BRIXMARK TERMS OF SERVICE
UPDATED AUGUST 9, 2011
1. Your Acceptance of these Terms
1.1 By visiting the Brixmark.com website or using any Brixmark products, software, data feeds, and services provided to you on, from, or through the Brixmark.com website (collectively the "Service"), you agree to these Terms of Service (the “Terms”) and you acknowledge that you have reviewed and accept our privacy notice, found at http://www.brixmark.com/terms and incorporated herein by reference. If you do not agree to any of these terms or our privacy notice you may not use the Service. The Service includes all aspects of Brixmark, including all products, software applications, data and services offered via the Brixmark.com website (the “Site”), as well as other features that may be added to the Service. The name Brixmark, the Brixmark trademark, and the Brixmark.com website are owned by Brixmark, Inc. (the “Company”), all rights reserved. These Terms apply to all users of the Service.
1.2 You also may accept the Terms by clicking to accept or agree to the Terms where this option is made available to you, when you register for a Brixmark account or when you create a Brixmark user login and password. Once you use the Service, we will treat your use as acceptance of these Terms from that point forward.
1.3 We may, in our sole discretion, modify or revise these Terms at any time, by posting a revised version of the Terms to our website. Although we may attempt to notify you when major changes are made, you should periodically review the most up-to-date version of the Terms.
1.4 You agree to be bound by such modifications or revisions. Nothing in these Terms shall be deemed to confer any third-party rights or benefits.
1.5 We may also offer other third party services that are governed by different terms of service. You should at all times be aware of and read any other such terms of service. Brixmark hereby specifically disclaims responsibility for your failure to read any third party terms of service.
2. The Service
2.1 The Brixmark Service provides a private network where grape growers, vintners, consultants, and other businesses operating within the wine & vineyard industry can access and share information in a productive, mutually beneficial way.
2.2 Users of the Service will be able to enter data about their grape growers, wineries, vineyards, grape contracts, and harvest maturity (the users’ “Brixmark Data”) to the Site, for the mutual benefit of various other parties who are given access to the Brixmark Data. Some users may be given read-only access to the Brixmark Data, others may be given more complete access, including the ability to augment, edit or otherwise modify it. Brixmark does not change users’ Brixmark Data without authorization; Users supply and control access to the Brixmark Data.
2.3 We reserve the right to discontinue any aspect of the Service at any time or to change any of the aspects or features of the Service at any time, without notice to you.
2.5 The Service is provided "as-is" and "as available". Brixmark reserves the right to schedule routine maintenance on our servers and to periodically discontinue use of the Service for upgrades. Maintenance also may affect the availability of service for short periods of time. We disclaim liability for server downtime and Brixmark provides no warranty or guarantee of use or access to the Service or that the Service will be uninterrupted or error free or that any files available for downloading through the Site will be free of viruses or similar contamination or destructive features. You expressly agree that the entire risk as to the quality and performance of the Site is on you, the user.
3. Authorized Users; Setting up Accounts; Users, Owners and Groups; Cancellation
3.1 Who Can Use Brixmark. In order to establish a Brixmark user account, you must be 18 years old or older, and you must not be otherwise barred under the laws of the United States or other applicable jurisdiction to use the Service. Void where prohibited. By providing information to us through the account registration page for new users or through any other part of our site, you represent to Brixmark that you are over 18 years old.
3.2 Creating a Brixmark User Account – all Users. In order to access the Service, you will have to create a Brixmark account, obtain a User login and establish a password. You must have an active login and password in order to use Brixmark. You may obtain and activate a login and password by accessing http://app.brixmark.com/users/sign_up. Once you create an account, you will be able to access only those portions of the Site that you have been authorized to access by Brixmark User Groups (see below).
3.3 No Use of Other Accounts. You may never use another person’s account without permission. When creating your account, you must provide accurate and complete information. All Users are solely responsible for the activity that occurs on their accounts, and you must keep your account password secure. You must notify the Company immediately of any breach of security or unauthorized use of your account. Brixmark will not be liable for losses caused by any unauthorized use of your account, and you may be liable for the losses of the Company or others due to such unauthorized use.
