and the new owner will have no right to use the Product or Services under your Account (as described below) and will need to register for a separate Account and pay for a subscription to the Services with Bryte and accept these Terms.
(e) Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.
(a) Your Account. To use certain Services and Products, you must register for a user account (“Account”) and provide certain information about yourself, as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services and Products will not violate any US or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your Account and to maintain your password securely to prevent others from gaining access. You agree to immediately notify Bryte of any unauthorized use or suspected unauthorized use of your Account, or any other breach of security. Bryte is not liable for any loss or damage arising from your failure to comply with the above requirements.
(a) Access and Use. Subject to these Terms and payment of applicable subscription fees, Bryte grants you a non-transferable, non-exclusive right (without the right to sub-license) to access and use the Services by (i) using the Web Apps in connection with, and solely for the purpose of, controlling and monitoring the Products you own or are authorized to control and monitor or otherwise accessing a service explicitly provided by Bryte for your use (the “Permitted Purpose”), (ii) installing and using the Mobile Apps solely on your own handheld mobile device (e.g., iPhone, iPad or Android smartphone) and solely for the Permitted Purpose, and (iii) accessing the Sites solely for the Permitted Purpose.
(b) Automatic Software Updates. Bryte may, from time to time, develop patches, bug fixes, updates, upgrades, and other modifications to improve the performance of the Services and/or the Product Software (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services and the Products. If you do not terminate a previously created Account or Services subscription, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and the Products and you agree to install promptly any Updates that Bryte provides. Your continued use of the Services and the Products is your agreement – (i) to these Terms (including the Sales Terms) with respect to the Services and Products, and (ii) to the EULA with respect to updated Product Software; and (iii) any change or updates that Bryte may make to these Terms or the End User License Agreement over time.
(c) Bryte-provided interface to Third-Party Products and Services. Over time, Bryte may provide the opportunity for you to interface the Products and Services to one or more third-party products and services, through and using the Services (“Third-Party Products and Services”). You decide whether you want to interface, and with which Third-Party Products and Services you want to interface. Your explicit consent and authorization is required for this interface and is revocable by you at any time. Once your consent is given for a particular Third-Party Product and Service, you agree that Bryte, in order to enable the interface that you have authorized, may exchange information and control data regarding you and your products, including your personal information.Once this information is shared with the particular Third-Party Product and Service, its use outside of Bryte will be governed by the third party’s privacy policy and not by Bryte’s privacy documentation. You acknowledge and agree that Bryte makes no representation or warranty about the quality or safety of any Third-Party Products or Services or the interface with Product and Services. Accordingly, Bryte is not responsible for your use of any Third-Party Product or Service, or any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to your use of any Third-Party Products or Services. You should contact the third party with any questions about their Third-Party Products and Services.
(d) Certain materials may be displayed or performed on the Services (including, but not limited to, text, graphics, articles, photographs, video, images, and illustrations (“Content”)). The Content also includes information that you and other users provide us with in the course of using the Services (collectively, “User Submissions”), which we may use to provide, maintain and improve the Services. Some Content may be visible to others (for example, the Services in the future may allow you to post feedback, comments, questions, or other information on the Sites). You are solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, or that you contribute in any manner to the Services; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you license to Bryte all patent, trademark, trade secret, copyright, or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, or otherwise exploit for any purposes whatsoever any Content or third-party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third-party right. Bryte reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all.
(e) Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services or Products; (ii) you agree not to modify, make derivative works of, disassemble, reverse-compile, or reverse-engineer any part of the Services or Products; (iii) you agree not to access the Services or Products in order to build a similar or competitive service or product; (iv) except as expressly stated herein, no part of the Services or Products may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms or any software intended to damage or alter a computer or communications network, computer, handheld mobile device, data, the Services, the Products, the Product Software or any other system, device or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than as intended through the interface that is provided by Bryte; and (viii) you agree not to remove, obscure, or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with, the Services or Products. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
(f) Open Source. Certain items of independent, third-party code may be included in the Web Apps and/or Mobile Apps that are subject to the GNU General Public License (“GPL”) or other open-source licenses (“Open-Source Software”). The Open-Source Software is licensed under the terms of the license that accompanies such Open-Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end-user license for such Open-Source Software. In particular, nothing in these Terms restricts your right to copy, modify and distribute such Open-Source Software that is subject to the terms of the GPL.
(g) Privacy. Please review the privacy terms in Section 4 below and the Privacy Policy. These documents describe practices regarding the information that you or Bryte may collect from users of the Products and Services, including any Content or User Submissions.
