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Brikl Terms & Conditions

Last update: June 14, 2023

These Brikl Terms & Conditions (the Agreement) are entered into on the date accepted by Licensee (“Effective Date”) and is entered into by and between Brikl Inc. with a notice address at 300 E Business Way, Suite 200, Summit Woods Corporate Center, Cincinnati, Ohio, 45241 (Brikl) and the entity identified on the Quote incorporating this Agreement or the entity otherwise entering into this Agreement (Licensee).

Brikl offers ecommerce solutions for MicroStores (as made available by Brikl and as updated from time to time, the Software), together with related services (including hosting, support and maintenance of the Software). In consideration of the mutual covenants and conditions set forth herein, and intending to be legally bound hereby, the parties agree as follows:

  1. Definitions

Business Day: any day which is not a Saturday or Sunday, or public holiday in the United States.

Documentation: the documents provided by Brikl for the Software, in either printed text or machine-readable form, including the technical documentation, program specification and operations manual.

Net Revenue: income from sales less payment processing fees and taxes.

Intellectual Property Rights: all worldwide intellectual and industrial property rights now or hereafter existing, including without limitation, copyright, trademark, trade secret, patent, rights of privacy and publicity, moral rights, and any other proprietary rights, as well as any and all applications, renewals, extensions and restorations thereof.

Quote: any quotation or other ordering document entered into between the parties that is governed by this Agreement.

Products: any Licensee products made available for sale via the Software in connection with this Agreement.

