Last modified January 2, 2011
This agreement governs the usage of software, services, and websites (referred to collectively as "Services" in this document) provided by Brekiri BVBA, a Belgium corporation, by each person or entity (each referred to as a "User") accessing or using the Services. Your usage of Brekiri Services indicates agreement to these terms. If you do not accept these terms, you may not use Brekiri Services.
Each User hereby warrants that if it is a corporation or other legal entity, User is validly formed and existing under the laws of its jurisdiction and has duly authorized its agent or agents to enter into this Agreement and, if an individual, User is of the age of majority in his or her place of residence.
If User purchases a paid subscription to the Services (a "Subscription"), User shall pay all fees to Brekiri BVBA, as well as VAT and any other applicable taxes, applicable to such Subscription, as published on the site. Brekiri may change such fees at any time and in its sole discretion, provided that any such change shall become effective at the end of the then-current term of User's Subscription. Brekiri will provide User with prior notice of any change in fees to allow User to cancel User's Subscription prior to the end of the then-current term of User's Subscription.
Subscription membership in the Services is on a continuous service basis. This means that, subject to the terms and conditions of this Agreement, Brekiri shall automatically renew User's Subscription at the end of its term unless User's Subscription is canceled using the tool in User's account page on the Site at any time prior to the end of the then-current Subscription.
User will be charged a renewal rate equal to the rate for the immediately preceding Subscription period, based upon the Subscription program (annual, quarterly, monthly, etc.) that User has chosen, unless Brekiri has notified User of any new rate in advance.
A cancellation of a Subscription requested by User through User's account page will become effective on the date that the then-current Subscription period expires.
If User has elected to pay subscription fees by credit card, User hereby warrants that the credit card information provided by User is correct, and User shall promptly notify Brekiri of any changes to such credit card information. User acknowledges and agrees that if User's credit card payment cannot be processed for any reason, Brekiri may suspend or cancel User's Subscription.
Certain content and information provided on and through this Site and Services, including, without limitation, documents, graphics and images (collectively, the "Brekiri Materials") are provided to you by Brekiri and are the copyrighted and/or trademarked work of Brekiri or Brekiri's contributors. Brekiri grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Brekiri Materials solely for your personal use in connection with the Site and Services.
Except as expressly permitted in this Agreement, you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Brekiri Materials in any manner. This limited license terminates automatically, without prior notice to you, if you breach any term of this Agreement. Except for the limited rights granted hereunder, you acknowledge that you have no right, title or interest in or to any Brekiri Materials.
In connection with User's use of the Site and the Services, and without limiting any of User's other obligations under this Agreement or applicable law, User:
(a) shall comply with: (i) this Agreement, including Brekiri's anti-spam policy and all other policies as published on the Site from time to time, (ii) all local and international laws applicable to User;
(b) shall not upload, post, email, distribute, communicate, transmit or otherwise make available any User Content: (i) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, vulgar, obscene, offensive, indecent, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, (ii) that infringes any patent, trademark, trade secret, copyright, or other intellectual property right of any party, (iii) that User does not have the right to make available by reason of any law or contractual or fiduciary relationship (including inside information, and proprietary or confidential information obtained or disclosed in connection with an employment relationship or pursuant to a confidentiality agreement), or (iv) that comprises or includes any "junk mail", "spam", "chain letters", "pyramid schemes", or any similar form of solicitation;
(c) shall not impersonate any other person or entity, including Brekiri, or a Brekiri official, forum leader, guide or host, or falsely state or otherwise misrepresent User's affiliation with any other person or entity;
(d) shall not interfere with or disrupt the Site or the Services or servers or networks connected to the Site or the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site or the Services;
(e) shall not engage in excessive usage of the Site or the Services, as determined by Brekiri in its sole discretion, including usage that adversely affects the speed, responsiveness, or functionality of the Site, or disrupts the availability of the Site and the Services for other users;
(f) shall not attempt to damage, deny service to, hack, crack, reverse engineer, or otherwise interfere with the Site or the Services in any manner;
User further acknowledges and agrees that Brekiri may cooperate with any governmental authority in connection with any investigation into User's use of the Site or the Services, including use in contravention of applicable laws, and may, in accordance with applicable laws, disclose any User Content, and any other information pertaining to the User or to User's use of the Site or the Services, to such governmental authority in connection with any such investigation.
