THE BRICKELLIAN, Inc.
AGREEMENT ON TERMS & CONDITIONS OF USE
This Agreement on Terms & Conditions of Use (“Agreement”) is effective as of the date on which User (as defined below) indicates User’s acceptance of the terms and conditions stated in this Agreement, and is made by and between User (herein “User”, “user”, or “you”) and The Brickellian, Inc., a Florida, USA, corporation with its principal place of business at 1925 Brickell Ave., Suite D-301, Miami, Florida 33129, USA (“Brickellian”). Brickellian™ and you are sometimes referred to below as “Party” or “Parties” to this Agreement. All Terms and Conditions set forth herein, in our Privacy Policies and/or in other Legal Notices and documents elsewhere within Brickellian’s web domain known as www.TheBrickellian.com (or, herein, the “Website”), are expressly made a part hereof, and are incorporated herein by reference. By using our Website, you acknowledge receipt of, and your agreement with, Brickellian’s Privacy Policy for www.TheBrickellian.com.
This Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act (“E-Sign” Act). You enter into this Agreement by any act demonstrating your assent hereto, including without limitation clicking “I agree” or words of similar meaning. You may submit a paper copy of this transaction and print this form for your personal records. You have the right to withdraw your consent to use the E-Sign Act by emailing us to that effect at the address provided at our “Contact Us” link.
ELIGIBILITY TO USE THE BRICKELLIAN™ WEBSITE
This Agreement (as supplemented by the documents incorporated above) sets forth the legally binding terms for your use of the Brickellian’s Website. In consideration of your being permitted to use the Website, and for other good and valuable consideration which you acknowledge is received and sufficient, you agree to be bound by this Agreement. Under this Agreement, you are authorized to use the Website only if you agree to abide by all applicable laws and the terms of this Agreement. Please read this Agreement and save it. If you do not agree to be bound by this Agreement and to follow all applicable laws, you should leave the Website and discontinue your use of the Website. If you wish to become a User of the Website, you must read this Agreement and indicate your acceptance in one or more of the ways that such acceptance is asked for on the Website. You may receive a paper copy of this Agreement by emailing us (Subject: “T&C Agreement”), at the address specified at our “Contact Us” link.
By visiting www.TheBrickellian.com and/or downloading or using any content from this Website, you agree to be bound by this Agreement.
1. This Agreement applies to you (hereinafter “Visitor,” “you” or “User”), and if you are using this Website on behalf of any other party for which you are acting as an agent, it applies to you and any such party for which you are acting. The management of www.TheBrickellian.com reserves the right to change this Agreement from time to time in its sole discretion, and your continued use of this Website in any manner will indicate your agreement with the most current version of this Agreement posted on the Website at the time of your use. If you do not wish to be bound by this Agreement, do not accept this Agreement, do not use www.TheBrickellian.com in any manner, do not enter this Website, and do not download or use any content from this site. Brickellian™ and you are sometimes referred to hereinafter as “Party” or “Parties” to this Agreement.
2. This site is owned and operated by The Brickellian, Inc., a Florida corporation with its principal office in Miami, Florida, USA. As between you, the User, and Brickellian™, all content contained on this Website in any medium (“Content”) is owned by Brickellian™ and/or our providers. All such Content is protected by United States and international intellectual property laws.
3. As a User of our Website, you are granted a limited, personal, nontransferable, non-sub-licensable, revocable license to access and use our Website only as expressly permitted in this Agreement. Except for this limited license, we do not grant you any other rights or licenses with respect to this Website, and any rights or licenses not expressly granted herein are reserved to us and our providers.
4. You may not remove any copyright or other proprietary notices contained in any of the Content on www.TheBrickellian.com. Brickellian™ reserves the right to revoke anyone’s authorization to view, download and use the Content at any time, and you agree immediately to discontinue such use upon written notice from Brickellian™. As between you and Brickellian™, all rights not specifically granted to you under this Agreement are reserved to Brickellian™.