  1. The Services
  1. Brikl shall provide the following core services (the Services) relating to the licensing of the Software (the Software Services) to the extent set forth on an applicable Quote or as may otherwise be agreed upon by the parties from time to time:
  1. Brikl shall license an ecommerce software platform for MicroStores (the MicroStores).
  2. Brikl shall provide additional services relating to the hosting, support and maintenance of the Software (the Support Services).
  3. Brikl shall maintain and operate the MicroStores on such terms.
  4. Brikl shall manage the server and host the database for the Software.
  1. Brikl shall not provide the following services relating to the Software (the Excluded Services):
  1. Brikl shall not provide, and shall have no liability under this Agreement or otherwise in respect of, any services relating to the marketing or selling of any of the Products via the Software.
  2. Brikl shall not provide, and shall have no liability under this Agreement or otherwise in respect of, any services relating to the management of production of any of the Products, any services relating to the returns of any of the Products, any services relating to the quality control of any of the Products, any services relating to the shipping and delivery of any of the Products, and any services relating to customer support (including any requests for any Product returns or replacements).
  3. Brikl shall not provide, and shall have no liability under this Agreement or otherwise in respect of, any services relating to the registration, purchase monitoring or deactivation of domain names. 
  4. Brikl shall not provide, and shall have no liability under this Agreement or otherwise in respect of the accuracy or reliability of the pricing provided by a supplier-decorator. Licensee is encouraged to verify pricing details directly with the respective supplier-decorator before making any decisions or commitments based on the information available on this platform.
  1. In the course of providing the Services (and in particular the Support Services), Brikl shall have no obligation to correct any faults that arise from (Excluded Faults):
  1. use of the Software in combination with any equipment or software not provided by Brikl or not designated by Brikl for use with the Software, or any fault in any such equipment or software, unless otherwise agreed upon; or
  2. any operational error by Licensee or any breach of Licensee's obligations under this Agreement.
  1. Payments and Invoicing
  1. In consideration of the Software Services and the Support Services, Licensee shall pay Brikl the amounts contemplated in an applicable Quote or otherwise agreed in writing.
  2. Licensee agrees that (a) it shall be solely responsible for activating and maintaining the Stripe payment account, TaxJar account and other applications as may be agreed to by the parties from time to time; and (b) if it does not wish to activate and maintain these accounts, Licensee is solely responsible for deactivating these accounts. Unless otherwise agreed upon by the parties, Licensee expressly acknowledges and agrees that its Stripe account shall be its default payment account for the Software to process online payments and to manage the payment of the commission fees contemplated in a Quote (Commission) from Licensee to Brikl.
  3. Licensee expressly acknowledges and agrees that Commission shall be payable in respect of any sales by Licensee that were commenced or originated online via the Software notwithstanding that such sales may subsequently be concluded and paid for offline.
  4. Not later than the last day of each calendar month, Licensee shall provide Brikl with a statement setting out the value of the Commission for offline payments to be paid for that month (the Monthly Commission Statement). Brikl shall issue an invoice to Licensee for the Commission promptly following receipt of the Monthly Commission Statement. By default, the payment of the Commission for offline payments in accordance with the invoice will be automatically executed by direct debit from Licensee’s bank account at the end of each month.  In case such automatic debit is not available, Licensee shall pay the Commission to Brikl within 15 calendar days of the date of the invoice.
  5. If Licensee fails to make any payment due to Brikl under this Agreement by the due date for payment, then, without limiting Brikl's remedies under this Agreement, (a) Brikl may, in its sole discretion, suspend Licensee’s access to its account and the Services, and (b) Licensee shall pay interest on the overdue amount at the lesser of (i) 1.5% per month or (ii) the maximum amount permitted by law. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount.
  6. All amounts payable under this Agreement shall be exclusive of tax. All fees owed pursuant to this Agreement (including any monthly minimums) are non-cancellable and non-refundable. All amounts due under this Agreement shall be paid by Licensee to Brikl in full without any offset, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). 
  1. Grant of License
  1. Subject to the terms of this Agreement and in consideration of the Commission, and subject to the following conditions, Brikl hereby grants to Licensee a non-exclusive, revocable license for the term of the Agreement to use the Software (the License):
  1. Licensee’s use of the Software shall be restricted to use for the normal business purposes of Licensee (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of Licensee);
  2. except as expressly stated in this Agreement, Licensee has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part;
  3. Licensee may not use the Software other than as specified in this Agreement without the prior written consent of Brikl, and Licensee acknowledges that additional fees may be payable on any change of use approved by Brikl;
  4. Licensee shall not without the prior written consent of Brikl sub-license, assign or novate the benefit or burden of the License in whole or in part;
  5. Licensee shall not without the prior written consent of Brikl allow the Software to become the subject of any charge, lien or encumbrance;
  6. Licensee shall not without the prior written consent of Brikl deal in any other manner with any or all of its rights and obligations under this Agreement; and
  7. Licensee shall notify Brikl as soon as it becomes aware of any unauthorized use of the Software by any person.
  1. Intellectual Property Rights
  1. All Intellectual Property Rights in the Software and all Intellectual Property Rights arising out of or in connection with the Services shall belong to Brikl, and Licensee shall under no circumstances have any rights in respect of any such Intellectual Property Rights except as expressly provided for in this Agreement.
