Terms & Conditions of Sale
Last Updated: 27 August 2018
Welcome to the online store (the "Store") provided by Brilliant Home Technology, Inc. ("Brilliant"). Your purchase of products ("Products") and/or subscription services ("Subscription Services") from the Store constitutes your agreement to be bound by these terms and conditions of sale (“Terms & Conditions”) and any additional terms and conditions we provide, including but not limited to our Terms of Service or our EULA or our terms of a Limited Warranty, which one or more may be included in-box with a Brilliant Product.
THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR PRODUCTS AND/OR SUBSCRIPTION SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE SALE TERMS. 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 from the Store. Every time you order Products from Brilliant, the Terms & Conditions in force at that time will apply between you and Brilliant. If you use our Subscription Services or continue to use our Products, we will notify you in the event we make changes to these Terms & Conditions that affect your Subscription Services or the Product. If you have any questions regarding these Terms & Conditions, you can contact Brilliant at email@example.com.
The Store is for retail sales to private consumers only. Please contact firstname.lastname@example.org 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 the Store may be accessible worldwide, the Products and Subscription Services offered on the Store are not designed and tested for use in all countries. If you choose to access the Store and/or use the Products and Subscription Services outside the United States and Canada (each, a "Target Country"), as applicable, 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 Store and the Products and Subscription Services are not designed for use in a non-Target Country and some or all of the features of the Store, Products and Subscription Services may not work or be appropriate for use in such a country. To the extent permissible by law, Brilliant accepts no responsibility or liability for any damage or loss caused by your access or use of the Store, Products and Subscription Services in a non-Target Country and you hereby also agree to indemnify and hold Brilliant harmless should you breach any Terms & Conditions.
You acknowledge that you have verified the compatibility of the Products you are purchasing with other equipment in your home (e.g., ensuring that your electrical system and other products in your home are compatible with the Product). You are solely responsible for determining the compatibility of the Products with other equipment in your home, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Products and does not otherwise constitute a basis for receiving a refund after the 30-day refund policy described below.
2. Reservations and Pre-Orders
Products available for reservation and pre-order are not offered for sale by Brilliant. Your placement of a reservation and pre-order does not create a contract for sale.
By placing a reservation and pre-order for a Product that is not yet available for sale, you make an offer to Brilliant to purchase the Product subject to these Terms & Conditions. Brilliant will obtain an authorization from your bank or credit card company for no charge. An authorization from your payment card company may stay open for several days or weeks before a charge is actually made.
You may cancel your offer to purchase Products at any time prior to shipment and you will not be charged.
Later, when the Product is offered for sale, Brilliant may accept your offer to purchase Products subject to these Terms & Conditions. At that time, Brilliant will capture payment on the payment card you provided and ship your Product. Brilliant may obtain an additional authorization from your payment card company to confirm necessary funds are available to purchase the Products requested.
Brilliant reserves the right to cancel or refuse any order for any reason at any time prior to shipment, including after an order has been submitted, whether or not the order has been confirmed. We may attempt to contact you if all or a portion of your order is cancelled, or if additional information is needed to complete and accept your order.
By providing a credit card or other payment method accepted by Brilliant, 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 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 cancelled. 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 Brilliant account, you can do so at any time by logging into your account and editing your payment information.
4. Availability and Pricing.
All Products offered on the Store 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 and/or Subscription Services without prior notice. Prices for the Products and Subscription Services are subject to change at any time, but changes will not affect any order for Products you have already placed. In the event we change the pricing for any Subscription Service you have purchased, we will give you advance notice of this change in accordance with Section 17 (Notifications). After receiving this notice, you will be deemed to have accepted the change in pricing, unless you cancel your subscription as set forth in Section 4(d) above.
5. Sales Tax
Depending on the order, Brilliant calculates and charges sales tax in accordance with applicable laws.
6. Resale and Title Transfer
Purchases made on the Store are intended for end user’s personal use only, and are not authorized for resale, but may be given as a gift. These Terms & Conditions shall apply to any gift recipient. Title for Products (excluding software) purchased from the Store passes to the purchaser at the time of delivery by Brilliant to the freight carrier, but Brilliant and/or the freight carrier will be responsible for any Product loss or damage that occurs when the Product is in transit to you. Any software installed on our Products is licensed to you, not sold. You may only use the software for its normal, intended use with our Products and in accordance with Section 7 (Software License). When we say “sell” and “purchase” in these Terms & Conditions, we mean “sell” and “purchase” only with respect to the non-software elements of the Product.