5. You may download, display, or print one (1) copy of any portion of the Content. If you do so, you may not modify the Content in any way, and you must reproduce the Brickellian™ trademark and/or copyright notice (or the third-party provider’s notice, as applicable) in the form:
“©2020, The Brickellian, Inc. -- All Rights Reserved”
as displayed on the relevant page(s) that you copy.
6. Except as provided above, you, as a User of www.TheBrickellian.com, may not:
-- Copy, reproduce, upload, post, display, republish, distribute or transmit any part of the Content in any form whatsoever;
-- Use a frame or border environment around the Website, or other framing technique to enclose any portion or aspect of the Website, or mirror or replicate any portion of the Website;
-- Modify, translate into any language or computer language, or create derivative works from, any Content or any part of this Website;
-- “Reverse-engineer” any part of this Website; or
-- Sell, offer for sale, transfer, or license any portion of this Website in any form to any third party.
7. Unauthorized use of this Website and/or the Content may violate applicable copyright, trademark or other intellectual property or other laws. You must retain all copyright and trademark notices, including without limitation proprietary notices, contained in the Content, and you must not alter, obscure or obliterate any of such notices. The use of such Content on any other website or in any environment of networked computers is prohibited. You are prohibited from posting on or transmitting through our Website any unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic or profane material; or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. In addition, you are prohibited from posting or transmitting any information which (a) infringes the rights of others or violates their privacy or publicity rights, (b) is protected by copyright, trademark or other proprietary right, except with the express written permission of the owner of such right, (c) contains a virus, bug or other harmful item, and/or (d) is used to collude unlawfully against another person in restraint of trade or competition. You shall be solely liable for any damages resulting from any infringement of copyright, trademark, or other proprietary right, or any other harm resulting from your use of this Website.
8. Unless otherwise provided within this Agreement, or unless specific applicable law requires Brickellian™ to allow you to do so, you may not do any of the following without the prior written consent of Brickellian™:
-- Use any robot, spider, other automatic device or manual process to monitor the Content and/or the Website;
-- Use the Website other than to observe, make legitimate inquiries or communications;
-- Use the Website to make any false or fraudulent communication;
-- Submit false or misleading information to the Website;
-- Post or transmit any unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law; or for any other purpose that is unlawful and/or prohibited by this Agreement;
-- Use, access or communicate with the Website in any way that, in the sole and absolute judgment of Brickellian™, adversely affects the performance or functioning of the Website, or any other computer systems or networks used by Brickellian™ or other Website users;
-- Upload or transmit to the Website, or use any device, software or routine, that contains viruses, Trojan horses, worms, time bombs, or other computer programming that may damage, interfere with or attempt to interfere with, intercept the normal operation of our Website, appropriate the Website or any system, or take any action that imposes an unreasonable load on our computer equipment or infringes upon the rights of any third party; or
-- Disguise the origin of information posted by or transmitted by you through the Website.
9. Content may not be used as a trademark or service mark, for (by way of illustration and not limitation) any pornographic use, unlawful purpose, to defame any person, to violate any person’s right of privacy or publicity, or to infringe upon any copyright, trade-name, trademark, or service mark of any person or entity. Unauthorized use of Content constitutes copyright infringement and shall entitle Brickellian™ to exercise all rights and remedies under applicable law, including without limitation an injunction preventing further use and monetary damages against all users and beneficiaries of the use of such Content. The foregoing is not a limiting statement of Brickellian’s rights or remedies in connection with any unauthorized use.
