Last Modified: May 14, 2020
Please read these Terms carefully to ensure that you understand each provision. These Terms contain a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
Brown Bunny provides a platform facilitating interactions between Studios, Instructors, and Clients. Brown Bunny retains full discretion to prioritize, categorize, highlight, and otherwise modify the method of Client discovery of Instructors and/or Studios, including through search results and tagging, in order to improve service quality and for other purposes.
You must register an account on the Service (your “User Account”) to gain access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of User Accounts for different types of Users. If you open a User Account on behalf of a company, organization, or other entity (for example, if you open a User Account on behalf of a Studio), then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf. By connecting to Brown Bunny with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower-case letters, numbers and symbols) with your User Account. You must notify Brown Bunny immediately of any breach of security or unauthorized use of your User Account. Brown Bunny will not be liable for any losses caused by any unauthorized use of your User Account.
You may control your User Account and how you interact with the Service by changing the settings in your settings page. By providing Brown Bunny your email address, you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
Neither Studios nor Instructors are employees, partners, representatives, agents, joint venturers, independent contractors or franchisees of Brown Bunny. Brown Bunny does not provide fitness classes and does not employ individuals to provide fitness classes. Brown Bunny operates as an online marketplace that connects Clients with Instructors and/or Studios. Regardless of whether a particular Instructor or Studio appears as “vetted,” “verified” or something similar, the Service is intended as an information resource and not an advisory service; it is your responsibility to determine the quality and credibility of information obtained, as well as the reasonableness of relying on such information for a particular use. You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Brown Bunny shall have no liability for your interactions with other Users, or for any User’s action or inaction.
You acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into an agreement with any other User (each such agreement, an “Agreement”) and for verifying any information about such User, including User Content (as defined below) and Feedback (as defined below) associated with such User. Brown Bunny does not make any representations about, or guarantee the truth or accuracy of, any User Content or Feedback; and does not guarantee any User’s suitability for any purpose (regardless of whether a particular Instructor or Studio appears as “vetted,” “verified” or something similar). You are solely responsible for determining the suitability of any other User for the purposes of an Agreement (by, for example, conducting interviews or background checks, or taking similar actions).
If Users decide to enter into an Agreement with each other, such Agreement is directly between such Users, and Brown Bunny is not a party to that Agreement. You acknowledge, agree, and understand that Brown Bunny is not a party to the relationship or any dealings between the Client and the Studio or Instructor, as applicable. Without limiting the generality of the foregoing, Users are solely responsible for (i) negotiating, agreeing to, and executing any terms and conditions of Agreements; and (ii) performing their respective obligations, including payment obligations, under Agreements.
Users hereby acknowledge that Brown Bunny does not supervise, scope, direct, control or monitor the fitness classes or anything else a Studio or Instructor may offer or provide and expressly disclaims (to the extent permitted by law) any responsibility and liability for the fitness classes any anything else a Studio or Instructor may offer or provide in any manner, including but not limited to, any warranty or condition of good and workmanlike services, warranty or condition of quality or fitness for a particular purpose, or compliance with any law, statute, ordinance, regulation, or code.
Brown Bunny makes no representations about and does not guarantee, and you agree not to hold Brown Bunny responsible for: the quality, safety, or legality of any services performed by a Studio or Instructor, any User’s conduct during a fitness class or other User-to-User interaction, the Studio’s or Instructor’s failure to provide the fitness class or any other promised service, or the ability of Studios or Instructors to deliver services; the qualifications, background, or identities of Users; the ability of Clients to pay Studios and/or Instructors; User Content, Feedback, and/or other statements or posts made by Users; or the ability or willingness of any User to actually complete a transaction.
You also acknowledge, agree, and understand that Studios and Instructors are solely responsible for determining, and have the sole right to determine, which engagements to accept; the time, place, manner, and means of providing any services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set.
Nothing in these Terms shall in any way be construed to constitute Studio or Instructor as an agent, employee or representative of the Client or of Brown Bunny, or to create a joint venture between any of the parties. You further acknowledge, agree, and understand that you are not an employee of Brown Bunny, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance).
