FIXMO INC. END-USER LICENSE FOR THE FIXMO SENTINEL™ AND FIXMO SAFEZONE™ SOFTWARE
(U. S. Patent Application No. 11/999,050)
ATTENTION: THIS IS A LICENSE, NOT A SALE. THE SOFTWARE IS PROVIDED UNDER A LICENSE THAT DEFINES WHAT YOU MAY DO WITH THE SOFTWARE AND CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES.
IF YOU OBTAINED THE SOFTWARE IN THE UNITED STATES, “FIXMO” SHALL MEAN FIXMO U.S., INC. IF YOU OBTAINED THE SOFTWARE OUTSIDE OF THE UNITED STATES, “FIXMO” SHALL MEAN FIXMO, INC. “AFFILIATES” OF FIXMO SHALL MEAN ALL CORPORATIONS OR OTHER ENTITIES CONTROLLED DIRECTLY OR INDIRECTLY BY FIXMO, INC.
BY CLICKING THROUGH THE “I AGREE” BOX BELOW, IF ANY, OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE AND ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT CLICK THROUGH THE “I AGREE” BOX BELOW, IF ANY, OR DOWNLOAD, INSTALL OR OTHERWISE USE THE SOFTWARE AND REMOVE IT IMMEDIATELY FROM YOUR DEVICES AND SERVERS.
THE SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES.
This Agreement shall be effective on the date that the Software is first downloaded or installed on Your Device(s) or Server(s) (the “Effective Date”). Fixmo and You agree that the following terms and conditions will apply to the Software provided to You under this Agreement. In the event of any inconsistency between this Agreement and any Order Confirmation, the terms of the Order Confirmation shall prevail to the extent of such inconsistency.
1. DEFINITIONS
i. “Agreement” refers to this end user license agreement.
ii. “Order Confirmation” means, (i) if You have accepted, in writing, a written quotation issued by Fixmo or its distributors, resellers, or other business partners (collectively “Authorized Partner(s)”), such accepted quotation, or (ii) if You have not accepted, in writing, a written quotation issued by Fixmo or an Authorized Partner , an invoice issued by Fixmo or an Authorized Partner.
iii. “Software” means the software made available by Fixmo or an Authorized Partner and either (a) described in an Order Confirmation, if any, or (b) if not described in an Order Confirmation, installed by, or on behalf of, You on a Device or Server. In each case, the “Software” will comprise all of the contents of the files, disk(s), CD-ROM(s) or other media (including electronic media) with which this Agreement is provided or that can be accessed after acceptance of this Agreement, or such contents as are hosted by Fixmo or Authorized Partners, including but not limited to (x) Fixmo or third party computer information or software, including binary and/or bytecode software programs; (y) related explanatory materials in printed, electronic, or online form (“Documentation”); and (z) upgrades, modified or subsequent versions and updates (collectively “Updates”), and software, if any, licensed to You by Fixmo or an Authorized Partner as part of a maintenance contract or service subscription.
iv. “Use” or “Using” means to access, install, download, copy or otherwise benefit from using the Software.
v. “Device” means a single wireless handheld device that is owned and controlled by You.
vi. “Server” means a server that is owned and controlled by You.
vii. “You” refers to you (if you are an individual acting in Your own capacity) or to the entity on whose behalf you are acting (if you are an individual acting on behalf of a corporation or other legal entity).
2. LICENSE
(a) Grant. Subject to the terms and conditions herein, and subject to the payment by You of all applicable fees to Fixmo or its Authorized Partner, Fixmo grants You a limited, revocable, non- exclusive, non-transferable license, only for the purposes described in the Documentation, to, as applicable: (i) Use the Software in machine-readable form on any number of Servers; and (ii) Use the Software in machine-readable form on a single Device or such other number of Devices as may be set out in an Order Confirmation.
(b) Restrictions. You may not sell, resell, lease, sublease, rent, redistribute or otherwise transfer or assign the Software or any rights to Use the Software. This Agreement does not imply any rights to future Updates. However, if Fixmo does provide You with any Updates, such Updates shall be subject to the terms and conditions of this Agreement or any agreement which accompanies such Updates, and may be subject to additional payments. You may not print, copy, reverse engineer, reverse translate, make derivative works from, reproduce, distribute, modify or in any other manner duplicate the Software, in whole or in part, decompile or in any other manner decode the Software except to the extent that the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary. You may not Use the Software on a Device or Server that You do not own or control or on more than one Device unless otherwise set out in an Order Confirmation.
(c) Carrier Charges. You must provide at Your own expense the equipment, Internet connections or Devices and/or service plans required to Use the Software, if any. You acknowledge that when You Use the Software, Your wireless carrier may charge You fees for data, messaging, and/or other wireless access. YOU, AND NOT FIXMO, ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO USE THE SOFTWARE ON YOUR SERVERS OR DEVICES.
(d) Third Party Software. Some third party materials included in the Software may be subject to other terms and conditions, which typically will be found in the “README” file in the Software. Your right to Use any such third party materials shall be limited to the Use necessary to operate the Software as permitted by this Agreement.