7. Software License
7.1 Subject to your compliance with these Terms & Conditions, Brilliant grants to you an end user license agreement (“EULA”).
8. Shipping and Delivery
Prices for the Products do not include shipping costs. Our delivery charges and methods are as described on the Store website from time to time. You are responsible for keeping us informed regarding the correct delivery address for the Products. 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 Store have been designed, marketed and sold only for use by residents of the United States and Canada, AS APPLICABLE. The Products available on the Store are not intended for use outside of the United States and Canada, 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 laws.
There may be laws in the jurisdiction that you install a particular Product applicable to where and how to install that Product. You should check that you are in compliance with all relevant laws in your jurisdiction. Brilliant is not responsible for any injury or damage caused by self-installation. Brilliant maintains a list of recommended installers of the Products on its website. These installers are not Brilliant employees and are not affiliated with Brilliant. Brilliant is not responsible for any conduct of or liability associated with these installers. You should do your own diligence of the installers to select one that best fits your needs.
10. Returns for Refund.
If, for any reason, you want to return the Product you purchased from the Store for a refund, you must notify us no later than 30 days following the date of purchase (the "Cancellation Period"). The Product is not eligible for a refund after the 30-day period. To initiate a return, you must inform us of your decision within the Cancellation Period by either 1) visiting http://brilliant.tech/return, and submitting a request for return, or 2) contacting Brilliant customer support at email@example.com with (i) RMA in the subject line, (ii) the order number in the body of the message and (iii) clearly state your desire to return the Product. Although it will not affect your right to a refund, please also include details on where and when you purchased the Product and your reason for returning the Product. For such returns, Brilliant customer service will provide you with a Return Materials Authorization ("RMA") that you must include with your return shipment to Brilliant so Brilliant can identify your shipment and with a return address. If you purchased the Product from somewhere other than the Store, please contact that reseller to obtain a refund.
To receive a refund, you must return your Product (and any promotional merchandise supplied with the Product) with the provided RMA within fourteen (14) days following the day on which you notify Brilliant customer support that you desire to return your Product. Returned Products must be in good physical condition (e.g., not physically broken or damaged). All accessories originally included with your purchase must be included with your return. Unless the Product is faulty or not as described, you will be responsible for all costs associated with returning the Product to us (including uninstallation). You assume all risk of loss or damage to the Products while in transit to Brilliant. After receipt of Product, we will refund the price you paid for the Product plus original delivery cost (up to the value of our free Ground delivery option), less the value of any promotional merchandise or discounts you received. If you purchase a Bundle (multiple Products sold together at a discount), we will not provide a refund if you return only part of the Bundle, and you must return all of the Products sold together in that Bundle in order to receive any refund. We may reduce the amount of your refund to reflect any reduction in the value of the Product, as determined in our sole discretion, caused by your handling them in a way which goes beyond what is necessary to establish their nature, characteristics and functioning (e.g., beyond what would normally be permitted in a shop).
All Products that are returned to us become our property. We are not responsible for any content or information stored in any Product you return to us, whether under warranty or not. Please make sure to save any content or information you wish to keep from your Product before returning your Product to us. If you return Products to Brilliant (a) without an RMA from Brilliant or (b) without all parts included in the original package, Brilliant retains the right to either refuse delivery of such return or accept delivery and charge you a restocking fee of 15% of the original price of the Product or the retail value of the missing accessories, whichever is higher. 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 Brilliant of the returned Product.
Please see the Section 12 (Limited Warranty and Disclaimers) for information on the warranty terms applicable to the Product.
11. Dispute Resolution and Arbitration
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. Brilliant and you agree to arbitrate all disputes and claims that arise from or relating to these Terms & Conditions or your use of the Products and/or Subscription Services in any way, except for claims arising from bodily injury. This agreement to arbitrate is intended to be broadly interpreted, including, for example:
- claims arising out of or relating to any aspect of the relationship between us that is created by or involves these Terms & Conditions and/or your use of the Products and/or Subscription Services, regardless of the legal theory;
- claims for mental or emotional distress or other emotional/mental injury arising from the relationship between us;
- claims that arose before you accepted these Terms & Conditions (such as claims related to disclosures or the marketing of the Products and/or Subscription Services or the process for seeking approval to use the Products and/or Subscription Services);
- claims that may arise after the termination of your use of the Products and/or Subscription Services or any agreement between us; and
- claims brought by or against our respective subsidiaries, parent companies, members, affiliates, as well as the respective officers, directors, employees, agents, predecessors, successors, and assigns of these entities, you, and Brilliant.