10. You understand that Brickellian™ may immediately terminate all agreements between us and may without notice refrain from doing further business with you if you fail to comply with any provision of this Agreement or with the specific terms and conditions applicable to you as a User of www.TheBrickellian.com. If your access is terminated, you agree immediately (1) to stop using this Website and any Content which you may have acquired, (2) to delete all such Content and all copies from all media in your possession or control of whatever type (whether now known or hereafter developed, invented or devised), and (3) to destroy all other copies or, at Brickellian’s request, return all such copies to Brickellian™. Your use of this Website and any Content shall comply with all applicable law. Brickellian™ may restrict or remove your access to this Website at any time, or restrict or remove the use of any Content for any reason, and may (or may choose not to) replace that Content with other Content, and you agree immediately to discontinue all use of the Content upon notification from Brickellian™.
11. Despite our efforts to provide accurate information, www.TheBrickellian.com may contain technical or other mistakes, inaccuracies or typographical errors. As a convenience, our Website may link to other sites that may be of interest to you but are not under Brickellian’s control. These links do not imply endorsement by Brickellian™, and we are not responsible for the availability of or the content contained in any linked site. The Website may contain or use technology that provides Brickellian™ and/or its affiliates with information regarding your use of this Website, or which permits Brickellian™ to audit your compliance with this Agreement via the use of software designed to track and identify Content. Please consult Brickellian’s Privacy Policy for specific information on Brickellian’s policies for use of your personal information.
12. You acknowledge that transmissions made by means of www.TheBrickellian.com are not confidential, and that your communications may be read or intercepted by others. You acknowledge and agree that by engaging in communication with www.TheBrickellian.com, no confidential, fiduciary, contractually implied or other relationship is created between you and Brickellian™, beyond that which is explicitly established by contract between you and us.
13. Any communications or materials you transmit to www.TheBrickellian.com, by electronic mail or otherwise, including without limitation any data, question, comment, suggestion, idea, or the like (“Communications”) will be treated as non-confidential and non-proprietary. By voluntarily submitting to us, or by posting on the Website, any Communications, you grant to Brickellian™ and all users of the Website a worldwide, non-exclusive, royalty free, perpetual, irrevocable, and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Communications in any form, media or technology (whether now known or hereafter invented or devised). Brickellian™ assumes no responsibility for any Communications posted or submitted, or for the return of such Communications. We want your feedback and appreciate your ideas and suggestions, but we are unable to answer every comment individually.
14. As a condition of your use of use of www.TheBrickellian.com for any purpose, you promise not to use the Website in any way that is unlawful or prohibited by this Agreement, or in any other way that is not reasonably intended by Brickellian™. By way of example and without limitation, you agree not to: (i) abuse, harass, impersonate, intimidate or threaten other users; (ii) post or transmit, or cause to be posted or transmitted, any matter that is infringing, libelous, defamatory, abusive, offensive, obscene, pornographic or otherwise violates any law or right of any third party; (iii) use the Website for any unauthorized purpose, or in violation of any applicable law, including intellectual property laws; (iv) infringe upon the intellectual property rights of Brickellian™, its users, or any third party; or (v) use any robot, spider, scraper, sniping software or other automated means to access www.TheBrickellian.com for any purpose without our express written permission. Additionally, you agree that you will not: (a) take any action that imposes, or may impose, in our sole and absolute opinion, an unreasonable or disproportionately large load on our infrastructure; (b) interfere or attempt to interfere with the proper working of our Website or any activities conducted on our Website; or (c) bypass any measures we may use to prevent or restrict access to our Website; or (d) advertise to, or solicit, any user to buy or sell any product or service, or use any information obtained from the site in order to contact, advertise to, solicit, or sell any product or service to any user without his/her prior explicit consent.
Violation of Brickellian’s rules may result in removal of your right to access our Website. To report violations by others of this Agreement, please use the “Contact Us” link on our Website.
