FIXMO INC. END-USER LICENSE FOR THE FIXMO TOOLS™ SOFTWARE.
READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR OTHERWISE USING THE FIXMO TOOLS SOFTWARE. BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE FIXMO TOOLS 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 DOWNLOAD, INSTALL OR OTHERWISE USE THE FIXMO TOOLS SOFTWARE, OR REMOVE IT IMMEDIATELY. YOU ALSO AGREE TO REVIEW THIS AGREEMENT PERIODICALLY IN ORDER TO BE AWARE OF MODIFICATIONS TO THIS AGREEMENT WHICH FIXMO INC. MAY MAKE FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF THE FIXMO TOOLS SOFTWARE DEEM YOUR CONCLUSIVE ACCEPTANCE OF ANY MODIFIED AGREEMENT.
YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT, THE TERMS AND CONDITIONS OF WHICH SHALL PREVAIL IN GOVERNING YOUR RIGHTS OF USE. BY CLICKING THE "ACCEPT" BUTTON AND EITHER INSTALLING, DOWNLOADING OR USING THE FIXMO TOOLS SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT CLICK "ACCEPT" AND YOU MUST NOT DOWNLOAD, INSTALL OR USE THE FIXMO TOOLS SOFTWARE.
This Agreement is an agreement defining Your rights as the end-user. It is not an agreement for sale. Fixmo Inc. ("Fixmo") owns the copy of the Fixmo Tools Software provided hereunder and any other copy that You are authorized to make pursuant to this Agreement, including without limitation, all underlying trade secrets, confidential information, intellectual and proprietary rights contained therein, are owned exclusively by Fixmo. Any documentation that is provided with the Fixmo Tools Software is incorporated into and forms a part of this Agreement.
1. DEFINITIONS
i. "Agreement" refers to these end user terms and conditions.
ii. "Device" means Your mobile handset or device.
iii. "Fixmo Tools Software" or "Software" is a cellular telephone / mobile phone handset software product developed by Fixmo that may be distributed by Fixmo directly or a third party distribution agent.
iv. "Fixmo" refers to Fixmo Inc.
v. "Site" refers to and includes web sites available at or through various domains used, owned and operated by Fixmo from time to time (and subject to change, addition, deletion or substitution from time to time in Fixmo.s sole discretion), including but not limited to fixmo.com, together with any and all sub-domains, directories, sub-directories, files, folders and related URL’s.
vi. "Third party distribution agent" means an authorized distributor of the Software.
vii."You" refers to the end-user.
2. LICENSE
Subject to the terms and conditions herein, Fixmo grants You a personal, revocable, non-exclusive, non-transferable license to install and use one copy of the Software on a single registered Device to be used only for the purposes described in the Software product documentation which accompanies the Software or which is available online at Fixmo.s Site. You are permitted to make a backup copy for Your own use. You may not use or allow use of the Software other than for Your own internal or personal purposes. You may not sell, resell, lease, sublease, rent, redistribute or otherwise transfer or assign the Software. Failure to do either shall constitute the expiry and termination of this Agreement pursuant to Section 9. This Agreement does not imply any rights to future upgrades or updates of the Software. However, if Fixmo does provide You with any upgrades or updates to the Software either directly or through Your third party distribution agent, such upgrades or updates shall be subject to the terms and conditions of this Agreement or any agreement which accompanies such upgrades or updates, and may be subject to additional payments. You may not print, copy, reverse engineer, make derivative works from, reproduce, distribute, modify or in any other manner duplicate the Software, in whole or in part.
3. EXPORT REGULATIONS
All Software and technical data delivered under this Agreement are subject to US export control laws, and may be subject to export or import regulations in other countries, including without limitation, Canada and the United States. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to You.
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. Any grants 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 and Fixmo Tools brands and logos.
5. DISCLAIMER OF WARRANTIES AND CONDITIONS
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-MISSAPROPRIATION 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.
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, 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), PRODUCT 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 OR ACCESS TO THE SOFTWARE, OR ANY BREACH OF THIS AGREEMENT BY YOU. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
8. GENERAL
i. Information and Privacy. Fixmo agrees to protect Your privacy in accordance with Fixmo’s privacy policy located at https://fixmo.com/privacy-policy. Fixmo reserves the right to modify its privacy policy from time to time in its discretion. If personal information is disclosed to the third party distribution agent to facilitate the provision of the Sofware to You, the third party distribution agent’s privacy policy will be applicable.
ii. 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.
iii. 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.
iv. Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, and the federal laws of Canada applicable therein, without regard to conflicts of law provisions, and you hereby consent to the exclusive jurisdiction of the courts in the Province of Ontario.
v. Assignment. Fixmo may assign this Agreement without notice to You. You shall not assign this Agreement without the prior written consent of Fixmo (such consent may be withheld at Fixmo.s discretion).
vi. 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 Suite 600, 69 Yonge Street, Toronto, Ontario, Canada M5E 1K3. 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.
vii. Entire Agreement. This Agreement constitutes the entire agreement between the parties respecting the Fixmo Tools Software and there are no provisions, representations or collateral agreements between the parties other than as set out in this Agreement. Fixmo reserves the right to make changes to this Agreement by providing You with reasonable notice of the change by either email (as specified in Section 8(vi) above) or by posting notice of the change at https://fixmo.com/terms-of-use. If You continue to use the Fixmo Tools Software after notice of the change has been given, You shall be deemed to have accepted this change.
viii. Language. It is the express will of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigées en anglais.
Copyright © 2012 Fixmo Inc. All rights reserved.