(h) Security. Bryte cares about the integrity and security of your personal information. We endeavor to implement appropriate security measures. However, Bryte cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
(i) Modification; End of Life. Bryte products (excluding accessories like pillows) feature cutting-edge “smart” features. The software that runs these features and the products themselves will be updated and supported by Bryte according to its general schedule for all consumers (and in some cases, all consumers that have a current subscription to the Services). Before ending support and software updates for a product where you have a current subscription (if applicable) (“Product Transition”), Bryte will provide you with at least 90 days’ notice. Bryte will use commercially reasonable efforts to continue the Services for the remainder of your subscription if you have paid for a monthly, lifetime or annual subscription. In some cases, Bryte may (but is not required to) offer discounts or trade-in opportunities as part of a Product Transition. Except as provided above, Bryte reserves the right, at any time, to modify, suspend or discontinue the Services or any part thereof with or without notice. You agree that Bryte will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services. Please note that this paragraph describes how we transition products and services for all users and does not describe the process for termination of your individual products or services (for example, if you terminate or breach or fail to pay on time).
(j) Access Outside Certain Countries. Although the Sites are accessible worldwide, the Products and Services provided or accessed through or on the Sites are not available to all persons or in all countries. If you choose to access the Sites from outside a country in which Bryte supports the Product and Services listed here (“Target Country”), you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Sites are not designed for use in a non-Target Country and that some, or all, of the features of the Sites may not work or be appropriate for use in such a country. To the extent permissible by law, Bryte accepts no responsibility or liability for any damage or loss caused by your access or use of the Sites or Bryte Products in a non-Target Country. You will be bound by these Terms wherever you access or use the Sites or the Services.
(a) Intended Use of Bryte Services. The Services are intended to be accessed and used for non-time-critical information and control of Bryte Products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Bryte’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and operators, among others. You acknowledge these limitations and agree that Bryte is not responsible for any damages allegedly caused by the failure or delay of the Services.
(b) No Life Safety or Critical Uses of the Products and Services. You acknowledge and agree that the Products and Services, whether standing alone or when interfaced with Third-Party Products or Services, are not certified for medical, psychiatric, or emergency use.
The Products (and related technology) and Services are not nor do they provide medical or psychiatric advice or care, nor are they a substitute for medical or psychiatric advice or care. You should consult a qualified physician for any medical issues or concerns. Product and Services and related technology recommendations and analysis are for informational purposes only and your reliance on them is at your own risk.
Our goal is to provide helpful and accurate information through the Product and Services and related technology, but we make no endorsement, representation, or warranty of any kind about any Product or Services or related technology content, information, or services. The accuracy of the data collected and presented through the Product, Product Software, Bryte Bed, Services, and any other Bryte products, or services is not intended to match that of medical devices or scientific measurement devices.
Use of the Bryte products and services should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your use of Bryte products and services.
Bryte products and services are not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using Bryte products and services. If you experience a medical emergency, consult with a medical professional. We are not responsible for any health problems that may result from use of the Bryte products and services.
(c) Reliability of Services. You acknowledge that the Services, including remote access and mobile notifications, are not error-free or 100% reliable and 100% available. Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through your wi-fi network, enabled wireless device (such as a phone or tablet) and broadband internet access, or optional Cellular Backup service, for which neither Bryte nor any wireless or data carrier is responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, system capacity, upgrades, repairs, or relocations. You understand that Service Interruptions may result in the Services being unreliable or unavailable for the duration of the Service Interruption. We cannot and do not guarantee that you will receive notifications within any given time, or at all.
(d) Service Interruptions; no refund or rebate. The Services may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Bryte does not offer any specific uptime guarantee for the Services.
(e) System Requirements. The Services will not be accessible without: (i) a working Wi-Fi network in your home that is positioned to communicate reliably with the Products; (ii) an Account; (iii) an enabled and supported wireless device, such as a phone or tablet (required for some features and functionalities of the Service); (iv) always-on broadband Internet access in your home with bandwidth sufficient to support the Products you use; and (v) other system elements that may be specified by Bryte. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. If you modify, substitute, move, or otherwise change any of the required system elements, it is your sole duty and responsibility to be sure they are compatible and properly configured to work with the Products and Services. In addition, you acknowledge that Bryte may activate Bluetooth on your smartphone or tablet, with or without prior notification, in order to facilitate proper operation of the Services, enable communication with Bryte Products connected to the same Bryte account and enable certain features.
(f) Health and Wellness Benefits. Unless explicitly promising a "guarantee," Bryte does not guarantee or promise any specific level of health benefit from the use of a Product or any feature of them. Actual energy sleep and wellness benefits vary with factors beyond Bryte’s control or knowledge.
(g) The Services provide you with information (“Product Information”) regarding the Products in your home and their connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Services is not a substitute for direct access of the information in the home.
(h) You warrant, represent, and agree that you will not contribute any Content or otherwise use the Services or Products in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable; (iv) impersonates any person or entity, including, without limitation, any employee or representative of Bryte; (v) contains a virus, Trojan Horse, worm, time bomb or other harmful computer code, file or program; (vi) jeopardizes the security of your Bryte Account or anyone else’s Account (such as allowing someone else to log into the Services as you); (vii) attempts, in any manner, to obtain or access the password, account, products, devices, systems, or other security information from any other user or third party; (viii) violates the security of any computer network or cracks any passwords or security encryption codes; (ix) runs Mail list, Listserv or any form of auto-responder or “spam” on the Services or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; (xi) decompiles, reverse-engineers or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; (xii) denigrates or disrupts any network capacity or functionality; or (xiii) engages in remote monitoring to provide professional medical care for any individual, including without limitation, in any health care and assisted living environment.