Each of Studio and Instructor acknowledges, agrees and understands that it is solely responsible (i) for all tax liability associated with payments received from Clients through the Service, and that Brown Bunny will not withhold any taxes from payments to Studios and/or Instructors; (ii) for obtaining any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that it is not covered by or eligible for any insurance from Brown Bunny; (iii) for determining whether it is required by applicable law to issue any particular invoices and for issuing any invoices so required; (iv) for determining whether it is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges and for remitting any such taxes or charges to the appropriate authorities, as appropriate; and (v) if outside of the United States, for determining if Brown Bunny is required by applicable law to withhold any amount from the Studio or Instructor and for notifying Brown Bunny of any such requirement and indemnifying Brown Bunny for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Brown Bunny, each of Studio and Instructor agrees to promptly and diligently cooperate with Brown Bunny and provide copies of its tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to, records showing it is engaging in an independent business as represented to Brown Bunny.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
The Service is controlled and operated from facilities in the United States. Brown Bunny makes no representations that the Service is available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
We may make available software to access the Service via a mobile device (the “Bright App”). To use the Bright App you must have a mobile device that is compatible with the Bright App. Brown Bunny does not warrant that the Bright App will be compatible with your mobile device. You may use mobile data in connection with the Bright App and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Brown Bunny hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Bright App for one User Account on one mobile device owned or leased solely by you, for your internal, noncommercial use only. You may not: (i) modify, disassemble, decompile or reverse engineer the Bright App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Bright App to any third party or use the Bright App to provide time sharing or similar services for any third party; (iii) make any copies of the Bright App; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Bright App, features that prevent or restrict use or copying of any content accessible through the Bright App, or features that enforce limitations on the use of the Bright App; or (v) delete the copyright and other proprietary rights notices on the Bright App. You acknowledge that Brown Bunny may from time to time issue upgraded versions of the Bright App, and may automatically electronically upgrade the version of the Bright App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Bright App is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Bright App or any copy thereof, and Brown Bunny or its third-party partners or suppliers retain all right, title, and interest in the Bright App (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. Brown Bunny reserves all rights not expressly granted under these Terms. If the Bright App is being acquired on behalf of the United States Government, then the following provision applies. The Bright App will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Bright App originates in the United States, and is subject to United States export laws and regulations. The Bright App may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Bright App may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Bright App and the Service.
The following applies to any Bright App you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms are solely between you and Brown Bunny, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Brown Bunny as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Brown Bunny as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Brown Bunny, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Brown Bunny acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as they relate to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
The following applies to any Bright App you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that these Terms are between you and Brown Bunny only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Brown Bunny, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms; and (vi) you acknowledge and agree that Google is a third-party beneficiary to these Terms as they relate to Brown Bunny’s Google-Sourced Software.
Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available content such as information about themselves; videos, images, music; reviews, comments, and questions about, among other things, the Service and other Users; and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service, including, without limitation, all content comprising the Studio Profiles, Instructor Profiles and Client Profiles (each, as defined below, and collectively referred to as “User Profile”), is referred to as “User Content”).
Each Studio will create a public profile that will contain information about the Studio (including, for example, its location(s), information about its offerings and specializations, and information about its trainers), images, media clips, and other information Studio chooses to add (a “Studio Profile”). Each Studio Profile must be approved by Brown Bunny prior to the publicization of such Studio Profile on the Service. It is Studio’s responsibility to ensure that all content comprising the Studio Profile is accurate, complete and up to date, and Studio agrees not to enter into an Agreement with any Client unless Studio’s Studio Profile is accurate, complete and up to date. Brown Bunny has the right (but not the obligation), in its sole discretion, to verify information provided by, or about, Studio, including confirming its credentials. If requested, Studio agrees to diligently assist Brown Bunny in this process.
Each Instructor will create a public, individual profile that will contain Instructor’s name, biographical information (including, for example, employment history and certification), a representative picture, media clips, email address, location (city and state) and other information Instructor chooses to add (an “Instructor Profile”). Each Instructor Profile must be approved by Brown Bunny prior to the publicization of such Instructor Profile on the Service. It is Instructor’s responsibility to ensure that all content comprising the Instructor Profile is accurate, complete and up to date, and Instructor agrees not to enter into an Agreement with any Client unless Instructor’s Instructor Profile is accurate, complete and up to date. Brown Bunny has the right (but not the obligation), in its sole discretion, to verify information provided by, or about, Instructor, including verifying such Instructor’s identity and confirming Instructor’s experience and credentials. If requested, Instructor agrees to diligently assist Brown Bunny in this process.