3.4 Updating Registration data. You promise to maintain and promptly update your registration data to keep it true, accurate, and current. If you provide any information that is untrue, inaccurate, not current or incomplete, or if the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Brixmark has the right to suspend or terminate your Brixmark account and the Company may refuse any and all current or future use of the site (or any portion thereof) by you.
3.5 Deactivating your account. We reserve the right to temporarily deactivate or permanently remove any Brixmark account at any time, in our sole and absolute discretion, for any reason, including, but without limitation, the following: lack of use, use inconsistent with these Terms, illegal use, and network or server abuse.
3.6 Brixmark Groups. A Brixmark Group (or "Group") is created by a business (for example, a winery or a grape grower) in order to manage information about that business’s vineyards or other operations, using the Service. All Brixmark users are members of one or more Groups and are authorized to access data and perform actions on the Service in accordance with their assigned user roles, i.e., whether they are owners, admins, samplers or reporters with respect to a Group (as further described below).
3.7 Vineyards. A Group may set up and control a vineyard on the Service. A vineyard in Brixmark corresponds to an actual vineyard property that grows wine grapes. A Group that owns a vineyard (the "Vineyard Owner") controls which other Groups ("Connected Groups") are authorized to connect to its Vineyard and thereby access, share and enter data concerning that vineyard (“Vineyard Data”). Vineyard Data entered by the Vineyard Owner is accessible (but may not be modified) by a Connected Group. Vineyard Data entered by a Connected Group is accessible (but may not be modified) by the Vineyard Owner. A Connected Group may access (but may not modify) data entered by other Connected Groups who have agreed to share their data as long as the Connected Group agrees to share its data with other Connected Groups. An Owner of a Group may change its sharing option by editing group settings. Members of the connected Group may download and access Brixmark Data pertaining to a vineyard owned by another Group only for their internal business purposes and may not share such Brixmark Data with any third parties.
3.8 User Roles. Each Brixmark user will have one of the following Roles for each Group in which it is a member:
(i) Owner. A Group Owner is a Brixmark User who initially creates a new Group or is later assigned the Owner role. The Owner can delete the Group. The Owner can create vineyards and can create or upload Brixmark Data pertaining to the Group and the vineyards and manages and maintains that Brixmark Data. The Owner is responsible for payment for the Service with respect to the Owner’s Group. The Owner names other individual users who are members of the Group and identifies them as Admins, Samplers or Reporters, with permission to access a Group’s Brixmark Data. The Owner can remove or change such authorizations for individual Users. The Owner may add, edit and delete data pertaining to his Group (such as information about a particular vineyard). There is only one Owner of a Group. Only a Group’s Owner or an admin of that Group can authorize other Users to access that Group’s Brixmark Data.
(ii) Admin. A Group Owner may designate another user as the Administrator of the Group, who will have the same rights and privileges as the Owner but will not be responsible for payment of service fees for the Group and will not be able to delete the Group.
(iii) Sampler. The Group Owner may designate other Users as “Samplers” to view, add and edit data pertaining to sample data owned by or connected with that Group.
(iv) Reporter. The Group Owner may designate other Users as “Reporters” to view data pertaining to Vineyards that may be owned by or connected with that Group. Reporters may not add or edit data.
BRIXMARK DOES NOT REVIEW OR CONTROL AN OWNER’S DECISION TO AUTHORIZE ADMINS, SAMPLERS OR REPORTS AND THEREBY TO GRANT PERMISSION TO A THIRD PARTY TO ACCESS THE OWNER’S GROUP’S BRIXMARK DATA. AN OWNER AUTHORIZES OTHER USERS IN ITS SOLE AND COMPLETE DISCRETION.
3.9 Account Fees. Brixmark charges a monthly service fee for each Group, as published on the Brixmark Site, and which may be changed from time to time by Brixmark on notice to Owners. See the current pricing schedule for Group accounts here: http://www.brixmark.com/pricing. A Group Owner will be responsible for paying fees for each Group that Owner has created. Current fees for Group accounts are described on the Site. Individual Users may maintain their User accounts free of charge.