(i) Privacy and Data Protection Laws. Bryte Products and Services are primarily intended for purely personal and household use. Nonetheless, data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Products and Services. For more information, see the Privacy Policy. You agree that you (and not Bryte) are responsible for ensuring that you comply with any applicable laws when you use the Products and Services, including, but not limited to, (i) any laws relating to the recording or sharing of audio content that includes third parties or public spaces, or (ii) any laws requiring notice to third parties, or consent or explicit consent of third parties with respect to your use of audio recording.
(j) Installation, test and use. It is your responsibility (except for any initial set-up performed by Bryte) to install and use the Products and Services pursuant to the applicable manual and instructions. IF A PRODUCT IS NOT PROPERLY INSTALLED, OR IF A PRODUCT OR ANY OF ITS SENSORS ARE MODIFIED, BLOCKED, OR HINDERED OR OBSTRUCTED, YOU MAY EXPERIENCE PERFORMANCE ERRORS OR FAILURES. Except for any initial set-up performed by Bryte, it is your responsibility to test the Products once installed to be sure the Products (and any related sensors, components and peripherals) are functioning and communicating as intended and designed, and then regularly test and maintain the Products after installation.
(k) Smart device standards/Use only Bryte Certified Third-Party Products or Services. The Products may use various open or commonly available standards or means to communicate and work with smart or connected devices that are also similarly used by other systems or services not manufactured by Bryte, including Wi-Fi, Bluetooth, and IP devices. However, smart, connected or other devices and related services (“Third-Party Products and Services”) that are not designated by Bryte as compatible with the Products and Service may not work with the Products and Services, or may have limited features or functionality, even if designed, specified or marketed to operate using the same or similar standards or means of communication. You agree only to use with Bryte Products and Services those Third-Party Products and Services designated by Bryte as compatible with the Products and Services. Further, you agree that Bryte is not responsible for, and you hereby release and hold Bryte harmless from and against, all liability and damages arising from, related to, or caused by, any attempt by you to connect, or your connection and use of, Third-Party Products and Services that are not certified by Bryte as compatible with the Products and Services.
(a) General. Bryte Services rely on or inter-operate with third-party products and services. These third-party products and services are beyond Bryte’s control, but their operation may impact on, or be impacted by, the use and reliability of the Bryte Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on third-party product vendors and service providers, (ii) these third-party products and services may not operate in a reliable manner 100% of the time and they may impact on the way that the Bryte Services operate, and (iii) Bryte is not responsible for damages and losses due to the operation of these third-party products and services.
(b) Third-Party Service Providers Used By Bryte. You acknowledge that Bryte uses third-party service providers to enable some aspects of the Services – such as, for example, data storage, Cellular Back-up, synchronization and communication through Amazon Web Services and mobile device notifications through mobile operating system vendors and mobile operators.
(c) Equipment, ISP and Operator. You acknowledge that the availability of the Services is dependent on (i) your computer, mobile device, home wiring, home Wi-Fi network, Bluetooth connection and other related equipment (“Equipment”), (ii) your Internet service provider (“ISP”) and (iii) your mobile device operator (“Operator”). You acknowledge that you are responsible for all fees charged by your ISP and Operator in connection with your use of the Services. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use/service and other policies of your ISP and Operator.
(d) App Stores. You acknowledge and agree that the availability of the Mobile Apps is dependent on the third-party websites from which you download the Mobile Apps, e.g., the Google Play Store from Google or the App Store from Apple (each an “App Store”). You acknowledge that these Terms are between you and Bryte and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with such App Store terms and conditions, and your license to use the Mobile Apps is conditioned upon your compliance with such App Store terms and conditions. To the extent that such other terms and conditions from such App Store are less restrictive than or otherwise conflict with the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
(e) Third-Party Website Links and Referrals. The Sites may contain links to other websites operated by third parties (“Third-Party Sites”) and referrals to third-party vendors (“Referred Vendors”). Such Third-Party Sites and Referred Vendors are not under our control. Bryte provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Sites or Referred Vendors. Your use of these Third-Party Sites is at your own risk.
(f) Authorized Users. Bryte is not responsible for any Authorized User’s behavior, or for any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to their use of the Services.
