These TERMS OF SERVICE (“Terms”) form a legally binding agreement between Fyxt Inc. (“Fyxt,” “we,” or “us”) and you (“you”).
Fyxt offers a web-based platform providing workflow management solution for use in real estate property and asset management (the “Platform”).
You are hereby entering into this Agreement with Fyxt (“Terms”) providing You with access to certain functionality of the Platform (the “Offerings”). You have been authorized to access the Offerings on the Platform (“Account”).
These Terms govern your access to the Offerings and your use of the services (“Services”) and any data, information, or content (“Content”) provided through the Offerings as an authorized user (“User”).
PLEASE CAREFULLY READ THESE TERMS. YOUR ACCESS TO AND USE OF THE OFFERINGS, SERVICES, AND CONTENT ARE CONDITIONED UPON YOUR AGREEMENT TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS, FYXT IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO THE OFFERINGS, SERVICES, OR CONTENT. BY ACCEPTING THESE TERMS, OR BY ACCESSING OR USING THE OFFERINGS, SERVICES, OR CONTENT, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS AND AGREE TO BE BOUND BY THESE TERMS.
- MODIFICATIONS TO THESE TERMS. Fyxt may, in its sole discretion, modify these Terms from time to time. We will use commercially reasonable efforts to provide notice of any material modifications to these Terms. Notice may be provided to you directly or to all Users through the Platform. Unless we make a change for legal or administrative reasons, any modification will be effective 10 days following posting of the modified version of these Terms to the Platform. Your continued access to the Offerings and use of the Services and Content following that date constitutes your acceptance of, and agreement to be bound by, those modified Terms. You should check the date of the Terms and review any changes since the last version.
- TERM. These Terms are effective when you first agree to these Terms or first access or use the Offerings, Services, or Content. The Terms continue until the termination, unless terminated earlier as specified herein.
- ACCESS. Subject to your compliance with these Terms, Fyxt will provide you with a limited, revocable, non-sublicensable, non-exclusive right to access and use the Offerings and Services.
- ACCOUNT. In order to access the Offerings, you may be required to establish your own account on the Platform (“Account”). Your Account will establish you as a User on the Platform. Approval of your Account will be at the sole discretion of Fyxt. Each Account is personal in nature and you may establish an Account only for your personal use. You will only access the Offerings, Services, and Content through your own Account. You may not distribute or provide your Account or the username or password for your Account to a third party or allow a third party to access your Account. When creating your Account, you must provide accurate, truthful, and complete information. You agree to maintain and promptly update your Account information to keep it accurate, truthful, and complete. You may not: (1) select or use a username of another person or with the intent to impersonate that person; and (2) use a username that Fyxt, in its sole discretion, deems offensive. You are solely responsible for safeguarding the username and password for your Account and for all use of the Offerings, Services, and Content that occurs on your Account, including any liabilities and damages incurred through the use of your Account. We cannot and will not be liable for any loss or damage arising from any unauthorized use of your Account, but you will be liable for any losses sustained by Fyxt or others due to such unauthorized use. You must notify Fyxt immediately at AccountSecurity@fyxt.com of any breach of security or unauthorized use of your Account.
- CONDITIONS OF USE. You agree that the Offerings, including all software, hardware, and other technology used by or on behalf of Fyxt to provide the Offerings (collectively, “Technology”) constitute the valuable Intellectual Property Rights (as defined below) of Fyxt and its licensors. As an express condition on the rights granted herein, you will not, and will not permit or authorize any third party to: (1) use the Offerings in any unlawful or illegal manner or for any unlawful, misleading, malicious, or discriminatory purpose; (2) use the Offerings in a manner that infringes, misappropriates, or otherwise violates the intellectual property or other rights of Fyxt or any third party; (3) take or permit any action that could damage, disable, overburden, or impair the Offerings or the Technology; (4) use the Offerings to transmit unsolicited marketing communications, promotions or advertisements, or otherwise send “spam;” (5) upload or expose the Offerings or Technology to any viruses or malicious code; (6) modify, adapt, alter, translate, or create derivative works based on any portion of the Offerings or Technology; (7) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the Offerings or Technology; (8) circumvent or overcome (or attempt to circumvent or overcome) any security or technological protection measures, including those intended to restrict access to any portion of the Offerings or Technology; (9) interfere with or disrupt in any manner the integrity, performance, operation, or hosting of the Offerings or Technology, or attempt to gain unauthorized access to any portion thereof; (10) use automated scripts to collect information from or otherwise interact with the Offerings or Technology without our prior permission; (11) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Offerings or Technology; or (12) permit or allow any unauthorized third party to access or use of the Offerings or the Technology.
- YOUR INFORMATION.
- As between Fyxt and you, you retain all right, title, and interest in and to the data, information, and other content you submit to the Offerings or otherwise make available through the Services (“Your Information”). You grant to Fyxt all rights in Your Information necessary or required for Fyxt access, use, process, and disclose Your Information: (a) for purposes of providing the Offerings and Services and enabling the operation of the Platform; (b) to perform its obligations and exercise and enforce its rights under these Terms; and (c) as otherwise required by applicable law. You will obtain and maintain all consents, permissions, and rights necessary for: (i) you to provide, disclose, and otherwise make available Your Information through the Offerings; and (ii) all use and processing of Your Information as permitted or required by this Agreement.