User shall indemnify, defend and hold harmless Brekiri, its affiliates, and their respective directors, officers, employees, servants and agents from and against all claims, demands, damages, liabilities and costs (including legal fees on a full indemnity basis) arising out of or in connection with: (a) User's use of the Site or the Services, including User's use of or reliance on any information or materials obtained through the use of the Site or the Services, (b) any other use of the Services by a third party using User's account (whether or not authorized by User), (c) User's breach of this Agreement, including any of User's representations and warranties under this Agreement, or (d) User's contravention of any law applicable to User.
This Agreement shall automatically become effective upon User's first use of the Site or the Services, and continue indefinitely until it is terminated.
Brekiri may cancel User's Subscription (if User has one) and automatically terminate this Agreement immediately by notice to User in the event that User breaches any of User's representations, warranties, or obligations under this Agreement or contravenes any applicable law.
User may cancel User's Subscription (if User has one) and terminate this Agreement by written notice to Brekiri in the event that Brekiri materially breaches any of its obligations under this Agreement, if such breach is not cured within sixty days of Brekiri 's receipt of notice of breach from such User.
Upon termination of this Agreement for any reason, User shall immediately cease all use of the Site and the Services, and User acknowledges and agrees that Brekiri may, in its sole discretion, take any measures Brekiri reasonably deems necessary or desirable to prevent further use by User of the Site or Services, including by blocking User's IP address. User further acknowledges and agrees that upon termination of this Agreement, Brekiri shall not be obliged to retain any User Content or to provide the same to User, but may elect to do so in its sole discretion.
Termination of this Agreement for breach as defined in this section shall not entitle User to a refund of any unearned Subscription fees previously paid by User.
Brekiri reserves the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the Services or any part thereof, or User's access thereto, and to modify, suspend or delete the Site or any part thereof, and Brekiri will use commercially reasonable efforts to provide reasonable advance notice of changes that significantly impact the Services in a negative manner. In the case of changes that significantly impact the Services in a negative manner, User is entitled to cancel User's Subscription, if any. User acknowledges and agrees that Brekiri shall not be liable to User, or to any third party, for any modification, suspension or discontinuance of the Services or any modification, suspension or deletion of the Site.
If User engages in excessive usage of the Site or the Services (as described in the section on User Conduct), Brekiri may take such action as it considers necessary to prevent such excessive usage and to restore the availability of the Site and the Services to other users, including by limiting or suspending User's access to the Site and the Services, or by canceling User's Subscription and terminating this Agreement.
USER ACKNOWLEDGES AND AGREES THAT THE SITE AND THE SERVICES ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," AND "WITH ALL FAULTS," AND THAT BREKIRI HAS NO RESPONSIBILITY OR LIABILITY FOR THE LOSS OR DELETION OF, OR FAILURE TO RECEIVE, PROCESS, OR STORE ANY USER CONTENT MAINTAINED OR TRANSMITTED USING THE SERVICES.
USER ACKNOWLEDGES AND AGREES THAT THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES CONTAINED IN OR AVAILABLE THROUGH THE SITE OR THE SERVICES, INCLUDING INFORMATION, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE BY OTHER USERS OF THE SITE OR THE SERVICES, MAY INCLUDE INACCURACIES OR ERRORS.
USER FURTHER ACKNOWLEDGES AND AGREES THAT USER, AND NOT BREKIRI, IS RESPONSIBLE FOR EVALUATING THE ACCURACY, RELIABILITY, COMPLETENESS, AND USEFULNESS OF ANY INFORMATION OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES.
BREKIRI MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, OR LACK OF VIRUSES, OR OTHER HARMFUL COMPONENTS OF THE SITE OR THE SERVICES, OR THE ACCURACY OF SUCH INFORMATION, SOFTWARE, PRODUCTS AND SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BREKIRI, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS AND AGENTS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO SUCH INFORMATION, SOFTWARE, PRODUCTS OR SERVICES, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE.