(g) Release Regarding Third Parties. Bryte is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third-Party Products and Services, Third-Party Sites, Referred Vendors, Equipment, ISP and Operators. Bryte hereby disclaims, and you hereby discharge, waive and release Bryte and its licensors and suppliers from any past, present and future claims, liabilities and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOUR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
(a) Bryte Property. You acknowledge that all intellectual property rights, including, without limitation, copyrights, patents, trademarks and trade secrets, in the Product, Product Software, and Services (i.e., the Sites, Web Apps, and Mobile Apps) are owned by Bryte or its affiliates or licensors. Your possession, access to and use of the Product, Product Software and Services do not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Bryte, and its affiliates and licensors and suppliers, reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms or the Sales Terms.
You may only copy parts of the Services (including this Site) onto your own computer for your own personal use. You may not use the content of the Services in any other public or commercial way, nor may you copy or incorporate any of the content of the Services into any other work, including your own website, without the written consent of Bryte. You must have a license from us before you can post or redistribute any portion of the Services. Other than with respect to User Submissions, Bryte retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services, or any content therein. Your rights under this paragraph terminate when your Services subscription terminates.
(b) Feedback. You may choose to or Bryte may invite you to submit comments, suggestions, or ideas about the Products or Services, including how to improve the Products or Services (“Feedback”). By submitting any Feedback, you agree that your submissions are voluntary, gratuitous, unsolicited and without restriction, and will not place Bryte under any fiduciary or other obligation. Bryte may use, copy, modify, publish, redistribute, or otherwise exploit Feedback (including via sublicense) for any purpose and in any way without any compensation to you. You also agree that Bryte does not waive any rights to use similar or related ideas previously known to Bryte, developed by its employees, or obtained from other sources.
(c) User Submissions. You hereby grant us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sub-licensable and transferable right to access, display or otherwise use your User Submissions (including all related intellectual property rights) solely in connection with providing you with the Services and as directed by you. You also hereby do and shall grant to each user of the Services a non-exclusive license to access and use your User Submissions through the Services and as permitted through the functionality of the Services and under these Terms. Furthermore, you understand that we retain the right to reformat, modify, create derivative works of, excerpt and translate any User Submissions submitted by you. For clarity, the foregoing license grant to Bryte does not affect your ownership of or right to grant additional licenses to the material in your User Submissions, unless otherwise agreed in writing.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE, AND HOLD BRYTE AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “BRYTE PARTIES”) HARMLESS FROM AND AGAINST (I) ALL CLAIMS, ACTIONS, LAWSUITS, AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE BRYTE PARTIES ARISING FROM OR RELATING TO (A) YOUR USE AND EACH AUTHORIZED USER’S USE OF THE PRODUCTS OR SERVICES; (B) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF THESE TERMS; (C) ANY USER SUBMISSIONS OR FEEDBACK YOU PROVIDE; OR (D) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY (COLLECTIVELY, ”THIRD PARTY ACTIONS”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGMENTS (INCLUDING PAYMENT OF THE BRYTE PARTIES’ ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE BRYTE PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE BRYTE PARTIES, OR MADE BY ANY OF THE BRYTE PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION (“THIRD PARTY RELATED LOSSES”). YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE BRYTE PARTIES APPLIES EVEN IF SUCH THIRD-PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE BRYTE PARTIES. HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL, OR RECKLESS MISCONDUCT OF THE BRYTE PARTIES, OR GROSS NEGLIGENCE OF THE BRYTE PARTIES IN THOSE STATES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. “THIRD PARTY” IS DEFINED HEREIN TO INCLUDE, AMONG OTHERS, AN AUTHORIZED USER, AN UNAUTHORIZED USER, A SPOUSE, PARTNER, FAMILY MEMBER, GUEST, NEIGHBOR, TENANT, EMPLOYEE, OR INSURANCE COMPANY. Bryte reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Bryte, and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Bryte’s prior written consent. Bryte will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
(a) THE WARRANTIES FOR THE PRODUCT AND PRODUCT SOFTWARE ARE SET FORTH IN THE LIMITED WARRANTY AND THE END USER LICENSE AGREEMENT, RESPECTIVELY.
(b) THE SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”, AND BRYTE, AND OUR LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SATISFACTORY QUALITY, AND NON-INFRINGEMENT.
(c) EXCEPT AS PROVIDED IN THE LIMITED WARRANTY, BRYTE, AND OUR LICENSORS AND SUPPLIERS, MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BRYTE OR THOUGH THE SERVICES, SHALL CREATE ANY WARRANTY.
(d) BRYTE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH, OR IN CONNECTION WITH, THE PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY PRODUCTS AND SERVICES CONNECTED THROUGH THE BRYTE PLATFORM), OR ANY HYPERLINKED WEBSITE OR SERVICE, AND BRYTE WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
(e) BRYTE MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND BRYTE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY, OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. BRYTE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
(f) THE SERVICES MAY PROVIDE YOU INFORMATION REGARDING YOUR PRODUCTS (“PRODUCT INFORMATION”) OR OTHER PERIPHERALS CONNECTED TO YOUR PRODUCTS (“PRODUCT PERIPHERALS”). THE TYPE OF PRODUCT PERIPHERALS THAT MAY BE CONNECTED TO YOUR PRODUCT MAY CHANGE FROM TIME TO TIME. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, ALL PRODUCT INFORMATION IS PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”. BRYTE DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT PRODUCT INFORMATION WILL BE AVAILABLE, ACCURATE, OR RELIABLE.
