PLEASE READ ALL THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE CLICKING THE “I AGREE” BUTTON OR USING ANY SOFTWARE APPLICATION OF FIXIONAL, INC. BY CLICKING THE “I AGREE” BUTTON OR USING ANY SOFTWARE APPLICATION OF FIXIONAL, INC., YOU AGREE TO BE BOUND BY, AND TO BECOME A PARTY TO, THIS AGREEMENT. TO THE EXTENT YOU HAVE QUESTIONS REGARDING ANY SOFTWARE APPLICATION OR WEBSITE OFFERED BY FIXIONAL, INC. OR THIS AGREEMENT, THEY SHOULD BE ADDRESSED TO FIXIONAL, INC. AT INFO@FIXIONAL.CO.
This Platform Services Agreement (the “Agreement”) is a legal agreement between You (as defined below) and Fixional, Inc., with a place of business at PO Box 1153 San Carlos, CA 94070, (“Fixional”) relating to and governing Your access to and use of the Fixional Materials (as defined below) and the services provided in connection with the Fixional Materials (the “Services”). For purposes of this Agreement, “you” and “your” shall mean either the individual person or the legal entity that is accessing and/or using the Fixional Materials.
Fixional may at any time, at its sole discretion, update and revise this Agreement by posting an amended Agreement on its website, located at https://fixional.co/ (the “Website”). Any changes to this Agreement will be effective immediately upon posting on the Website. Please check the Website periodically for changes to the Agreement. You will be able to determine if this Agreement has been changed since your previous visit by viewing the "Last Updated" information that appears at the top of this Agreement. Your use of the Fixional Materials following the posting of any changes constitutes your acceptance of those changes. Fixional shall not have any obligation under this Agreement to provide any updates, corrections, changes, enhancements, or modifications to the Fixional Materials or Services (collectively, “Updates”) or to otherwise correct any errors or defects in the Fixional Materials or Services.
a. “Fixional Materials” means the Platform, documentation and Fixional Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Fixional in connection with the Services or otherwise comprise or relate to the Services or Fixional Systems. For the avoidance of doubt, Fixional Materials include Resultant Data and any information, data or other content derived from Fixional’s monitoring of your access to or use of the Services, but do not include User Data.
b. “Fixional Systems” means the information technology infrastructure used by or on behalf of Fixional in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Fixional or through the use of third-party services.
c. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
d. “Resultant Data” means all information, data and other content that is derived by or through the Services from processing User Data and is sufficiently different from such User Data that such User Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
e. “Platform” means the online platform and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, platform and websites that Fixional provides remote access to and use of as part of the Services.
f. “User Data” means any and all information, data and other content, in any form or medium, that is entered or uploaded by you to the Platform. User Data does not include Resultant Data.
Last updated: September 2, 2019
2. Access to Services and Fixional Materials. Subject to your compliance with this Agreement, Fixional shall make available to you, in accordance with the terms and conditions of this Agreement, the Services and Fixional Materials for your use strictly in accordance with the specifications and documentation (if any) provided and the terms of this Agreement. Access to the Services and Fixional Materials requires valid account log-in credentials, provided during the registration process.
3. Restrictions. You are responsible for keeping your account login credentials confidential and not sharing them with unauthorized users. You acknowledge and agree that the Fixional Materials and Services may contain content provided, owned, and/or created by a third party, including, without limitation, content which may be publicly available through other sources (collectively “Third Party Content”). Fixional does not provide any warranty as to the accuracy or completeness of such Third Party Content or as to whether use of such Third Party Content infringes any third party’s intellectual property or other proprietary rights.
4. User Conduct. You agree that you shall not, and shall not permit any third party to, access or use the Fixional Materials or Services except as expressly authorized in this Agreement. For purposes of clarity, and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits:
a. copy, modify or create derivative works or improvements of the Services or Fixional Materials;
b. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Fixional Materials, in whole or in part;
c. remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Fixional Materials, including any copy thereof;
d. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Fixional Materials to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
e. bypass or breach any security device or protection used by the Services or Fixional Materials;
f. input, upload, transmit or otherwise provide to or through the Services or Fixional Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, worm, malware or other malicious computer code;
g. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Fixional Systems or Fixional’s provision of services to any third party, in whole or in part;
h. access or use the Services or Fixional Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Fixional user), or that violates any applicable law;
i. access or use the Services or Fixional Materials for purposes of competitive analysis of the Services or Fixional Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage;
j. orotherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 2.Fixional is not responsible or liable for any delay or failure of performance caused, in whole or in part, by or otherwise related to your delay in performing, or failing to perform, any of your obligations under this Agreement.