(e) US Government End Users. The Software is a “commercial item” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in FAR 12.212, and is provided to the U.S. Government only as a commercial end item. Government end users acquire the rights set out in this Agreement for the Software consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR 12.212; or (ii) for acquisition by or on behalf of the Department of Defense, the terms set forth in DFARS 227.7202. Use of the Software and related documentation is further restricted by the terms and conditions of this Agreement.
(f) Open Source Software. The Software may be distributed with open source software (i.e., software licensed or sublicensed under the GNU General Public License or other open source software licenses) for which the applicable open source software license may also require that open source software source code be made available to those receiving only executable binary versions of such open source software. If the source code for any such open source software is not provided with the Software, then You may receive it by contacting Fixmo at info@fixmo.com. If any open source software licenses require Fixmo to provide You with rights to use, copy or modify any open source software program that are broader than the rights granted in this license, then such rights shall take precedence over the rights and restrictions herein.
(g) Termination. This Agreement will commence on the Effective Date and will continue unless (i) You fail to comply with any of the limitations or other requirements described herein, or (ii) You fail to renew the Agreement before the expiry of the term specified in an Order Confirmation, if any. Upon any termination or expiration of this Agreement, You must cease Use of the Software and destroy all copies of the Software and the Documentation.
(h) Personal Data. You acknowledge that in the course of Using the Software, You may collect personally identifiable information about Your employees and authorized users of Your Devices. You agree that You shall be solely responsible for ensuring that any such collection will comply with all applicable laws, including those relating to privacy rights.
3. RESTRICTIONS
(a) Export Restrictions. The Software and related information may be subject to export and import restrictions. By Using the Software, You are representing and warranting that You are not located in, under the control of, or are a national or resident of any country to which the export of the Software or related information would be prohibited by the laws or regulations of the United States or Canada. You are also representing and warranting that You are not an entity or individual to whom the export of the Software or related information would be prohibited by the laws or regulations of the United States or Canada. You shall comply with the export laws and regulations of the United States and Canada that are applicable to the Software and related information and You shall comply with any local laws in Your jurisdiction that may impact Your right to export, import, or Use the Software or related information, and You represent and warrant that You have complied with any such applicable laws or regulations. The Software shall not be Used for any purposes prohibited by export laws or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import or Use of the Software or related information.
(b) Third Party Beneficiaries. You are notified that there may be third party beneficiaries to this Agreement. To the extent that this Agreement contains provisions that relate to: (i) the Use by You of certain Software in which such third parties have an interest, or (ii) services provided by affiliates of Fixmo, licensors, subcontractors of distributors of Fixmo, such provisions are made expressly for the benefit of such third party beneficiaries and are enforceable by such third party beneficiaries in addition to being enforceable by Fixmo.
4. INTELLECTUAL PROPERTY
You do not acquire under this Agreement any intellectual property or other proprietary rights, including without limitation, any patents, inventions, improvements, designs, trademarks, including any applications for same, copyright, rights in any confidential information or trade-secrets, in or relating in any way to the Software, other than the rights to Use the Software granted pursuant to section 2 of this Agreement. Any rights not expressly granted herein are reserved. The Software is only licensed to You as expressly set out herein, and it and all associated documentation or materials are protected by Canadian, U.S. and international copyright and patent laws and international treaty provisions. You hereby acknowledge that Fixmo owns the trademarks, copyrights and other proprietary rights to the Fixmo brands, logos and marks and all other brands, logos and marks used by Fixmo to market the Software.
5. DISCLAIMER OF WARRANTIES AND CONDITIONS
(a) THE SOFTWARE IS PROVIDED TO YOU STRICTLY ON AN “AS IS”, “WHERE IS” AND “AS AVAILABLE” BASIS. FIXMO DOES NOT MAKE, AND YOU DO NOT RECEIVE ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE. YOU ACKNOWLEDGE AND AGREE THAT FIXMO DOES NOT REPRESENT OR WARRANT, OR GIVE ANY CONDITION THAT: (I) THE USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, DEVICE, PHONE, COMPUTER, SYSTEM OR DATA, (II) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) ANY DATA WILL BE ACCURATE OR RELIABLE, (IV) ERRORS OR DEFECTS WILL BE CORRECTED, OR, (V) THE SOFTWARE, OR THE COMPUTERS AND SYSTEMS THAT MAKE THE SOFTWARE AVAILABLE, ARE FREE OF VIRUSES, WORMS, TROJANS, MALICIOUS CODE, SPYWARE, MALWARE OR OTHER HARMFUL COMPONENTS OF ANY KIND. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM A COURSE OF CUSTOM OR TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OR CONDITION OF COMPLIANCE WITH ANY DESCRIPTION, OR IMPLIED WARRANTY OR CONDITION OF NON- INFRINGEMENT, VIOLATION AND/OR NON-MISAPROPRIATION OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY FIXMO TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
(b) High Risk Activities. The Software is not fault tolerant and is not designed or intended for Use in hazardous environments requiring fail safe performances including, without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury or severe physical or property damage (collectively, “High Risk Activities”). Fixmo expressly disclaims any express or implied warranty for High Risk Activities.