IN NO EVENT SHALL BREKIRI, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE, LOSS OF USE OR DATA, OR COSTS OF COVER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF BREKIRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES ARISING OUT OF:
(a) THE USE OR PERFORMANCE OF, THE DELAY IN PROVIDING, THE FAILURE TO PROVIDE, OR THE INABILITY TO USE, THE SITE OR THE SERVICES, OR
(b) ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES CONTAINED IN OR AVAILABLE THROUGH THE SITE OR THE SERVICES, INCLUDING INFORMATION, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE BY OTHER USERS OF THE SITE OR THE SERVICES.
USER SPECIFICALLY AGREES THAT BREKIRI, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS AND AGENTS SHALL NOT BE LIABLE FOR:
(c) UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR NOT RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE OR THE SERVICES OR IN RELIANCE UPON ANY INFORMATION OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES,
(d) ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF A THIRD PARTY'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, OR
(e) ANY CONTENT SENT USING, OR INCLUDED IN, THE SITE OR THE SERVICES BY ANY THIRD PARTY.
IF USER IS DISSATISFIED WITH ANY PORTION OF THE SITE OR THE SERVICES, USER'S SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THIS AGREEMENT AND DISCONTINUE USING THE SITE AND THE SERVICES.
IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, BREKIRI, ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS IS LIABLE TO USER FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, BREKIRI'S (OR SUCH AFFILIATES', DIRECTOR'S, OFFICER'S, EMPLOYEE'S, SERVANT'S OR AGENT'S, AS APPLICABLE) TOTAL LIABILITY IN RESPECT OF SUCH AMOUNTS SHALL NOT EXCEED THE GREATER OF:
(a) THE AMOUNT OF ONE HUNDRED EURO, AND
(b) THE AMOUNTS ACTUALLY RECEIVED BY BREKIRI FROM USER UNDER THIS AGREEMENT.
USER ACKNOWLEDGES AND AGREES THAT WITHOUT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, BREKIRI WOULD NOT BE ABLE TO OFFER THE SITE OR THE SERVICES, AND THAT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF THEY WOULD CAUSE USER'S REMEDIES UNDER THIS AGREEMENT TO FAIL OF THEIR ESSENTIAL PURPOSE.
Notwithstanding the foregoing, some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, damages to life, body or health or in case of bodily injury, death, fraud, gross negligence, or breach of a fundamental obligation, and so the foregoing limitation and exclusions do not apply to User to that extent.
The Site and the Services and all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Brekiri BVBA Copyright 2010, its affiliates, or its third party licensors. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. Brekiri reserves all rights in the Site and the Services that are not expressly granted. Trademarks, names, and logos on this Site are the property of their respective owners. Nothing in this Agreement shall be deemed to assign or transfer to User any rights to any such intellectual property. User further acknowledges and agrees that Brekiri Materials and other content made available to User through the Services may be subject to the intellectual property rights of third parties.
Brekiri may provide references, frames or hyperlinks to internet websites maintained by third parties. Brekiri does not warrant that it has reviewed such third party websites and makes no claims, representations or warranties regarding such third party websites or the contents of the same. Brekiri is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties through such third party websites or by any other means.
User acknowledges and agrees that User, and not Brekiri, is responsible for determining which laws may apply to User's use of the Site and the Services and assessing User's obligations under such laws.
All notices and other communications required or permitted to be given by Brekiri to User under this Agreement will be deemed to be properly given on the date when:
User may give notices to Brekiri under this Agreement by email to email@example.com.
This Agreement comprises the entire agreement between Brekiri and the User relating to the Site and the Services. Both User and Brekiri confirm that they have not relied upon, and shall have no remedy in respect of, any agreement, warranty, statement, representation, understanding or undertaking made by any party (whether or not a party to this Agreement) unless that agreement, warranty, statement, representation, understanding or undertaking is expressly set out in this Agreement.
The use of the terms "includes" and "including", and similar terms, shall be deemed not to limit what else might be included.
This Agreement shall be governed by the laws of Belgium. User may not assign this Agreement without Brekiri's prior written consent, which may be withheld in Brekiri's sole discretion.
Brekiri may assign this Agreement at any time to the successor in interest in connection with a merger, consolidation or other corporate reorganization in which Brekiri participates or to the purchaser of all or substantially all of Brekiri's assets to which this Site relates.
In any dispute arising out of this Agreement, the substantially prevailing party shall be entitled to payment of its reasonable legal fees and costs.