WHEN YOU INSTALL, SETUP, OR USE THE PRODUCTS AND SERVICES YOU ARE GIVEN THE OPPORTUNITY TO CHANGE DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE NON-RECOMMENDED OR UNINTENDED OPERATION OR NON-OPERATION OF YOUR PRODUCTS AND SERVICES AND ANY CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR ANY DAMAGES AND LOSSES CAUSED BY, OR RELATED TO, THE CHOICES YOU MAKE FOR THE PARTICULAR SETTINGS FOR THE PRODUCTS AND SERVICES, AND SETTING OR CHANGING DEFAULTS.
Nothing in these Terms and, in particular, within this “Limitation of Liability” clause, shall be interpreted or construed to limit or exclude liability that cannot be so limited or excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE WARRANTY AND OTHER DISCLAIMERS IN THESE TERMS, IN NO EVENT WILL (A) BRYTE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST DATA OR LOST PROFITS ARISING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF BRYTE KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) BRYTE’S TOTAL CUMULATIVE LIABILITY FOR ANY DIRECT DAMAGES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF LIFE, OR ANY OTHER DAMAGES NOT EXCLUDED OR PRECLUDED PURSUANT TO (A) ABOVE, ARISING FROM OR RELATED TO THE SERVICES OR THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT NEVER TO EXCEED TWO (2) TIMES THE FEES ACTUALLY PAID BY YOU TO BRYTE OR BRYTE’S AUTHORIZED RESELLER FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). BRYTE DISCLAIMS ALL LIABILITY OF ANY KIND OF BRYTE’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL BRYTE BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF, OR EXPOSURE TO, ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
YOU UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY IN THIS SECTION SHALL APPLY EVEN IF BRYTE IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED OR LIMITED WARRANTY, NEGLIGENCE OF ANY KIND OR DEGREE, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY. HOWEVER, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL, OR RECKLESS MISCONDUCT OF BRYTE OR GROSS NEGLIGENCE OF BRYTE IN THOSE STATES THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE.
The Services are provided on a subscription fee basis. You shall pay all applicable fees in connection with the Services selected by you in accordance with the Terms of Sale and the ordering web page or form (or equivalent).
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Arbitration. Bryte and you agree to arbitrate all disputes and claims that arise from or relate to these Terms or the Services or Products in any way, except for claims arising from bodily injury. THIS ARBITRATION IS MANDATORY AND NOT PERMISSIVE. This agreement to arbitrate is intended to be broadly interpreted, including, for example:
This arbitration agreement does not preclude either of us from bringing an individualized action in small claims court. It also does not preclude either of us from seeking an individualized preliminary injunction or temporary restraining order, pending arbitration, in any court that has jurisdiction. Nor does this arbitration agreement bar you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. In addition, you or Bryte may seek injunctive or other equitable relief to protect your or its trade secrets and intellectual property rights or to prevent loss or damage to its services in any court with competent jurisdiction.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE, LAW, YOU UNDERSTAND AND AGREE THAT WE ARE EACH (A) WAIVING THE RIGHT TO A TRIAL BY JURY; (B) WAIVING THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION; AND (C) WAIVING THE RIGHT TO CLAIM OR RECOVER PUNITIVE DAMAGES AGAINST THE OTHER. These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.
(b) Notice of Disputes. If either of us intends to seek arbitration of a dispute, that party must provide the other with notice in writing. The notice to Bryte should be sent to: Bryte Legal Department, Bryte, Inc. 221 Main Street, #570, Los Altos, CA 94022. Bryte will send notice to you at the email and/or mailing addresses associated with your account. Your notice to Bryte must (a) provide your name, mailing address, and email address; (b) describe the dispute; and (c) state the relief you are requesting. If we are unable to reach an agreement to resolve the dispute within 60 days after the notice is received, you or we may commence arbitration.
(c) Arbitration Procedures. The arbitration will be governed by the Consumer Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. If the AAA is unavailable, the parties shall agree to another arbitration provider or the court shall appoint a substitute. Unless you and we agree otherwise, any arbitration hearings will take place in the county (or parish) where you are receiving Bryte Services. If the value of your claim is USD $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing. If the value of your claim exceeds USD $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 shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of this arbitration provision or the arbitrability of disputes are for the court to decide. The arbitrator may consider, but is not bound by, rulings in other arbitrations between Bryte and Bryte users. The arbitrator can award the same individualized damages and relief that a court can award. Judgement on the award may be entered by any court having jurisdiction.
