Brinx Software Inc.
PLEASE NOTE THAT THESE TERMS CONTAIN IMPORTANT RESTRICTIONS AND LIMITATIONS SO PLEASE READ THEM CAREFULLY BEFORE USING THE WEBSITE OR SOFTWARE. By DOWNLOADING THE SOFTWARE, ACCESSING THE SERVICES OR USING THE WEBSITE, you hereby signify that you have read, understood, and agree to be bound by these Terms. We may make changes to these Terms from time to time. If we do, we will require you to review and click “accept” the latest version of these Terms.
1. REGULATORY COMPLIANCE
It is the sole responsibility of the user to ensure that the user complies with all applicable laws and regulations in respect of the User’s use of the Software. By downloading the Software, you represent and warrant that you are in compliance with all applicable laws and regulations in respect of any products and/or services that you will offer using the Software.
To use and/or register for the Software or Services, you must (a) be over the age of majority in the jurisdiction in which you reside; and (b) if registering or using the Software or Services on behalf of a business or other entity, have the authority to bind the entity to these Terms.
3. LICENSE TO USE THE SOFTWARE
We grant to you a limited, personal, non-exclusive, non-transferable, non-sublicensable license to download a copy of the Software and use the Software for your own use and not for resale or further distribution. Your right to use our Software is limited by all terms and conditions set forth in these Terms.
Except for this license granted to you, we and our licensors retain all right, title and interest in and to the Software and the underlying technology, including all related intellectual property rights in the same. Our Software and technology are protected by applicable intellectual property laws, including Canadian copyright law and international treaties.
You shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software; (b) circumvent any user limits or other license timing or use restrictions that are built into the Software; (c) sell, rent, lend, transfer, distribute, license, or grant any rights in the Software in any form to any person without the written consent of Brinx; (e) remove any proprietary notices, labels, or marks from the Software; (d) unbundle any component of the Software and/or; (e) build a product or Software that is competitive; or (f) copy any ideas, features, functions or graphics of the Software.
You are also prohibited form posting, uploading, transmitting any material that: (a) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful, or racially or ethnically objectionable, encourages criminal behavior, gives rise to civil liability, violates any law, or is otherwise objectionable; (b) You do not have a right to make available under any law or under a contractual relationship; (c) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party (including privacy rights); (d) is or contains unsolicited or unauthorized advertising, solicitations for business promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; (e) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or data or the Website or that of any users or viewers of the Website or that compromises a user’s privacy; (f) or contains any falsehoods or misrepresentations or create an impression that You know is incorrect, misleading, or deceptive, or any material that could damage or harm minors in any way;
We welcome your suggestions, comments and feedback on the Website or Software (“Feedback”). If you provide us with Feedback you agree that: (a) we are not subject to any confidentiality obligations in respect to the Feedback; (b) the Feedback is not confidential or proprietary information belonging to you or any third party and you have all of the necessary rights to disclose the Feedback to us; (c) Brinx (including all of its successors and assigns) may freely use Feedback without any restrictions; and (d) you are not entitled to receive any compensation or re-imbursement of any kind in respect of Feedback.
Users shall pay all fees specified in an order for the Software or Services (“Order”). All fees are payable in the currency indicated on the Order. Except as otherwise specified herein or in an Order, fees are based on number of licenses purchased and not actual usage. Payment obligations are non-cancelable. Fees paid are non-refundable.
Any payment not received by a User who purchases any Purchased Software by the due date may accrue, at Brinx’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
Unless otherwise stated, fees for Purchased Software do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, use or withholding taxes (collectively, “Taxes”). Users are responsible for paying all Taxes associated with Purchased Software, excluding taxes based on Brinx’s net income or property. If Brinx has the legal obligation to pay or collect Taxes for which User is responsible under this section, the appropriate amount shall be invoiced to and paid by User.
Brinx reserves the right to change the fees for Software or any Services upon 30 days’ notice to you.
No support is provided for the Software unless otherwise agreed in a separate agreement with Brinx.
Brinx may at any time and for any reason or no reason, without prior notice, immediately suspend all or a portion of your Account and/or access to the Website or Services. Cause for such termination shall include, but not be limited to: (a) violations of the Terms or any other policies guidelines that are referenced herein and/or posted on the Website or through the Services; (b) a request by you to cancel or terminate your account; (c) discontinuance or material modification to the Services or any part thereof; (d) a request and/or order from law enforcement, a judicial body, or other government agency; (e) where provision of the Services to you is or may become unlawful; (f) unexpected technical or security issues or problems; or (g) your participation in fraudulent or illegal activities. Any such termination or suspension shall be made by Brinx in its sole discretion, and Brinx will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your Account and/or access to the Services.
8. Confidential Information
“Confidential Information” means any information, technical data, or know-how concerning either party, including, but not limited to, research, products, services, customers, markets, business policies or practices, unreleased software, developments, inventions, processes, designs, drawings, engineering, marketing, business plans or finances. Obligations of non-disclosure will not apply to Confidential Information which the receiving party can conclusively establish (i) was in the possession of the receiving party without an obligation of confidentiality at the time of disclosure; (ii) prior to or after the time of disclosure became part of the public domain without the act or omission of the receiving party to whom it was disclosed; (iii) was disclosed to the receiving party by a third party under no legal obligation to maintain the confidentiality of such information; or (iv) was independently developed by the receiving party without use or reliance upon the Confidential Information.