6. LIMITATION OF LIABILITY
NEITHER FIXMO NOR ITS SUPPLIERS, LICENSORS, CONTRACTORS OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SOFTWARE SHALL BE LIABLE TO YOU OR ANYONE CLAIMING THROUGH YOU FOR ANY LOSS OF PROFITS OR REVENUE, LOSS OR INACCURACY OF DATA, FAILURE TO REALIZE EXPECTED RESULTS, REVENUES OR SAVINGS, ECONOMIC LOSS, LOSS OF DATA, OR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT), RESULTING FROM YOUR ACCESS TO, RELIANCE ON, OR USE OF, OR INABILITY TO ACCESS OR USE THE SOFTWARE, WHETHER BASED ON OR IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), SOFTWARE LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT FIXMO KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR HAS BEEN ADVISED OF SUCH POSSIBILITY, OR SUCH POSSIBILITY IS REASONABLY FORESEEABLE. FIXMO SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR IN PART BY THE SOFTWARE. YOU AGREE THAT, IN ALL CASES, ANY CLAIM BY YOU FOR DAMAGES AGAINST FIXMO ARISING FROM ANY ACCESS TO, USE OF OR RELIANCE ON THE SOFTWARE OR THE SITE, OR OTHERWISE ARISING UNDER THIS AGREEMENT, SHALL BE LIMITED TO YOUR PROVABLE DIRECT DAMAGES IN THE MAXIMUM AGGREGATE SUM OF THE AMOUNT PAID OR PAYABLE BY YOU FOR THE SOFTWARE. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
7. INDEMNIFICATION OF FIXMO
YOU SHALL INDEMNIFY, DEFEND AND FOREVER HOLD FIXMO, AND FIXMO’S LICENSORS, SUPPLIERS, CONTRACTORS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES, SUITS AND EXPENSES (INCLUDING LAWYERS’ FEES AND COSTS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SOFTWARE, OR ANY BREACH OF THIS AGREEMENT BY YOU. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
8. AUDIT
Upon Fixmo’s written request, no more than once per calendar year, You shall furnish Fixmo with a signed certification listing the locations and models of all Devices and Servers on which You Use the Software. If You are not a U.S. Government end user, then Fixmo may, not more than once per year and at its own expense, may audit Your compliance with the requirements of this Agreement. Any such audit shall be conducted during regular business hours and shall not unreasonably interfere with Your business activities. If an audit reveals that You have underpaid license fees to Fixmo, then You shall be invoiced for such underpaid fees at Fixmo’s then-current prices for such licenses, plus twenty-five percent (25%) plus all costs incurred by Fixmo in connection with such audit.
9. GENERAL
(a) Force Majeure. Notwithstanding any other provision of this Agreement, neither party shall be deemed in default of this Agreement for failure to fulfill its obligations when due to causes beyond its reasonable control (including
without limitation, if a third party distribution agent ceases to provide airtime, internet or other similar services to Fixmo at all or on commercially reasonable terms). This provision shall not be construed as excusing non-performance of any obligation by either party to make payment to the other party under this Agreement.
(b) Waiver, Survival and Severability. Waiver by either party of any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default. The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof by either or both parties shall so survive the completion of performance, cancellation or termination of this Agreement. If a provision of this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions and the rights and obligations of each party shall be construed and enforced accordingly.
(c) Governing Law. This Agreement shall be governed by the laws of the State of New York, and the federal laws of United States of America applicable therein, without regard to conflicts of law provisions, and You hereby consent to the exclusive jurisdiction of the courts in the State of New York. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The Uniform Computer Information Act does not apply to this Agreement.
(d) Assignment. Fixmo may assign this Agreement and its rights hereunder without notice to You. You shall not assign this Agreement or any rights hereunder, or delegate or subcontract any obligations hereunder.
(e) Notices. All notices or other communications under this Agreement shall be deemed to have been duly given when made in writing and delivered in person, by courier or deposited in the mail, return receipt requested and addressed to You at the billing address supplied to Fixmo or the third party distribution agent by You, or addressed to Fixmo at info@fixmo.com. In addition to the foregoing, Fixmo may, at its option, give You any notice under this Agreement by email or posting communications concerning this Agreement on its Site. Notice to You by email shall be deemed to have been duly given when transmitted to an email address furnished by You to Fixmo.
(f) Entire Agreement. This Agreement, together with the Order Confirmation, constitutes the entire agreement between the parties respecting the Software and there are no provisions, representations or collateral agreements between the parties other than as set out in this Agreement and the Order Confirmation. If You are using the Software in Your capacity as an employee of an entity that has purchased an enterprise license from Fixmo, then additional terms may apply.
UPDATED AS OF APRIL 2012.
Copyright © 2012 Fixmo Inc. All rights reserved.