15. [If you are a copyright owner or an agent thereof (“Owner”) and believe that any content on the www.TheBrickellian.com Website infringes upon the Owner’s copyright(s), rights of publicity, or any other rights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Brickellian’s Legal Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further details):
-- A physical or electronic signature of a person authorized to act on behalf of the Owner of a legal right that is allegedly infringed;
-- Identification of the copyrighted work or other legal right claimed to have been infringed, or, if multiple materials on www.TheBrickellian.com are intended to be covered by a single notification, a representative list of such works;
-- Identification of the material that is claimed to be infringing, the subject of infringing activity or is violative of any other legal right and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Brickellian™ to locate the material;
-- Information reasonably sufficient to permit Brickellian™ to contact Owner, such as an address, telephone number, and, if available, an electronic mail address;
-- A statement that Owner has a good faith belief that use of the material in the manner complained of is not authorized by the Owner or the law; and
-- A statement that the information in the notification is accurate, and under penalty of perjury, that Owner is authorized to act with regard to the legal right that is allegedly infringed.
Brickellian’s designated Legal Agent to receive notifications of claimed infringement is reachable through the “Contact Us” link on the Website. Please specify “Legal Agent” in your subject line.
Owner acknowledges that failure to comply with any or all of the above requirements may render Owner’s legal notice not valid.]
16. Your Indemnification of Brickellian™:
By using www.TheBrickellian.com, you agree to release and to hold harmless Brickellian™ and each of its respective parents, subsidiaries, affiliates and agencies, as well as the officers, directors, employees, shareholders and representatives of any of the foregoing entities, from any and all cost or liability (including without limitation reasonable attorney fees at all stages of the legal process, whether transactional or litigation-related, and at all levels of litigation) arising from claims or actions of any kind whatsoever, including, but not limited to injuries, damages or losses to persons and property which may be sustained in connection with your accessing and/or using www.TheBrickellian.com in any manner.
LIMITATION OF LIABILITY
17. BRICKELLIAN™ ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGE TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THIS WEBSITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE WEBSITE. IN NO EVENT SHALL BRICKELLIAN™ OR ANY OF ITS THIRD-PARTY PROVIDERS OR DISTRIBUTORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, CRIMINAL LAW OR OTHERWISE, WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH (i) ANY USE OF THIS WEBSITE OR CONTENT FOUND HEREIN, (ii) ANY FAILURE OR DELAY (INCLUDING BUT NOT LIMITED TO THE USE OF OR INABILITY TO USE ANY COMPONENT OF THIS WEBSITE), AND/OR (iii) THE PERFORMANCE OR NON-PERFORMANCE BY BRICKELLIAN™ OR ANY OF ITS THIRD PARTY PROVIDERS OR DISTRIBUTORS, INCLUDING BUT NOT LIMITED TO NON-PERFORMANCE RESULTING FROM BANKRUPTCY, REORGANIZATION, INSOLVENCY, DISSOLUTION OR LIQUIDATION, EVEN IF BRICKELLIAN™ OR SUCH THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO YOU OR TO ANY OTHER PARTY.
18. If, notwithstanding the foregoing, Brickellian™ and/or any third party provider or distributor should be found liable for any loss or damage which arises out of or is in any way connected with any of the functions or uses of this Website or its content, the liability of Brickellian™ and/or the third party providers and distributors shall in no event exceed, in the aggregate, the greater of (a) the subscription fee and service charge, if any, for accessing this Website, or (b) One Hundred United States Dollars (US$100.00). In its sole discretion, in addition to any other rights or remedies available to Brickellian™, and without any liability whatsoever, Brickellian™ at any time and without notice may terminate or restrict your access to any component of this Website. Some legal jurisdictions do not allow limitation of liability; so the foregoing limitation may not apply to you.
19. Your use of www.TheBrickellian.com is subject to our Privacy Policy. You agree that you have read our Privacy Policy, and that it is reasonable and acceptable to you. Your acceptance of this Agreement is also your consent to the information practices in our Privacy Policy.
20. We will use our reasonable commercial efforts to keep our Website available on a 24-hour/7-day-a-week basis, subject to downtime for scheduled maintenance, unscheduled maintenance, and system outages. We cannot promise that access to www.TheBrickellian.com will be uninterrupted or available at all times. We assume no liability or responsibility for any delay, interruption, or downtime.