You may cancel your Brixmark account at any time by sending a cancellation request to: firstname.lastname@example.org. Cancellation of individual User accounts will be effective within one business day of receipt of such requests.
Owners may cancel a Brixmark Group at any time on 30 days’ written notice to Brixmark, by sending a cancellation request to email@example.com.
4. Ownership of Content
4.1 All content accessible on the Service is the property of the Company or its affiliates, or of the Group that uploaded that content (including but not limited to Brixmark Data) to the Site. You have no ownership rights in any of the content you may access through Brixmark other than the Brixmark Data you upload to the site. If you upload or enter Brixmark Data on behalf of your Brixmark Group, employer or other party, you represent that you have been given authorization to do so, and such content may be owned by that party.
4.2 The Service, the Site, the Brixmark logo, trademarks and service marks, and the technology incorporated into the Brixmark.com website all are owned by the Company. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, services, and all other elements of the Service (the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any content that is provided and owned by users, all Materials contained on the Service are the property of the Company or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to the Company or its affiliates and/or third-party licensors. Except as expressly authorized by the Company, you agree not to sell, license, distribute, copy, modify, publicly display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. The Company reserves all rights not expressly granted in these Terms.
5. Your Limited License to use the Service and Restrictions on Your Use of the Service
5.1 The Company grants you a limited, non-exclusive, non-transferable license to access and use the Service. This license is contingent upon your payment of any applicable subscription fees (if you are a Group Owner) and your compliance with any other terms and conditions applicable to you. Any violation by you of the provisions contained in these Terms may result in the immediate termination of your right to use the Service. The Company reserves all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. ANY USE OF THE SERVICE NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.
5.2 You may not:
(a) use the Service to reproduce copyrighted materials without permission;
(b) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, features that prevent or restrict use or copying of any content accessible through Service, or features that enforce limitations on the use of the Service;
(c) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
(d) modify, adapt, translate or create derivative works based upon or alter in any way theService or the videos viewed through the Service or any part thereof;
(e) use any robot, spider, scraper, or other automated means to access the Service to aggregate or customize our features and our users' info, or for any other purpose or to bypass any measures Brixmark may use to prevent or restrict access to the Service;
(f) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(g) modify, interfere with, or remove any “powered by Brixmark” messages or similar messages, or any third party advertisements or links appearing at the bottom of a Brixmark webpage;
(h) give your password to any other person; (i) misappropriate, copy, distribute or otherwise use Brixmark Data posted by another User for any reason without the consent of such User;
(i) falsify Brixmark Data in any way
6. Your Ownership of Your Brixmark Data; Access by Other Users; Our Limited Rights to Use Brixmark Data
6.1 You retain all ownership rights in and to all Brixmark Data that you upload into the Site and that may be shared with other users. Brixmark will treat your Brixmark Data as confidential information and we will not use it without your consent except as may be reasonably necessary or useful to facilitate operation of the Service, to enhance your use of the Service, to develop additional features for the Service, to perform internal tracking, system monitoring and Service upgrades and improvements, and to analyze the extent to which you use the Service and the ways in which you use the Service.
6.2 You grant Brixmark a perpetual, fully-paid, nonexclusive, and non-assignable license
(i) to use, display, reproduce and distribute through the site your Brixmark Data as reasonably necessary in order for Brixmark to provide the Service under these Terms; and
(ii) to aggregate the Brixmark Data with Brixmark Data provided by other users and to license such aggregated and anonymized data to third parties as we may determine.
6.3 YOU ALSO AUTHORIZE OTHER USERS TO ACCESS YOUR BRIXMARK DATA WHEN ANOTHER GROUP BECOMES CONNECTED TO YOUR GROUP. When you authorize other Groups to access Brixmark Data that you upload, or that has been uploaded to the Service by members of your Group, Other users may have access to your Brixmark Data. We do not control access by members of Groups that have been connected to your Group. Please note that users who are members of a Group may change over time, once a Group has been connected to your Vineyard, or a Vineyard to your group, the individual users who may access your Brixmark Data will change over time. We provide no notice to you of the changing membership of other Groups, and we can thus provide no notification to you when individual users become able to access your Brixmark Data.