  2. All Intellectual Property Rights in the Products shall belong to Licensee and Brikl shall have no rights in respect of any such Intellectual Property Rights except to the extent that use of such Intellectual Property Rights (e.g. copyright or trade marks) are required for the provision of the Services under this Agreement (e.g. to make images of the Products available via the Software).
  3. Each party shall do or procure to be done all such further acts and things and procure the signature of all such other documents as the other party may from time to time require for the purpose of giving each party the full benefit of the provisions of this Section 5.
  1. Confidentiality and Publicity
  1. Each party shall, during the term of this Agreement and thereafter, (a) keep confidential, (b) not use for any purposes other than exercising its rights and performing its obligations in connect with this Agreement, and (c) not disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party (Confidential Information), unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party. This Agreement constitutes the Confidential Information of Brikl. Each party shall use reasonable efforts to prevent the unauthorized disclosure of any such information.
  2. Each party shall notify the other party if any of its staff connected with the provision or receipt of the Services becomes aware of any unauthorized disclosure of any Confidential Information and shall afford reasonable assistance to the other party, at that other party's reasonable cost, in connection with any enforcement proceedings which that other party may elect to bring against any person. Each party shall be responsible for any breach of this article by its affiliates, directors, agents or any other appointees.
  1. Personal Data and Licensee Data
  1. Both parties will comply with all applicable law in connection with the collection and use of personally-identifiable information (Personal Data) in connection with this Agreement.
  2. Licensee will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Brikl for the duration and purposes of this Agreement so that Brikl may lawfully use, process and transfer the Personal Data in accordance with this Agreement on Licensee's behalf.
  3. Licensee hereby grants to Brikl a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate Licensee Data to the extent reasonably required for the performance of Brikl’s obligations and the exercise of Brikl’s rights under this Agreement. Licensee warrants to Brikl that Licensee has the right to provide such Licensee Data to Brikl in accordance with this Agreement. Licensee Data means information, data and other content, in any form or medium, including Personal Data, that is collected, downloaded or otherwise received, directly or indirectly from Licensee by or through the Software or Services, but does not include any data collected, downloaded or otherwise received, directly or indirectly from any other user of the Software or Services.
  4. Licensee consents to Brikl appointing third-party processors of Personal Data and Customer Data under this Agreement. As between Licensee and Brikl, Brikl shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Section.
  5. Except as expressly provided, this Agreement does not transfer ownership of, or create any licenses (implied or otherwise) in, any Intellectual Property Rights in any data.
  1. Brikl's Warranties and Disclaimer
  1. Brikl represents and warrants to Licensee that it will use commercially reasonable efforts to ensure the Services are performed in accordance with all applicable laws and regulations and with industry-standard skill and care.
  2. ALL OTHER CONDITIONS, WARRANTIES OR OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN THE PARTIES OR BE IMPLIED OR INCORPORATED INTO THIS AGREEMENT OR ANY COLLATERAL CONTRACT, WHETHER BY STATUTE, LAW OR OTHERWISE, ARE HEREBY EXCLUDED INSOFAR AS IS PERMISSIBLE BY LAW, INCLUDING THE IMPLIED CONDITIONS, WARRANTIES OR OTHER TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE AND THE USE OF REASONABLE SKILL AND CARE. No representation or warranty is given by Brikl that all faults will be fixed, or will be fixed within a specified period of time.
  1. Limits of Liability
  1. BRIKL SHALL NOT IN ANY CIRCUMSTANCES HAVE ANY LIABILITY FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE LOSSES OR DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER FORESEEABLE OR WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) AMOUNTS EXCEEDING THE COMMISSIONS PAID BY LICENSEE IN THE THREE (3) MONTHS PRECEDING THE DATE GIVING RISE TO THE CLAIM.
  2. Brikl shall have no liability in respect of, and Licensee shall indemnify Brikl against, all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Licensee arising out of or in connection with any claim made by any third party in connection with any infringement of any third party intellectual property rights via the Software (including any claim that any photographs, pictures or other content or materials made available via the Software infringe any third party intellectual property rights).  
  3. The Software is a web-based platform for exchanging information and concluding sale and purchase transactions between buyers and sellers and accordingly Brikl shall not represent Licensee or any customer in any specific transaction. Brikl shall have no control over the pricing, quality, safety, lawfulness or availability of any Products offered for sale via the Software and accordingly Brikl shall have no liability in respect of any uncompleted sales, inconveniences, business disruptions or any other similar loss, expenditure or liability that may arise in relation to the use of the Software.
  1. All dates supplied by Brikl for the delivery of the Software or the provision of Services shall be treated as approximate only. Brikl shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
  2. The terms in this Section shall apply to the fullest extent permissible by law.
  1. Term and Termination
  1. This Agreement shall take effect on the Effective Date and, subject to termination in accordance with the provisions of this Agreement, shall continue for the initial term set forth in the applicable Quote (the Initial Term). Upon the expiration of the Initial Term, this Agreement shall remain in effect from year to year until terminated by either Brikl or Licensee on one month’s prior written notice to the other to expire on an anniversary of the expiration of the Initial Term.
  2. Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may at any time terminate this Agreement with immediate effect by giving written notice to the other party if:
  1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
  2. the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
  1. the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws.
  1. Effect of Termination
  1. On termination of this Agreement:
  1. Other than as set out in this Agreement, neither party shall have any further obligation to the other under this Agreement after its termination.
  2. The following provisions shall survive termination of this Agreement: Sections 1, 5, 6, 7, 8, 9, 10 and 12.
  1. Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
  1. If a party is required by any law, regulation, or government or regulatory body to retain any documents or materials containing the other party's Confidential Information, it shall notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.
  2. On termination of this Agreement for any reason, Licensee's right to receive the Services shall cease automatically and each party shall as soon as reasonably practicable:
  1. return, destroy or permanently erase any documents, handbooks, CD-ROMs or DVDs or other information or data provided to it by the other party containing, reflecting, incorporating or based on Confidential Information belonging to the other party. If required by the other party, it shall promptly provide written evidence that these have been destroyed and that it has not retained any copies of them; and
  2. return all of the other party's equipment and materials, failing which, the other party may enter the relevant premises and take possession of them. Until these are returned or repossessed, the party in possession shall be solely responsible for their safe-keeping.
  1. On termination of this Agreement for any reason, Licensee shall immediately pay any outstanding unpaid invoices and interest due to Brikl. Brikl shall submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and Licensee shall pay these invoices immediately on receipt.
  1. Dispute Resolution
  1. It is the intention of the parties to settle amicably by negotiation all disagreements and differences of opinion on matters of performance, procedure and management arising out of this Agreement. Accordingly, it is agreed that the procedure set out in this Section shall be followed before the serving of written notice terminating this Agreement, or in relation to any matter of dispute between the parties concerning performance, procedure or management.
  1. If any disagreement or difference of opinion arises out of this Agreement, the matter shall be addressed as follows:
  1. the parties shall arrange a call or a meeting to attempt a resolution. Should they not meet within 14 days of the date on which either party convenes a call or meeting to resolve the matter, or should they not be able to resolve the matter within 14 days of first meeting; then
  1. the matter shall promptly be referred to mediation. There shall be one mediator and the location of the mediation and the identity of the mediator shall be agreed to by the parties in advance. The place of the mediation shall be Ohio. The language of the mediation shall be English.
  1. If, within 30 days of the matter first having been referred to mediation, no Agreement has been reached as to the matter in dispute, the dispute resolution process set out in this Section shall be deemed to have been exhausted in respect of the matter in dispute, and dispute shall be finally settled under the JAMS Comprehensive Arbitration Rules and Procedures (Rules) by one arbitrator appointed in accordance with the said Rules. The place of the arbitration shall be Ohio. The arbitration shall be conducted in English.
  1. For the avoidance of doubt, this Section shall not prevent either party from seeking injunctive relief in the case of any breach or threatened breach by the other of any obligation of confidentiality or any infringement by the other of the first-named party's Intellectual Property Rights.
  1. General
  1. Assignment and subcontracting. Licensee may not assign, novate, charge, subcontract or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of Brikl (such consent not to be unreasonably withheld or delayed).
  1. Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
  1. Remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
  1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties and supersedes and extinguishes all previous Agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
  1. Amendment. Brikl may amend, update or otherwise modify these terms upon providing written notice to Licensee. Such modified terms shall take effect on Licensee’s next use of the Software or Services, and such use shall constitute acknowledgment and acceptance of such modified term. No other amendment to this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
  1. Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted, the parties shall negotiate in good faith to agree to a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
  1. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement. Transmission of the executed signature page of a counterpart of this Agreement by (a) fax or (b) email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this Agreement. If either method of delivery is adopted, without prejudice to the validity of the Agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter. No counterpart shall be effective until each party has executed and delivered at least one counterpart.
  1. Third-party rights. No one other than a party to this Agreement, their successors and permitted assignees shall have any right to enforce any of its terms.
  1. No partnership or agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party as the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
  1. Force majeure. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for one month, the party not affected may terminate this Agreement by giving 30 days written notice to the affected party. If termination occurs under this Section, Brikl shall be entitled to payment on a quantum meruit for all work done before termination.
  1. Notices. Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be: (a) delivered by hand or by registered letter at its registered office (if a company) or its principal place of business (in any other case); or (b) sent by email to the main email address for that party last used between the parties. Any notice or communication shall be deemed to have been received: (a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (b) if sent by registered letter, three business days after postmarked date; or (c) if sent by email, at 9.00 am on the next Business Day after transmission. This Section does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  1. Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Ohio. Venue for all disputes arising out of or relating to this Agreement shall exclusively be in the state or federal courts situated within the State of Ohio, and the parties agree to submit to the personal and exclusive jurisdiction of these courts.
  2. Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another.