VIRUSES
21. We make reasonable attempts to exclude viruses from www.TheBrickellian.com but cannot ensure that the Website will at all times be free from viruses or other destructive software. You are urged to take appropriate safeguards before accessing www.TheBrickellian.com or downloading anything from our Website. We assume no responsibility for any damages to computer equipment or other property that may result from use of www.TheBrickellian.com or downloading anything from our Website.
22. You may preserve this Agreement in hard-copy form by printing it for your records, and you waive any other requirement that this Agreement be evidenced by a written document.
ELECTRONIC NOTIFICATION
23. To the extent that we may need to contact you, you agree that we may do so via any electronic means, including but not limited to communications posted on the site, electronic mail, or instant messaging.
24. As a User of www.TheBrickellian.com, you hereby expressly acknowledge and agree that such use and involvement is voluntarily undertaken solely at your own risk. You recognize, agree and acknowledge that activities undertaken on www.TheBrickellian.com may be activities which inherently involve certain risks. Under no circumstances will Brickellian™ have any liability whatsoever for any loss, damage or injury alleged and/or sustained by any user of www.TheBrickellian.com from engaging in any activity coordinated through, sponsored by, or affiliated with www.TheBrickellian.com. As a User of www.TheBrickellian.com, you hereby agree that you are solely responsible for any applicable costs, fees and expenses associated with using our Website. By using www.TheBrickellian.com, and in consideration of your usage of our Website, you, on behalf of yourself, and your heirs, designees and assigns, hereby release, waive, discharge and agree not to sue Brickellian™, its officers, directors, agents, representatives, employees and affiliates in their capacities as such, and agree to hold Brickellian™ and each of such persons associated therewith harmless with respect to any and all fees or expenses (including without limitation reasonable attorney fees, both transactional and litigation-related, at all levels), and with respect to any and all allegations, losses, claims, damages, property damage, personal injuries or death to you or to any other individual, whether caused by you or the acts (including the failure to act) of any other persons, events, and/or occurrences.
25. You agree that no joint venture, partnership, employment, fiduciary or agency relationship exists between you and Brickellian™ as a result of this Agreement or your use of www.TheBrickellian.com. The performance of this Agreement by Brickellian™ is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of Brickellian’s right and obligation to comply with governmental, court and law enforcement requests or requirements relating to your use of this Website or information provided to or gathered by us with respect to such use. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, including but not limited to the warranty disclaimers and liability-limitation provisions set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision; and the remainder of this Agreement shall continue in effect.
26. BRICKELLIAN™ MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, AND/OR ACCURACY OF THE INFORMATION CONTAINED ON THIS WEBSITE FOR ANY PURPOSE. ALL SUCH INFORMATION IS PROVIDED “AS IS” AND “WHERE IS” WITHOUT ANY WARRANTIES OF ANY KIND.
27. BRICKELLIAN™ HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THIS WEBSITE AND/OR ANY INFORMATION, CONTAINED ON THIS WEBSITE, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
28. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL BRICKELLIAN™ BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED:
-- WITH THE USE OR PERFORMANCE OF THIS WEBSITE;
-- WITH DELAY OR INABILITY TO USE THIS WEBSITE;
-- WITH THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND
RELATED GRAPHICS OBTAINED THROUGH THIS WEBSITE; OR
-- WITH ANY OTHER CONSEQUENCE ARISING OUT OF THE USE OF THIS WEBSITE, WHETHER BASED ON CONTRACT, TORT, CRIMINAL LAW, STRICT LIABILITY OR OTHERWISE, EVEN IF BRICKELLIAN™ HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
29. DUE TO THE FACT THAT CERTAIN LEGAL JURISDICTIONS DO NOT PERMIT OR RECOGNIZE AN EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT NECESSARILY APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS WEBSITE, OR WITH ANYTHING IN THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS WEBSITE.