(d) Costs of Arbitration. The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at www.adr.org or by calling the AAA at 1-800-778-7879). Bryte will pay all AAA filing, administrative and arbitrator fees for any arbitration that Bryte commences. If you provided Bryte with 60 days’ notice of your intent to arbitrate before commencing arbitration and the value of your claim is USD $75,000 or less, Bryte will pay your share of any such AAA fees. If the value of your claim exceeds USD $75,000, the allocation of AAA fees will be governed by the AAA Rules (unless the law of your state requires Bryte to pay all such fees). If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA fees shall be governed by the AAA Rules. In such cases, the arbitrator may direct you to reimburse Bryte for amounts that Bryte paid on your behalf.
(e) No Class Arbitration. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND BRYTE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED GROUP LITIGATION OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or group proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
(f) 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section 13, you must notify Bryte in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). Your written notification must be mailed to Bryte at the following address: Attention Legal, Bryte, Inc. 221 Main Street, #570, Los Altos, CA 94022. Subject to Section 13(g) below, if you do not notify Bryte in accordance with this Section 13(f), you agree to be bound by the arbitration and group litigation waiver provisions of these Terms, including such provisions in any Terms revised after the date of your first acceptance.
Such notification must include: (a) your name, (b) your Bryte account email address, (c) your mailing address and (d) a statement that you do not wish to resolve disputes with Bryte through arbitration. This notification affects these Terms only; if you previously entered into other arbitration agreements with Bryte or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between you and Bryte.
(g) Future Changes to Arbitration Provision. If Bryte makes any changes to the Dispute Resolution and Arbitration Section of these Terms (other than a change to the address at which Bryte will receive notices of dispute, opt-out notices or rejections of future changes to the Dispute Resolution and Arbitration Section), you may reject any such change by sending us written notice within 30 days of the change to Attention Legal, Bryte, Inc. 221 Main Street, #570, Los Altos, CA 94022. It is not necessary to send us a rejection of a future change to the Dispute Resolution and Arbitration Section of these Terms if you had properly opted out of the arbitration and group litigation waiver provisions in this Section within the first 30 days after you first accepted these Terms. If you have not properly opted out of the arbitration and group litigation waiver provisions in this Section, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject.
(a) If you are a copyright owner or an agent thereof and believe that any Content infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C §512[c][3] for further details): (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; (iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number and, if available, an electronic mail; (v) A statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (vi) A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(b) Bryte’s designated Copyright Agent to receive notifications of claimed infringement is Copyright Agent – Attention Legal, Bryte, Inc. 221 Main Street, #570, Los Altos, CA 94022; hello@bryte.com. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support and other communications should be directed to Bryte customer service through www.bryte.com/support. You acknowledge that if you fail to comply with all the requirements of this Section, your DMCA notice may not be valid.
(c) Counter-Notice. If you believe that the Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent or pursuant to the law to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent: (i) Your physical or electronic signature; (ii) Identification of the Content that has been removed, or to which access has been disabled, and the location at which the Content appeared before it was removed or disabled; (iii) A statement that you have a good-faith belief that the Content was removed or disabled as a result of mistake or misidentification of the Content; and (iv) Your name, address, telephone number and email address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, USA and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
(d) If a counter-notice is received by the Copyright Agent, Bryte may send a copy of the counter-notice to the original complainant informing that person that they may replace the removed Content or cease disabling it in 10 working 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 working days or more after receipt of the counter-notice, at Bryte’s sole discretion.
(a) Changes to These Terms. Bryte reserves the right to make changes to these Terms. Bryte will post notice of changes to any one or more of the following: this page, a Site, Web Apps, or Mobile Apps. You should ensure that you have read and agree with the most recent Terms when you use the Services and Products. Continued use of the Services and Products following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms. IF YOU DO NOT AGREE WITH ANY OF THE CHANGES TO ANY OF THE TERMS, YOU SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT AND CEASE ACCESSING OR USING THE SERVICES AND PRODUCTS.
(b) Governing Law. These Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Products and Services shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. The courts in some states and countries may not apply California law to some types of dispute. If you reside in one of those states or countries, then where California law is excluded from applying, your state’s or country’s laws will apply. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS IN OR FOR SANTA CLARA COUNTY, CALIFORNIA FOR THE PURPOSE OF LITIGATING ALL SUCH CLAIMS OR DISPUTES, UNLESS SUCH CLAIM OR DISPUTE IS REQUIRED TO BE ARBITRATED AS SET FORTH IN AN ABOVE SECTION.
(c) Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Bryte may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
(d) Entire Agreement/Severability. These Terms constitute the entire agreement between you and Bryte regarding the use of the Services and purchase of the Products. Any failure by Bryte to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
(e) Survivability. The obligations in Sections 3(d) and (e), 4, 6, 7, 8, 9, 10, 12 and 14 will survive any expiration or termination of these Terms.
(f) Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Bryte’s prior written consent. These Terms may be assigned by Bryte without restriction. These Terms are binding upon any permitted assignee.
