Fixd TERMS OF SERVICE ("TOS" or "Agreement")

Updated: 22 May 2018

IMPORTANT-READ CAREFULLY

This TOS is a legal agreement between You (either an individual or a single entity) and 3Floorsup Pty Ltd (“Us”, “We” or “Fixd”) for the products and services outlined herein, including any computer software and associated support and training services, and may include online or electronic documentation. By accessing and using any part of The Services delivered under this TOS, You agree to be bound by the terms outlined herein. YOU ARE LEGALLY PERMITTED TO USE AND ACCESS THIS SERVICE AND YOUR EMPLOYER HAS GRANTED YOU THE AUTHORITY TO ENTER INTO THIS AGREEMENT, FOR AND ON ITS BEHALF. If you do not agree to the terms listed herein, promptly advise us, and all access will be disabled.

In addition to this TOS, please refer to our other policies on privacy & cookies:

1. CONTRACTING PARTY

This Agreement is being formed by the “Account Holder” (“You”) and 3Floorsup Pty Ltd (referred to hereinafter as "Fixd") and its successors and assigns, as the sole contracting party liable for any obligations to You under this Agreement, unless We stipulate to You otherwise, in which case any reference to “Fixd” shall only be considered a reference to that contracting party that We have stipulate.

2. DESCRIPTION OF SERVICES

The systems, skills, methodologies, knowledge, trade secrets, know-how, and computer software for the gathering, storing, manipulating, displaying and reporting of data, support and training rendered, as well as an application programming interface ("API") being licensed under this agreement all form part of what is referred to herein as "The Service".

3. ACCOUNT HOLDER

You are engaging Fixd to provide The Service under this TOS. By engaging Fixd to provide The Service, you represent and warrant to Fixd that: You are at least sixteen years of age; all registration information you provide is truthful and accurate and that you will maintain this information in an accurate form; you are legally permitted to use and access The Service and your employer has expressly granted you permission to enter into this agreement, for and on its behalf.

4. ENTIRE AGREEMENT

This TOS constitutes the entire Agreement between Fixd and You unless both parties have executed an addendum to this TOS that stipulates any variations or additional terms. If no addendum has been executed, then there are no extraneous Agreements, representations or undertakings either express or implied, which affect this Agreement. If no addendum has been executed then this TOS and the items herein set forth the entire obligations of Fixd to You and vice-versa, and supersedes all prior discussions, representations and amendments of understanding of every kind and nature between the parties.

5. YOUR CONTENT

Account Holder Content ("AHC") includes, without limitation, all copyrights, trademarks, patents, trade secrets, operational maintenance/servicing data, non-public information uploaded to The Service by the Account Holder or otherwise disclosed by the Account Holder to Fixd. Nothing in this TOS shall be construed to grant Fixd any ownership, right in, or license to AHC.

You grant Fixd a non-exclusive, worldwide, royalty-free license to edit, modify, adapt, translate, schedule, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use the AHC as necessary to render The Services to You under this TOS. Fixd may use AHC to advance the products and services being offered by Fixd, provided that Fixd at all times maintains the confidentiality obligations set forth in this TOS and the AHC is used by in a way that does not identify You, your representatives, suppliers or your customers.

6. FIXD CONTENT

Fixd’s products or services, shall remain the sole and exclusive property of Fixd or its suppliers, including, without limitation, all copyrights, trademarks, patents, database rights, trade secrets, site maps, site notes, programming code, data, information or any form of coding script, site maps, database schemas developed or provided by Fixd or its suppliers under this TOS, and any know-how, methodologies and processes related to and any other proprietary rights inherent therein and appurtenant thereto.

Fixd hereby grants You a worldwide, limited, revocable, non-exclusive, license solely to make use of The Service on the Host Server. You shall have ongoing, continued and uninterrupted rights to this license, so long as this Agreement is in effect. Fixd hereby reserves for itself all rights in and to The Service not expressly granted to You under this license.

You may not reverse engineer, decompile, or disassemble The Service and provide access to or assist in any way any company or person who intends to reverse engineer, decompile, or disassemble any part of The Service.

You may not rent or lease any part of The Service, nor may You on-rent, on-lease, or on-license this Agreement or any part of The Service to another party.

So long as this Agreement remains valid, You will have rights to any and all upgrades, updates or releases for The Service. Any upgrades will be automatically deployed to the Host Server. You will always operate using the latest version of The Service.

You may not use any part of The Service to form any part of a commercially distributed software application, product or service.

You do not have any rights to use The Service that are not expressly stipulated in this TOS. All other uses that fall outside of the scope of the TOS must receive prior written permission from Fixd.

7. FEES & PAYMENT

Fixd reserves the right to charge for access ("Fees") to The Service and is licensed to You on a one-person-per-user-account basis.

The Account Holder will pay Fixd a License Fee at the rate of the Account Holder’s selected Plan plus any selected add-on options as set forth on the then-current Plans list visible on the Fixd website. The Account Holder may alter its selected Plan at any time and changes will be prorated, or come into effect at the commencement of the next billing cycle for offline payments.

Qualifying Users: Any individual user that accesses, has been invited to access or that currently has a permission status that would permit access to your AHC (even if they do not actually choose to access your AHC). In practice, this is any user other than those with the 'Contractor' permission that are either 'active' or 'pending'.

Automated credit card payments: An invoice for the Access Fee will be issued each month commencing on the day that you commit to a paid Plan. Additional invoices for Qualifying Users and credits for Qualifying Users will be issued during the billing period on a prorated basis.

Offline payments: An invoice for the Access Fee will be issued each month in advance, commencing on the day that you commit to a paid Plan and include the total number of Qualifying Users for the preceding month.