5. Ownership. Use of the Fixional Materials and/or Services confers no title or ownership interest in the Fixional Materials, Services, Resultant Data or any Fixional trademarks, service marks, logos or other indicia affixed to or otherwise appearing in conjunction with the Fixional Materials or Services (collectively, the “Fixional Marks”). As between the parties, Fixional owns all right, title and interest in and to all copyright, patent, trademark and any other Intellectual Property Rights, whether or not registrable, in the Fixional Materials, Services, Fixional Marks, any component thereof and any and all materials related thereto whether or not developed by Fixional, and all generalized knowledge, skill, know-how and expertise relating to any such information. You are not authorized to use any Fixional Marks for any purpose. References to any names, marks, products or services of third parties do not constitute or imply Fixional’s endorsement, sponsorship or recommendation of the third party or any related information, product or service.
6. User Data and Resultant Data.
a. In connection with Fixional’s provision of the Services, you hereby grant to Fixional a limited right and license to use the User Data as necessary to provide the Services. As between the parties, you shall own all right, title and interest in and to the User Data, and nothing herein shall be construed as granting any ownership right therein. User Data shall be maintained on Fixional’s Systems solely for use with your account and will be permanently deleted only when you expressly direct such deletion through your account.
b. Fixional shall solely and exclusively own, and have the right to use and transfer in any manner, any and all Resultant Data, and nothing herein shall be construed as granting any ownership rights in or to the Resultant Data. In additional, Fixional shall solely and exclusively own, and have the right to use and transfer in any manner, any and all oral or written comments and any other reports, materials, information, idea, concepts and know-how provided by you to Fixional regarding the Services and/or Fixional Materials.
c. You acknowledge and agree that Fixional may disclose (as permitted by law) User Data that you Transmit for purposes that include, but are not limited to: (a) enforcing this Agreement; (b) complying with any laws, regulations or rules of any federal, state or local government or agency; (c) responding to claims that any User Data violates the rights of third parties; or (d) protecting the rights or property of Fixional, its customers or the public.
7. Fees. You shall pay Fixional the applicable fees for the Services set forth on the Website (“Fees”). Fixional uses a third-party payment provider (“Payment Provider”) to process payment of the Fees. By submitting your payment information to or through Payment Provider, you authorize Fixional to charge the applicable payment method for the Fees and any related charges. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. Payment Provider may have terms and conditions that govern your submission of payment through its services. Please refer to such terms and conditions to determine your rights and liabilities as it relates to your use of Payment Provider’s services.
8. Warranty Disclaimer. Fixional acts solely as an operator of the Services and does not warrant that the use or operation of the Fixional Materials or Services will be uninterrupted or error-free. You acknowledge and agree that the Platform and Services may be subject to scheduled downtime or service downtime due to circumstances beyond Fixional’s reasonable control. Use of the Fixional Materials and Services and any reliance upon Fixional Materials or Services, including any action taken or not taken by you or any other person because of such use or reliance, is at your sole risk. You agree that Fixional assumes no responsibility for any content you submit, upload, create or make available through the Fixional Materials or Services. You acknowledge and agree that your access to the Fixional Materials and Services rely on network connectivity over which Fixional may have no control. As between the parties, your wireless communications network connectivity are your responsibility. The Services do not replace the need for you to maintain regular data backups or redundant data archives. FIXIONAL EXPRESSLY ASSUMES NO RESPONSIBILITY WITH REGARD TO WIRELESS COMMUNICATIONS NETWORK CONNECTIVITY AND ANY ERROR, INTERRUPTION, OR FAILURE THAT MAY RESULT THEREFROM. FIXIONAL HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF USER DATA. Without limiting the foregoing, you agree that Fixional is not responsible for the accuracy of the User Data, and it is your responsibility to confirm the accuracy of such information.