Each party covenants to the other party that it will not at any time, other than in accordance with these Terms, disclose the Confidential Information of the other to any person or entity without the prior written approval of the disclosing party, or use any such Confidential Information for any purpose, other than as necessary to fulfill these Terms, unless specifically pre-approved in writing by the disclosing party. However, the receiving party may disclose Confidential Information in accordance with a judicial or other governmental order, provided that the receiving party uses all legitimate and legal means available to minimize the disclosure to third parties, the disclosure of the Confidential Information is restricted in the same manner as is the confidential information of the receiving party or other litigating parties; and the receiving party shall give the disclosing party reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent.
The receiving party may disclose Confidential Information of the other only to its employees and consultants who have a ‘need-to-know’ for the purposes of fulfilling these Terms. Each party shall execute appropriate written agreements with employees and consultants sufficient to enable it to comply with all of the confidentiality provisions of this Agreement. Neither party shall reverse engineer, decompile or disassemble any Confidential Information of the other party. The Confidential Information obligations in these Terms shall survive the termination or expiration of these Terms.
9. Disclaimer of Warranties
THE WEBSITE, SOFTWARE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE WEBSITE, SOFTWARE AND SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BRINX OR THROUGH THE SOFTWARE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED HEREIN.
WITHOUT LIMITING THE FOREGOING, BRINX, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS; THAT THE SOFTWARE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED.
10. Limitation of Liability
IN NO EVENT SHALL BRINX, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE WEBSITE, SOFTWARE OR SERVICES. UNDER NO CIRCUMSTANCES WILL BRINX BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SOFTWARE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
BRINX ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES in the WEBSITE, SOFTWARE AND SERVICES; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SOFTWARE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOFTWARE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SOFTWARE BY ANY THIRD PARTY; AND/OR (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 SOFTWARE. IN NO EVENT SHALL BRINX, 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 BRINX HEREUNDER.
You agree to defend, indemnify and hold BRINX, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) your use of the WEBSITE, SOFTWARE AND SERVICES; (B) any violation by you of these Terms; (C) your violation of any rights of another (D) ANY VIOLATION BY YOU OF ANY APPLICABLE LAW OR REGULATION; AND (E) ANY BREACH OF ANY REPRESENTATION OR WARRANTY MADE BY YOU IN THESE TERMS. This obligation shall survive the termination or expiration of these Terms and/or your use of the Software, SERVICES AND/OR WEBSITE.
12. THIRD-PARTY CONTENT
You acknowledge and agree that the website may contain advertisements from other third parties. If you elect to have any business dealings with anyone whose products or services may be advertised on the website, you acknowledge and agree that such dealings are solely between you and such advertiser and you further acknowledge and agree that Brinx shall not have any responsibility or liability for any losses or damages that you may incur as a result of any such dealings. The Website and Software may contain links to other websites that are not owned or controlled by Brinx. In no event shall any reference to any third party, advertisement, third-party product or service be construed as an approval or endorsement by Brinx of that third party, third-party product or service. Brinx is also not responsible for the content of any linked websites. Any third-party websites or services accessed from the website or app are subject to the terms and conditions of those websites and or services and you are responsible for
determining those terms and conditions and complying with them. The presence on the website or app of a link to any other website(s) or any advertisements does not imply that Brinx endorses or accepts any responsibility for the content or use of such websites, and you hereby release Brinx from all liability and/damages that may arise from your use of such websites or receipt of services from any such websites.
13. AVAILABILITY AND UPDATES
Brinx may alter, suspend, or discontinue this Website, Software or Services at any time and for any reason or no reason, without notice. The Website and/or Software may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons.
14. IP INFRINGEMENT
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances and in our sole discretion, accounts of users who are deemed to be repeat infringers. We may also, in our sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on or available through the Services infringes upon any copyright which you own or control, you may file a notification of such infringement in accordance with the DMCA with our Designated Agent as set forth below:
Brinx Software Inc.
7 Bayview Road,
Ottawa, ON, Canada
15. EXPORT CONTROL
Use of the Website, Software or Services may be subject to the export and import laws of Canada, the United
States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, but without limitation, the Brinx Website may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Brinx Website or the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Website, Software or the Services for any purposes prohibited by United States or Canadian law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
16. RELATIONSHIP OF THE PARTIES.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
You may not assign these Terms. Brinx may assign these Terms at any time and for any reason.
18. NO THIRD-PARTY BENEFICIARIES
There are no third-party beneficiaries to these Terms.
19. GOVERNING LAW
These Terms shall be governed by and construed in accordance with the laws in effect in the Province of Ontario without giving effect to any principles of conflicts of law. Any legal action or proceeding between Brinx and Users shall be brought exclusively in a court of competent jurisdiction located in Ottawa, Ontario, Canada.
20. ENTIRE AGREEMENT
concerning its subject matter.
Brinx may amend these Terms at any time by posting notice on the Website or otherwise delivering notice through the Services or to the contact information you provided. All material changes shall be effective 30 days of such notice.
No failure or delay by Brinx in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
The Parties acknowledge that they have expressly required that this agreement and all related documents be drafted in the English language. Les parties reconnaissent avoir expressément exigé que le présent convention et tous les documents connexes soient rédigés en langue anglaise.