30. If, notwithstanding the foregoing, Brickellian™ and/or any third-party provider or distributor should be found liable for any loss or damage which arises out of or is in any way connected with any of the functions or uses of www.TheBrickellian.com and/or its content, the liability of Brickellian™ and/or the third-party providers and distributors shall in no event exceed, in the aggregate, the greater of (a) the subscription fee and service charge (if any) for accessing this Website, or (b) US $100.00. In its sole discretion, in addition to any other rights or remedies available to Brickellian™, and without any liability whatsoever, Brickellian™ at any time and without notice may terminate or restrict your access to all or any component of this Website.
31. Despite our efforts to provide accurate information, www.TheBrickellian.com may contain technical or other mistakes, inaccuracies or typographical errors. As a convenience, our Website may link to other sites that may be of interest to you but are not under Brickellian’s control. These links do not imply endorsement by Brickellian™, and we are not responsible for the availability of or the content contained in any linked site. www.TheBrickellian.com may contain or use technology that provides Brickellian™ and its affiliates with information regarding your use of this Website, or which permits Brickellian™ to audit your compliance with this Agreement via the use of software designed to track and identify use. Please consult Brickellian’s Privacy Policy for further information on Brickellian’s policies for use of your personal information.
32. Brickellian™ reserves the right in its sole and absolute discretion, and with no attendant liability, to deny any user access to this Website, any interactive service herein, or any portion of this Website without notice, and the right to change the terms, conditions, and notices under which www.TheBrickellian.com is offered.
33. This Agreement, and the other legal notice documents contained elsewhere on this Website and incorporated herein by reference, constitute the entire agreement between you and Brickellian™ with respect to Brickellian’s services, www.TheBrickellian.com, and any other relationship between you and Brickellian™, and they supersede any and all prior or contemporaneous communications and proposals, whether electronic, oral or written, with respect to Brickellian™, its services, and/or www.TheBrickellian.com. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Fictitious names of companies, products, people, characters and/or data mentioned herein are not intended to represent any real individual, company, product or event. Any rights not expressly granted to you herein are expressly and exclusively reserved to Brickellian™.
34. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF FLORIDA, U.S.A. USER HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS SITTING IN MIAMI-DADE COUNTY, FLORIDA, U.S.A., IN ALL DISPUTES ARISING OUT OF OR RELATING TO THE USE OF THIS WEBSITE. USE OF THIS WEBSITE IS UNAUTHORIZED IN ANY JURISDICTION THAT DOES NOT GIVE EFFECT TO ALL PROVISIONS OF THESE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION THIS PARAGRAPH.
35. In the event a dispute arises between you and Brickellian™, Brickellian™ and you agree to pursue neutral and cost-effective means of resolving the dispute quickly. Accordingly, you and Brickellian™ agree that any claim or controversy at law or equity that arises out of this Agreement, www.TheBrickellian.com, and/or Brickellian’s other products/services shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, Brickellian™ strongly encourages you to first contact Brickellian™ directly to seek a resolution, and Brickellian™ will consider all reasonable requests to resolve that dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation:
A. Alternative Dispute Resolution. Brickellian™ will consider use of alternative forms of dispute resolution, such as non-binding mediation and/or binding arbitration to be held in or as near as possible to Miami-Dade County, Florida, U.S.A.
B. Court. Alternatively, any claim may be adjudicated by a court of competent jurisdiction located in Miami-Dade County, Florida, U.S.A. User and Brickellian™ agree to submit to the exclusive venue and personal jurisdiction of the state and federal courts located within Miami-Dade County, Florida, U.S.A., with no assertion by either party of any objection to such venue and jurisdiction, including without limitation any objection based on the doctrine of forum non conveniens.
THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO CLAIMS.