Each Client will create an individual profile that will be available to other Users only as permitted by the settings in Client’s settings page (a “Client Profile”). Your Client Profile will include your name, email address, location (city and state), and other information Client chooses to add or that is added in connection with Client’s use of the Service. Notwithstanding anything to the contrary, any Instructor and/or Studio contacted by Client will see Client’s name and email address. It is Client’s responsibility to ensure that all content comprising the Client Profile is accurate, complete and up to date, and Client agrees not to enter into an Agreement with any Instructor or Studio unless Client’s Client Profile is accurate, complete and up to date. Brown Bunny has the right (but not the obligation), in its sole discretion, to verify information provided by, or about, Client, including verifying such Client’s identity. If requested, Client agrees to diligently assist Brown Bunny in this process.
We claim no ownership rights over User Content created by you. The User Content you create remains yours. However, you understand that certain portions of the Service may allow other Users to view, edit, share, and/or otherwise interact with your User Content. By providing or sharing User Content through the Service, you agree to allow others to view, edit, share, and/or interact with your User Content in accordance with your settings and these Terms. Brown Bunny has the right (but not the obligation), in its sole discretion, to remove any User Content that is shared via the Service, including without limitation, any User Profile.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Brown Bunny a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service (including, without limitation, the Feedback) and Brown Bunny’s (and its successors’ and affiliates’) business, including without limitation, for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under these Terms.
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
Brown Bunny takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Brown Bunny shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current.
For the purposes of these Terms, “Feedback” means composite or compiled feedback about Users, generated from User Content, including but not limited to, User comments, User ratings, indicators of User satisfaction, and other feedback left by other Users. You acknowledge, agree and understand that Feedback does not constitute and will not be construed as an introduction to, or endorsement or recommendation of, any User by Brown Bunny, and that Brown Bunny provides Feedback solely for the convenience of Users. You further acknowledge, agree and understand that Brown Bunny will make Feedback available to other Users on or through the Service, and may make Feedback available on your User Profile. Brown Bunny provides Feedback as a means through which Users can share their opinions of other Users publicly, and Brown Bunny does not monitor, contribute to or censor these opinions. You agree not to use the Feedback to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
Certain aspects of the Service may be provided for a fee or other charge. For any transaction you make through the Service, you agree that 4% of the total transaction amount will be paid to Brown Bunny, and you acknowledge that we may update this percentage and/or our compensation scheme from time to time. Brown Bunny may add new services for additional fees and charges, and add or amend fees and charges for existing services, at any time, in its sole discretion. Any change to our pricing and payment terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms. We currently use Stripe, Inc. (“Stripe”) as our third-party service provider for payment services. By using the Service, you agree to be bound by Stripe’s Services Agreement, available at https://stripe.com/us/legal (or any successor site). You further agree that, for any transaction you make through the Service, Stripe will charge a payment processing fee of 2.9% + US$0.30, and you acknowledge that such payment processing fee is subject to change from time to time, without prior notice to you.
You may cancel your User Account at any time; however, there are no refunds for cancellation. In the event that Brown Bunny suspends or terminates your User Account or these Terms, you understand and agree that you shall receive no refund or exchange for any Brown Bunny Property, any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your User Account, or for anything else. Brown Bunny may, in its sole discretion, issue refunds on behalf of Studios and/or Instructors, as applicable, for any transaction that occurred through the Service. Studios and Instructors hereby authorize Brown Bunny to issue refunds and agree to comply with any refunds issued by Brown Bunny.
In the event a payment from a Client to an Instructor or Studio is charged-back, reversed or authorized by Brown Bunny to be refunded, such Instructor or Studio, as applicable, shall return all funds remitted to it in connection with the transaction giving rise to such charge-back, reversal or refund. If such Instructor or Studio fails to do so, Brown Bunny reserves the right to seek funds in an amount equal to such chargeback, reversal or refund amount, plus interest, from such Instructor or Studio and may withhold such amounts from any future transaction to which such Instructor or Studio is a party made through the Service.
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay all applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, 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 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
You acknowledge and agree that a substantial portion of the compensation Brown Bunny receives for making the Service available is collected as described in Section 5.1 above and that, in exchange, a substantial value to you is the relationships formed with other Users when you identify, or are identified by, another User through the Service (the “User Discovery”). Therefore, for 24 months from a User Discovery (the “Non-Circumvention Period”), you agree to use the Service as your exclusive method to request, make, and receive all payments for engagements or transactions with any and all Users arising, directly or indirectly, out of such User Discovery and not to circumvent the payment methods offered on and through the Service. For the avoidance of doubt, if you did not identify, and were not identified by, another User through the Service, such as if you and another User worked together before meeting on the Service, then the Non-Circumvention Period does not apply to that relationship. If you use the Service as an employee, agent, or representative of a business, then the Non-Circumvention Period applies to you and other employees, agents, and representatives of that business or its successor when acting in that capacity with respect to the other User.