(g) Notifications. Bryte may provide notifications to you as required by law, or for marketing or other purposes, via (at its option) email to the primary email associated with your Account, mobile notifications, hard copy or posting of such notice on www.bryte.com. Bryte is not responsible for any automatic filtering that you or your network provider may apply to email notifications. Bryte recommends adding @bryte.com email addresses to your email address book to help ensure that you receive email notifications from Bryte.
(h) Disclosures. Bryte’s address is Bryte, Inc. 221 Main Street, #570, Los Altos, CA 94022. If you are a resident of California, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them, in writing, at 400 R Street, Sacramento, CA 95814, USA, or by telephone on (800) 952-5210.
(i) Copyright/Trademark Information. Copyright © 2016-, Bryte, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are the property of Bryte or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Bryte or such respective holders. Bryte reserves the right to alter product and services offerings, specifications and pricing at any time, without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.
End User License Agreement
By using the software (“Product Software”) that is embedded on the Bryte product (“Product”), you agree to the terms of this End User License Agreement (“EULA”) between you and Bryte, Inc. (“Bryte” or “we”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE PRODUCT SOFTWARE AND YOU MAY CHOOSE TO PROMPTLY RETURN THE PRODUCT FOR A REFUND OF THE PRODUCT PURCHASE PRICE BY CONTACTING BRYTE AT THE ADDRESS BELOW. Your use of (a) the website located at bryte.com and bryte.com sub-domains (each, a “Site”), (b) services through the Site (and any updates thereto) (“Site Services”), if any, and (c) certain software that may be downloaded to your mobile device (and any updates thereto) (“Mobile Software”) is governed by the Terms of Service. Your purchase of the Product (excluding the Product Software and Services generally) is governed by the Bryte limited warranty, the terms of which are provided with the Product. This EULA does not govern your use of the Site, Site Services, or Mobile Software, or your purchase of the Product (excluding the Product Software).
This EULA governs your access and use of the Product Software. This EULA gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this EULA will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.
YOUR USE OF SOME FEATURES AND FUNCTIONALITY OF THE PRODUCT SOFTWARE REQUIRES A SUBSCRIPTION AS DETAILED IN THE TERMS OF SERVICE. PLEASE REVIEW THE TERMS OF SERVICE FOR IMPORTANT LIMITATIONS ON THE PRODUCT SOFTWARE IF YOU TERMINATE OR FAIL TO KEEP YOUR SUBSCRIPTION TO THE SERVICES CURRENT. A LINK TO THE RELEVANT TERMS ARE HERE. THESE TERMS ARE INCORPORATED INTO THIS EULA.
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE PRODUCT SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCT SOFTWARE AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT SOFTWARE.
As described below, you are consenting to automatic software update of the Product Software. If you do not agree, you should not use the Product Software.
Subject to the terms of this EULA, Bryte grants to you a limited and nonexclusive license (without the right to sublicense) to execute one (1) copy of the Product Software, in executable object code form only, solely on the Product that you own or control and solely for use in conjunction with the Product for your personal, non-commercial purposes. As noted above, some features and functionality of the Software will not be accessible or functional if you have not paid the subscription fee for Services.
You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product Software or make the Product Software available to any third party, (b) copy or use the Product Software for any purpose other than as permitted in Section 1, (c) use any portion of the Product Software on any device or computer other than the Product that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Bryte and provide Bryte an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Product Software to any third party without prior written approval of Bryte for each such release.
Bryte may from time to time develop patches, bug fixes, updates, upgrades, and other modifications to improve the performance of the Product Software and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Product. If you do not cease using the Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and the Product Software and you agree to promptly install any Updates Bryte provides. Your continued use of the Product is your agreement to this EULA. Your right and ability to receive some updates will terminate if you do not have a current subscription to the Services.
The Product Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Bryte and its licensors. Bryte and its licensors reserve all rights in and to the Product Software not expressly granted to you in this EULA. The Product Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to Bryte with respect to the Product Software shall be Bryte property. Bryte may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Bryte does not waive any rights to use similar or related ideas previously known to Bryte, developed by its employees, or obtained from other sources.
Certain items of software included with the Product Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Bryte makes such Open Source Software, and Bryte’ modifications to that Open Source Software, available by written request to Bryte at the email or mailing address listed below.
This EULA and the license granted hereunder are effective on the date you first use the Product Software or Product and shall continue for as long as you own the Product and, where required, have a current subscription to the Services, unless this EULA is terminated under this section. Bryte may terminate this EULA at any time if you fail to comply with any of these term(s). You may terminate this EULA effective immediately upon written notice to Bryte. Upon termination of this EULA, the license granted will terminate and you must stop all use of the Product Software, but the terms of Sections 2 through 18 (inclusive) will remain in effect, after any such termination.