9. Indemnification. You agree to indemnify, defend and hold harmless Fixional and its officers, employees, agents, affiliates, successors and assigns from and against all damages, costs and expenses, including, without limitation, interest, penalties and reasonable attorneys' fees and disbursements arising from or relating to any of the following: (a) your breach of this Agreement; (b) your negligence, willful misconduct or violation of law relating in any way to your use of the Fixional Materials and/or Services; and (c) your use of the Fixional Materials or Services for any purpose other than the purpose for which they were intended. Furthermore, you agree that Fixional assumes no responsibility for the User Data you input and/or transmit via the Fixional Materials and Services.
10. LIMITATIONS ON LIABILITY. FIXIONAL SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED AS A RESULT OF USE OF OR INABILITY TO USE THE FIXIONAL MATERIALS AND/OR SERVICES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL FIXIONAL BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER, RELIANCE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF PREVIOUSLY INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT FIXIONAL IS NEVERTHELESS FOUND LIABLE FOR DAMAGES FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF FIXIONAL WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO FIXIONAL FOR YOUR USE OF THE FIXIONAL MATERIALS AND SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE APPLICABLE CLAIM.
11. No Third Party Beneficiaries. You and Fixional agree that you do not intend any third party beneficiaries to this Agreement.
12. Termination of Agreement. Fixional may terminate this Agreement immediately, with or without notice if (a) you breach, appear likely to breach in Fixional’s sole discretion, or threaten to breach any of the provisions of this Agreement or (b) Fixional ceases to support the Fixional Materials, which Fixional may do in its sole discretion. Upon any such termination or expiration, you must immediately discontinue all use of the Fixional Materials and Services. You acknowledge that, upon termination or expiration, User Data will no longer be accessible via the Fixional Materials. The provisions of this Agreement (other than your right to use the Fixional Materials and Services) shall survive termination or expiration of this Agreement.
13. DISCLAIMER OF WARRANTIES. THE FIXIONAL MATERIALS AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. FIXIONAL DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. FIXIONAL MAKES NO WARRANTY THAT (I) THE FIXIONAL MATERIALS OR SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR MATERIALS WILL BE ACCURATE, UP TO DATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED THROUGH THE SERVICES WILL MEET THE YOUR EXPECTATIONS, (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR (VI) THAT THE FIXIONAL MATERIALS, THE CONTENT OR E-MAILS SENT FROM OR ON BEHALF OF FIXIONAL ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIMEBOMBS OR OTHER HARMFUL COMPONENTS;
b. ANY MATERIAL OBTAINED THROUGH THE USE OF THE FIXIONAL MATERIALS OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER OR MOBILE DEVICE SYSTEMS OR LOSS OF DATA THAT RESULTS FROM SUCH MATERIAL; AND
c. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FIXIONAL OR THROUGH OR FROM THE FIXIONAL MATERIALS OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
14. General Terms. This Agreement constitutes the entire agreement among you and Fixional with reference to access to and use of the Fixional Materials and Services, and supersedes any prior agreement between or among the parties regarding its subject matter. This Agreement is governed by the laws of the State of North Carolina without regard to its conflict of law provisions. The state and federal courts of Wake County, North Carolina shall have exclusive jurisdiction over all disputes relating to this Agreement. The remedies at law of any party in the event of default or impending default by any other party in the performance of any terms of this Agreement may not be adequate, and such terms of this Agreement may be specifically enforced by a decree for specific performance, injunction or other appropriate equitable relief without the posting of any bond. You may not delegate, assignor transfer (whether or not by operation of law) this Agreement or any part of it without Fixional’s prior written consent. Fixional may freely transfer, assign or delegate all or any portion of this Agreement, and any rights and duties hereunder. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of any heirs, successors and permitted assignees of the parties. In the event any provision of this Agreement is found to be unenforceable or invalid, such provision shall be modified so as to make it valid and enforceable and as so modified the entire Agreement shall remain in full force and effect. No failure to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude further exercise of that or any other rights hereunder.