7. DISCLAIMER OF WARRANTY
YOU EXPRESSLY AGREE THAT YOUR OF THE BRIXMARK.COM WEBSITE IS AT YOUR SOLE RISK. NEITHER THE COMPANY OR ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, MERCHANTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO (I) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, OR (II) THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE SITE, OR (III) THE CONFIDENTIALITY OF YOUR DATA THAT HAS BEEN UPLOADED TO THE BRIXMARK.COM SITE.
THE BRIXMARK.COM SITE IS MADE ACCESSIBLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF TITLE NON INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
YOU AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE COMPANY, ITS EMPLOYEES, AGENTS, AND REPRESENTATIVES AGAINST CLAIM, SUIT, ACTION, OR ADMINISTRATIVE PROCEEDING BROUGHT AGAINST BRIXMARK, ITS EMPLOYEES, AGENTS, AND REPRESENTATIVES TO THE EXTENT SAID CLAIM, SUIT, ACTION, OR ADMINISTRATIVE PROCEEDING ARISES OUT OF, OR IS RELATED TO YOUR CONTENT, YOUR USE OF OR CONNECTION TO THE SERVICE, YOUR VIOLATION OF THESE TERMS, OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER. WITHOUT LIMITATION TO THE FOREGOING, THE INDEMNIFICATION AGREEMENT HEREUNDER EXTENDS TO, AMONG OTHER THINGS, ANY CLAIM, SUIT, ACTION, OR ADMINISTRATIVE PROCEEDING ARISING OUT OF: (A) YOUR ACCESS OR USE OF THE SERVICE; (B) ACCESS OR USE OF THE SERVICE BY SOMEONE ELSE USING YOUR COMPUTER OR ACCOUNT; (C) A VIOLATION OF THESE TERMS BY YOU OR ANYONE USING YOUR COMPUTER OR USER ACCOUNT. THIS INDEMNIFICATION AGREEMENT APPLIES TO ANY CLAIM, SUIT, ACTION, OR ADMINISTRATIVE PROCEEDING THAT IS DIRECTLY OR INDIRECTLY RELATED TO THE SERVICE, INCLUDING BY WAY OF ILLUSTRATION A CLAIM, SUIT, ACTION, OR ADMINISTRATIVE PROCEEDING THAT YOUR USE OR ACCESS OR ANOTHER PERSON'S USE OR ACCESS OF YOUR COMPUTER OR USER ACCOUNT INFRINGES ANY COPYRIGHT, TRADEMARK, SERVICE MARK, PATENT, TRADE SECRET, RIGHT OF PUBLICITY, OR OTHER PROPRIETARY RIGHT UNDER ANY U.S., INTERNATIONAL, FOREIGN, OR STATE LAW. AS ANOTHER EXAMPLE, WHICH IS NOT TO BE CONSTRUED AS LIMITING THE SCOPE OF THE INDEMNIFICATION PROVISION, THIS INDEMNIFICATION AGREEMENT APPLIES TO ANY CLAIM, SUIT, OR ACTION WHERE YOUR USE OR ACCESS TO THE SERVICE IS IN ANY WAY DEFAMATORY, SLANDEROUS, LIBELOUS, OR OTHERWISE INJURIOUS TO A THIRD PARTY. YOU AGREE TO PAY ANY AND ALL COSTS, DAMAGES AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEY'S FEES AND COSTS AWARDED OR INCURRED BY OR IN CONNECTION WITH ANY SUCH CLAIM, SUIT, ACTION, OR ADMINISTRATIVE PROCEEDING.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL THE COMPANY BE LIABLE TO YOU FOR INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION OR MISAPPROPRIATION OF BUSINESS DATA BY THIRD PARITES OR ANY OTHER PECUNIARY LOSS) EVEN IF BIXMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BRIXMARK OR OTHERS WILL CREATE A WARRANTY AND NEITHER YOU NOR ANY THIRD PARTY MAY RELY ON ANY SUCH INFORMATION OR ADVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.
10. Governing Law; Entire Agreement; Termination.
Office: (707) 595-0659