By way of illustration and not in limitation of the foregoing, you agree not to:
You acknowledge and agree that a violation of this section is a material breach of these Terms. If you violate the above terms set forth in this section, in addition to any other right and remedy available to Brown Bunny at law or in equity, Brown Bunny may suspend or terminate your User Account and/or charge you US$500.00 for each such violation (each, a “Penalty Payment”). Additionally, if you refuse to accept any new version of these Terms or elect not to comply with these Terms or any provision hereof, and therefore choose to cease using the Service, you must pay Brown Bunny a Penalty Payment for each engagement or transaction initiated during the Non-Circumvention Period arising, directly or indirectly, out a User Discovery to the extent such engagement or transaction would have otherwise been processed through the Service or is otherwise eligible for processing through the Service. In the case of Studios and Instructors, Brown Bunny may withhold any amounts due to Studio or Instructor, as applicable, in connection with any future transaction or transactions made through the Service to which such Studio or Instructor is a party, and each of Studio and Instructor hereby authorizes Brown Bunny to instruct its payment processor to remit all such amounts to Brown Bunny.
You agree to notify Brown Bunny immediately if a User suggests to you making or receiving payments other than through the Service in violation of this section or if you receive unsolicited contact outside of the Service. If you are aware of a breach or potential breach of this section, please contact us at email@example.com.
Each of Studio and Instructor represents and warrants that:
it possesses experience and knowledge in the subject areas of the services to be provided to any Client with whom it enters into an Agreement, sufficient to qualify it as an expert in such areas;
any materials provided by it in under these Terms will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any third party; and
it is party to no agreements, relationships, or commitments to any other person or entity that conflict with the provisions of these Terms; it will not disclose any information to Client which would conflict with any laws or confidentiality obligations by which it is bound; and it will not enter into any such conflicting agreement, relationship or commitment during the term of these Terms.
Information provided through the Service (for example, information related to physical exercise or the quality of a particular Studio or Instructor) is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
You may sign up to receive certain Brown Bunny notifications or information via text messaging. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Brown Bunny servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Brown Bunny grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from www.getbright.app (or any successor URL) for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email or otherwise violating any anti-spam, consumer protection or privacy law, rule or regulation by using another User’s email address; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personal information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on the use of the Service or the content therein.
Accessing any audiovisual content that may be available on the Service for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited unless explicitly permitted by the functionality of the Service. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Service to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
Brown Bunny cares about the integrity and security of your personal information. However, we 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.
Since we respect artist and content owner rights, it is Brown Bunny’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Brown Bunny’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following DMCA Agent:
You hereby agree to release Brown Bunny from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including other Users) in connection with the Service. In addition, you waive any applicable law or statute, which says, in substance: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE RELEASED PARTY.”
You agree to defend, indemnify and hold harmless Brown Bunny and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation, your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation, any right of privacy or Intellectual Property Rights; (iv) your interactions with other Users; (v) your violation of any applicable law, rule or regulation; (vi) User Content or any other content that is submitted via your User Account, including without limitation, misleading, false, or inaccurate information; (vii) your willful misconduct; or (viii) any other party’s access and/or use of the Service with your unique username, password or other appropriate security code.
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Brown Bunny or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, Brown Bunny, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Service.
Further, Brown Bunny does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and Brown Bunny will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. These Terms give you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under these Terms will not apply to the extent prohibited by applicable law.
To the maximum extent permitted by applicable law, in no event shall Brown Bunny, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service. Under no circumstances will Brown Bunny be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your account or the information contained therein.
To the maximum extent permitted by applicable law, Brown Bunny assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through the Service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (vii) User Content, Feedback, or the defamatory, offensive, or illegal conduct of any third party. In no event shall Brown Bunny, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to Brown Bunny hereunder or US$100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Brown Bunny has been advised of the possibility of such damage.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. These Terms give you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law.
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other Intellectual Property Rights or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM Brown Bunny. For any dispute with Brown Bunny, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Brown Bunny has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County, California, unless you and Brown Bunny agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorneys’ fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing Brown Bunny from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by entering into these Terms, you and Brown Bunny are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Brown Bunny without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Brown Bunny may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Brown Bunny in its sole discretion. Brown Bunny reserves the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in these Terms. Brown Bunny is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Brown Bunny may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change the Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Terms. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of the terms of these Terms or any future Terms of Service, do not use or access (or continue to access) the Service.
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Brown Bunny’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.