Fixd will continue invoicing You monthly until this Agreement is terminated in accordance with this Agreement. Fixd does not refund fees, so any changes, including cancellation, must be performed prior to end of a monthly billing cycle.

Fixd reserves the right to change its price list and modify the features that are offered as part of The Service and these changes will be notified to you via email or posted on the Fixd website. Current Plans, fees and features can be viewed at here.

8. FAIR USE POLICY

Fixd is licensed to You on a one-person-per-user-account basis. Fixd uses technologies designed to identify individual users and reserves the right to charge for an identified user if multiple persons are utilising a single registered user account.

Data: Included total cumulative data storage by You is limited to 1GB per paid user, unless otherwise agreed Excess data storage fees may apply.

API Calls: Number of paid users X 1,000 API calls per month, otherwise excess fees may be charged.

9. CONFIDENTIALITY

The Service is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Account Holder must treat The Service like any other copyrighted material. The Account Holder may make a reasonable number of copies of the printed materials accompanying The Service for internal training and reference purposes. The Service is licensed, not sold, despite any reference to "purchase" or "sale" in this TOS or any invoice or purchase order now or in the future. Confidential Information shall mean: All the AHC; any information that is generally understood to be confidential in nature or designated as such by either party, but shall not include information that:

  1. Is independently developed by the receiving party without access to the other party’s Confidential Information;
  2. Becomes publicly known through no breach of this agreement by the receiving party;
  3. Has been rightfully received from a third party authorised to make such a disclosure;
  4. Has been approved for release in writing by the disclosing party, or;
  5. Is required to be disclosed by a legal mechanism or ruling.

The confidentiality obligations of each party and its representatives shall survive the expiration or termination of this Agreement. Each party shall use the same degree of care to protect the Confidential Information of the other party from unauthorized use or disclosure as it uses to protect its own information of a similar nature, but in no event less than reasonable care.

10. HOST SERVER

The Service will at all times be located on and accessed from the Host Server as provided and administered by Fixd.

11. WARRANTIES

Each Party represents and warrants that such party has the power and authority to enter into and perform its obligations under this Agreement.

Fixd warrants that (i) The Service will be diligently operated and maintained free from defect or disruption and be further developed in line with advancements to the technological platform, (ii) The Service will perform substantially in accordance with both the accompanying written materials and any demonstrations of, or published documentation regarding The Service made by Fixd from time to time (iii) Fixd and its representatives shall provide services hereunder in a professional and workmanlike manner consistent with applicable industry standards and laws and regulations using reasonable care and skill;

Fixd warrants that it has incorporated, and will maintain throughout the term, security technologies and measures reasonably designed to be consistent with industry standards to prevent unauthorized access to or use of its computer systems (including the Host Servers), network devices, and/or the data stored or processed through the Host Servers; To the maximum extent permitted by applicable law, Fixd and the Account Holder and their respective suppliers disclaim all other warranties, either express or implied including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, with regard to The Service. This limited warranty gives each party specific legal rights. Each party may have others, which vary from state/jurisdiction to state/jurisdiction.

12. LIABILITY.

Notwithstanding anything else contained in this Agreement, each party agrees to indemnify and hold the other party and its affiliates and agents harmless from and against any losses costs, liabilities and expenses, including legal representation fees arising out of a breach of the representations, warranties and covenants made by such herein, or out of such party’s negligence or willful misconduct.

You agree to indemnify and hold Fixd and its affiliates and agents harmless from and against any losses, costs, liabilities and expenses, including legal representation fees, arising out of the AHC.

Fixd shall not be liable to You, nor shall You be liable to Fixd, for loss of profits or contracts or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever.

You shall indemnify Fixd and keep Fixd fully and effectively indemnified on demand against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or willful misconduct of yours, or your employees, agents or sub-contractors;

13. FORCE MAJEURE.

Except for the payment of Fees by You, if the performance of any part of this TOS by either party is prevented, hindered, delayed or otherwise made impracticable by reason of causes beyond the control of a party, including, as applicable, any flood, fire, judicial or governmental action, labour disputes, technological failure or act of God ("Force Majeure Event"), that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes. provided that the party could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all matters known to it before the occurrence of the Force Majeure Event and all relevant factors, were commercially reasonably for the party to take.

14. ASSIGNABILITY.

You may assign this Agreement, in whole or in part to any entity which controls, or is controlled by, or is under common control with the assigning party, so long as the assigning party remains liable under this Agreement, or any entity resulting from any acquisition, merger or consolidation with the assigning party, or. Fixd may assign this Agreement, in whole or in part, to any party, so long it receives from the assignee a written guarantee of diligent performance of obligations contained in this Agreement.

15. TERMINATION.

Without prejudice to any other rights, Fixd may terminate provision of The Service to You if you fail to comply with this TOS and do not cure any such material breach of this Agreement within 30 days of being provided with notice of such breach by Fixd. Should You fail to pay the Fees by the due date, Fixd may suspend provision of The Service or restrict access to The Service until such time as the Fees are paid.

You may terminate your Account if Fixd fails to comply in all material respects with the terms and conditions of this TOS and has not cured any such material breach of this Agreement within 30 days of being provided with notice of such breach by You. Without prejudice to any other rights, You may also terminate this Agreement for convenience at any time. Following any request of termination by You, You will retain access to The Service until the end of your current billing cycle, at which point The Service will be terminated, and all AHC will be purged.

16. SEVERABILITY

If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this Agreement shall continue in full force and effect without said provision; provided, however, that no such severability shall be effective if it materially changes the economic benefit of the Agreement to either party.

17. CONTACT

You can contact Fixd at any time by writing support@fixd.io.

c/- 4876 Santa Monica Ave #165
San Diego, California 92107
USA

Ph. +1 415 738 2942