36. You agree that: (i) www.TheBrickellian.com Website shall be deemed solely based in the state of Florida, United States of America; and (ii) www.TheBrickellian.com Website shall be deemed a passive website that does not give rise to personal jurisdiction over Brickellian™, either specific or general, in jurisdictions other than Florida, United States of America. This Agreement shall be governed by the internal substantive laws of the State of Florida, without regard to its conflict of laws principles. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, with the surviving provisions being interpreted so as fully as possible to effect the original intentions of the parties to this Agreement. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Brickellian’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. Brickellian™ reserves the right to amend this Agreement at any time and without notice, and it is your responsibility to review this Agreement regularly for any such changes. Your use of www.TheBrickellian.com in any manner following any amendment of this Agreement will signify your assent to and acceptance of its revised terms. YOU AND BRICKELLIAN™ AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO WWW.THEBRICKELLIAN.COM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
23. User agrees that “Brickellian” and “www.TheBrickellian.com” are trademarks of The Brickellian, Inc., a Florida, USA, corporation.
MISCELLANEOUS
24. (a) This Agreement shall be construed, interpreted and enforced in accordance with, and shall be governed by, the laws of the State of Florida, USA, applicable to agreements entered into and to be wholly performed therein, and by applicable United States federal law. In the event of any conflict between any provisions hereof and any applicable laws to the contrary, the latter shall prevail, but this Agreement shall be deemed modified only to the extent necessary to remove such conflicts, and the surviving provisions hereof shall be interpreted so as fully as possible to effect the original intentions of the parties. Only the courts (state and federal) having jurisdiction within Miami-Dade County, Florida, USA, will have jurisdiction of any controversies regarding this Agreement and/or www.TheBrickellian.com; any action or other proceeding which involves such a controversy will be brought in those courts and not elsewhere, and the User hereby waives any objection such User may otherwise have to the jurisdiction and venue of such courts, including without limitation objections raised on the basis of forum non conveniens. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed by the parties. The parties hereto confirm that it is their wish that this Agreement as well as any other documents relating hereto, including notices, be written in the English language (Les parties aux presentes confirment leur volonte que cette le convention de meme que tous les documents y compris y tout avis qui s’y rattache soient rediges en langue anglaise). You further agree that, in any dispute between Brickellian™ and you, Brickellian™ shall be entitled to recover its reasonable attorney fees, legal expert fees, and other legal expenses from you should Brickellian™ emerge as the prevailing party.
(b) This Agreement constitutes the entire agreement of the parties hereto and supersedes all oral and written agreements and understandings made or entered into by the parties hereto prior to the date hereof. No amendment, change or modification of this Agreement shall be valid unless it is accepted by both parties hereto, and any waiver of a failure to perform or of a breach shall not operate to waive any subsequent failure to perform or breach.
(c) The use of the singular in this Agreement shall apply to and mean the plural where appropriate. The use of the masculine or neuter pronoun in this Agreement shall apply to and mean the feminine where appropriate, and vice versa.
(d) The captions appearing at the commencement of certain clauses hereof are descriptive only and for convenience in reference to this Agreement; and should there be any conflict between any such heading and the language of the clause at the head of which it appears, the language of the clause thereof, and not such heading, shall control and govern in the construction of this Agreement.
(e) You acknowledge that a violation or attempted violation of any of this Agreement will cause Brickellian™ such damage as will be irreparable, the exact amount of which would be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that Brickellian™ shall be entitled as a matter of right to an injunction, issued by any court of competent jurisdiction, restraining such violation or attempted violation of these Terms & Conditions of Use by you, or your affiliates, partners, or agents, as well as to recover from you any and all costs and expenses sustained or incurred by Brickellian™ in obtaining such an injunction, including, without limitation, reasonable attorney fees at all levels of litigation. You agree that no bond or other security shall be required in connection with Brickellian’s application for any such injunction.
(f) The parties acknowledge that each has been advised by counsel, and/or been given the opportunity and recommendation to be advised by counsel, during the course of negotiation of this Agreement. This Agreement shall be interpreted without regard to any presumption or rule requiring construction against the party causing this Agreement to be drafted.