End of Life: Bryte products feature cutting-edge “smart” features. The software that runs these features and the products themselves will be updated and supported by Bryte according to its general schedule for all consumers. In some cases, you must have a current subscription to the Services to receive updates. Before ending support and software updates for a product (“Product Transition”), Bryte will provide you with at least 90 days’ notice. Bryte will use commercially reasonable efforts to continue the Services for the remainder of your subscription if you have paid for a monthly or annual subscription. If you have purchased a Bryte Unlimited Subscription, or BUS, and we terminate the Services less than 5 years after you purchased the BUS, we will offer a credit toward other products or services on a prorated, straight-line 5 year basis. For example, if we terminate the Services 8 years after you purchased the BUS, we will give you a credit for 20% of the BUS purchase price to be shared by the two users on the account. Bryte will use commercially reasonable efforts to continue the Services for the remainder of your subscription if you have paid for a monthly or annual subscription. If you have purchased a Bryte Unlimited Subscription, or BUS, and we terminate the Services less than 5 years after you purchased the BUS, we will offer a credit toward other products or services on a prorated, straight-line 5 year basis. For example, if we terminate the Services 8 years after you purchased the BUS, we will give you a credit for 20% of the BUS purchase price to be shared by the two users on the account. Product Transitions typically won’t occur sooner than 3 years after Bryte makes a product generally available for purchase by consumers (apart from any refurbished, resale, or clearance sales). Please understand that some features, and in some cases, the product itself, will not function if you do not update your product or after Product Transition or if you do not have a current subscription to the Services. In some cases, Bryte may (but is not required to) offer discounts or trade-in opportunities as part of a Product Transition. Please note that this paragraph describes how we transition products and services for all users and does not describe the process for termination of your individual services (for example, if you terminate or breach or fail to pay on time).
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRYTE PROVIDES THE PRODUCT SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. BRYTE DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. BRYTE MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
YOU USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE PRODUCT SOFTWARE, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND BRYTE DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HVAC SYSTEM, HOME, PRODUCT, OTHER PERIPHERALS CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION, PRODUCT SOFTWARE, OR PRODUCT.
The Product Software is not nor does it provide medical or psychiatric advice or care, nor is it a substitute for medical or psychiatric advice or care. You should consult a qualified physician for any medical issues or concerns. Product Software recommendations and analysis are for informational purposes only and your reliance on them is at your own risk.
Our goal is to provide helpful and accurate information through the Product Software, but we make no endorsement, representation, or warranty of any kind about any Product Software content, information, or services. The accuracy of the data collected and presented through the Product Software, Bryte Bed, Bryte App, Website and any other Bryte products, or services is not intended to match that of medical devices or scientific measurement devices.
We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through Bryte’s products and services.
Use of the Bryte products and services should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your use of Bryte products and services, including those located on our [insert] page.
Bryte products and services are not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using Bryte products and services. If you experience a medical emergency, consult with a medical professional. We are not responsible for any health problems that may result from use of the Bryte products and services.
Nothing in this EULA and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) BRYTE BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR PRODUCT SOFTWARE, EVEN IF BRYTE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) BRYTE’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND PRODUCT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO BRYTE OR BRYTE’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. BRYTE DISCLAIMS ALL LIABILITY OF ANY KIND OF BRYTE’ LICENSORS AND SUPPLIERS.
Unless explicitly promising a “guarantee,” Bryte does not guarantee or promise any specific level of health benefit from the use of the Products or Product Software or any feature of them. Actual sleep and wellness benefits vary with factors beyond Bryte’ control or knowledge.
The Product Software provides you information (“Product Information”) regarding the Products in your home and their connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Product Software is not a substitute for direct access of the information in the home.
“Confidential Information” shall mean the Product Software and all other information disclosed to you that Bryte characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity and any trade secrets shall be held in confidence so long as they qualify as trade secrets under applicable law. You shall not disclose, disseminate or otherwise publish, or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Bryte. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Bryte in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with Bryte in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Bryte prior to such disclosure to allow Bryte an opportunity to contest the disclosure, (ii) assert the confidential nature of the Confidential Information, and (iii) cooperate fully with Bryte in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
The Product Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Product Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
The Product Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Product Software and related technology, as may be required. You will indemnify and hold Bryte harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.
The courts in some countries will not apply California law to some types of disputes. If you reside in one of those countries, then where California law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Santa Clara County, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that Bryte may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.
Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.
Any notice to you may be provided by email to the address that you registered with Bryte.
If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
All waivers by Bryte will be effective only if in writing. Any waiver or failure by Bryte to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
The Product Software is deemed irrevocably accepted upon your use of the Product Software or Product. Bryte will have no responsibility to provide maintenance or support services with respect to the Product Software. The parties are independent contractors.
You acknowledge that the Product Software contains valuable trade secrets and proprietary information of Bryte, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to Bryte for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.
Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing hand-signed by the parties.
Questions or Additional Information. If you have questions regarding this EULA, please contact Bryte at hello@bryte.com
The full warranty details can be found here: www.bryte.com/warranty.