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 Brilliant 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 Brilliant should be sent to: Brilliant Legal Department, 241A S San Mateo Dr, San Mateo, CA 94401.
Brilliant will send notice to you at the e‑mail and/or mailing addresses associated with your account. Your notice to Brilliant 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 Brilliant 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 Brilliant and Brilliant 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). Brilliant will pay all AAA filing, administrative, and arbitrator fees for any arbitration that Brilliant commences. If you provided Brilliant with 60 days’ notice of your intent to arbitrate before commencing arbitration and the value of your claim is $75,000 or less, Brilliant 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 Brilliant 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 Brilliant for amounts that Brilliant 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 BRILLIANT 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.
(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 12, you must notify Brilliant 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 Brilliant at the following address: Brilliant Legal Department, 241A S San Mateo Dr, San Mateo, CA 94401. Subject to Section 12(g) below, if you do not notify Brilliant in accordance with this Section 12(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 Brilliant account, (c) your mailing address, and (d) a statement that you do not wish to resolve disputes with Brilliant through arbitration. This notification affects these Terms & Conditions only; if you previously entered into other arbitration agreements with Brilliant 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 Brilliant.
(g) Future changes to arbitration provision. If Brilliant makes any changes to the Dispute Resolutions and Arbitration section of these Terms & Conditions (other than a change to the address at which Brilliant 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 Brilliant Legal Department, 241A S San Mateo Dr, San Mateo, CA 94401. 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 12 within the first thirty (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 12, 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.
12. Limited Warranties and Disclaimers.
As far as permitted by applicable law, the Store, and all content available on the Store, 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 Store are provided on an "AS-IS" basis unless otherwise noted in the Limited Warranty included with a Product. With respect to Brilliant Products, you may choose whether to make a claim under these Terms & Conditions or the Limited Warranty or both, but you may not recover twice in respect of the same loss. To initiate a return under the Limited Warranty for your Brilliant Product, you should contact Brilliant.
You use any Products or Subscription Services at your own discretion and risk. You will be solely responsible for (and Brilliant disclaims) any and all loss, liability or damages resulting from your use of a Product and/or Subscription Service, including damage or loss to your home electrical system, plumbing, 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," Brilliant does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of a Product and/or Subscription Services or any feature of them. Actual energy savings and monetary benefits vary with factors beyond Brilliant's control or knowledge.
13. Limitation of Liability.
Nothing in these Terms & Conditions and in particular within this 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) BRILLIANT 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 SUBSCRIPTION SERVICES, EVEN IF BRILLIANT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) BRILLIANT’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND SUBSCRIPTION SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO BRILLIANT OR BRILLIANT’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR SIX (6) MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. BRILLIANT DISCLAIMS ALL LIABILITY OF ANY KIND OF BRILLIANT’S LICENSORS AND SUPPLIERS.
14. Data Protection.
15. Electronic Communications.
You are communicating with Brilliant electronically when you use the Store or send email to Brilliant. 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 in the Store, we collect and store your email address. From that point forward, your email address is used to send you information about Brilliant’s products and services unless you opt-out of such emails using the opt-out link in the emails.
16. Notifications and Feedback
Brilliant 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 Brilliant account, hard copy, or posting of such notice on the Brilliant website. Brilliant is not responsible for any automatic filtering you or your network provider may apply to email notifications. Brilliant recommends that you add the @brilliant.tech domain name to your email address book to help ensure you receive email notifications from Brilliant.
We welcome feedback, comments and suggestions for improvements to our Products and Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, transferable license, with the right to grant sublicenses, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
17. Force Majeure.
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, terrorism, 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.
18. Protection of Confidentiality and Intellectual Property Rights.
Notwithstanding the foregoing, Brilliant 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 thereof 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 22 will survive any expiration or termination of these Terms.
Failure or delay by us to enforce any these Terms & Conditions will not constitute a waiver of our rights against you and does not affect our right to require future performance thereof.
22. Governing Law and Jurisdiction.
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 San Mateo 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.