- You are solely responsible for Your Information, including the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Information. Fyxt is not responsible or liable for any deletion or loss of any of Your Information. Fyxt is under no obligation to review any of Your Information for accuracy or potential liability. You assume all risks associated with the use of any of Your Information in connection with any Offerings or Services, including any reliance on Your Information or the accuracy or completeness thereof. You acknowledge and agree that by submitting or otherwise making Your Information available through any Offering or Services, you are allowing others to access and use Your Information and to associate it with you.
- You will ensure that none of Your Information or the use of Your Information through the Offerings or Services: (a) violates these Terms or any applicable laws; (b) is libelous, defamatory, obscene, abusive, pornographic or contains nudity, threatening, hate speech, or an invasion of privacy; (c) constitutes an infringement or misappropriation of the Intellectual Property Rights or other rights of any third party; (d) incites violence or contains graphic or gratuitous violence; (e) is illegal in any way or advocate illegal activity; (f) is an advertisement or solicitation of funds, goods, or services; (g) is false, deceptive, misleading, or inaccurate; (h) bullies, intimidates, or harasses any other User; or (i) could be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement. Fyxt may remove any of Your Information from the Offerings or Services at any time, with or without notice, if we reasonably believe that it violates these Terms or our other policies to prevent damage, injury, or harm to Fyxt, the Offerings, or any User, or any other third party.
- OWNERSHIP. All right, title and interest in and to the Offerings and Technology, and all Services and Content, and all modifications, configurations, improvements, or enhancements thereof or thereto, all Intellectual Property Rights therein and relating thereto, are and will remain the exclusive property of Fyxt and its licensors. The names and logos of Fyxt and those of its providers and licensors are trademarks of Fyxt or its third-party providers and licensors, as applicable, and nothing in these Terms gives you a right to use the Fyxt name, or any of the Fyxt trademarks, logos, domain names, and other distinctive brand features. Except as expressly stated in these Terms, Fyxt grants you no rights or licenses (whether by implication, estoppel, or otherwise) and all rights are expressly reserved by Fyxt. For the purposes of this Agreement, “Intellectual Property Rights” means any and all intellectual property and proprietary rights throughout the world, including all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, rights protecting data and databases, and contract rights.
- FEEDBACK. Any feedback, comments, or suggestions relating to the use, operation, performance, functionality, or features of the Offerings, Services, and Content (“Feedback”) you may provide to Fyxt is entirely voluntary. Fyxt will be free to use any Feedback as we see fit for any purpose and without any without notice, payment, or other obligation to you. All use of any Feedback will be at Fyxt’ sole discretion.
- MONITORING. Fyxt reserves the right, but does not have any obligation, to monitor the Offerings and Services for any purpose, including to confirm compliance with these Terms or for potentially illegal activities. Fyxt may inform appropriate law enforcement authorities of any activity on or through the Offerings or Services at our sole discretion. Nothing in these Terms obligates Fyxt to monitor the Offerings or any Services.
- THIRD PARTY OFFERINGS. The Platform and Offerings may enable you to integrate, connect, and you’re your Account with and to third party websites, products, services, and other offerings of vendors and service providers and other third parties (“Third Party Offerings”). Fyxt is not responsible for any Third Party Offering that you integrate, connect, or link with or to your Account or any of Your Information or other data, information, content, or communications exchanged with any Third Party Offering. Third Party Offerings may be subject to separate terms and conditions. Any such separate terms and conditions are solely between you and the third party providing the Third Party Offering and you are solely responsible for compliance with those terms and conditions. You are solely responsible for and bear all risks associated with all access and use of all such Third Party Offerings. You will obtain at your own expense all rights, permissions, and consents from any third parties necessary to access and use any Third Party Offerings. By integrating, connecting, or linking with or to a Third Party Offering, you acknowledge and agree that you have obtained all such rights and/or consents.
- YOUR WARRANTY. You represent and warrant to Fyxt that:; (1) you have the legal right and authority to enter into these Terms and that these Terms form a binding legal obligation on you; and (2) you have and will maintain all right necessary to perform your obligations under these Terms and to grant all rights and licenses included in these Terms.
- You acknowledge that the Offerings provide general purpose online services and are not specifically designed to facilitate compliance with any specific law, rule, or regulation. Your use of the Offerings and any Services and Content in compliance with any specific law, rule, or regulation applicable to you is your sole responsibility. Fyxt is not responsible for enabling your compliance with any law, rule, or regulation or for your failure to comply. You represent and warrant to Fyxt that your use of and access to the Offerings, Services, and Content will comply with all applicable laws, rules, and regulations and will not cause Fyxt itself to violate any applicable laws, rules, and regulations.
- Without limiting the foregoing, you acknowledge that the Offerings and Services are not designed to comply with laws, rules, or regulations applicable to: (i) social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (ii) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder), or similar information under other comparable laws; or (iii) financial account numbers (including credit or debit card numbers, or any related security codes or passwords), bank account numbers, or similar information (“Restricted Information”). You will not provide through any Offering or Services, or otherwise make available to Fyxt, any Restricted Information.
- DISCLAIMER. If you are dissatisfied with the Offerings or any Services or Content, your sole and exclusive remedy is to discontinue using the Offerings, which you may do at any time. You understand and agree that Fyxt shall not be responsible or liable for any loss or damage resulting from your use of the Offerings or any Services or Content. THE OFFERINGS ARE PROVIDED BY FYXT AND ITS LICENSORS “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND AND FYXT DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND COVENANTS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THESE TERMS, THE OFFERINGS, OR ANY TECHNOLOGY, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FYXT OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESS CONFIRMED IN WRITING BY FYXT AS AN AMENDMENT TO THESE TERMS.
- LIMITATION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL FYXT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, DAMAGES OR OTHER LOSSES OF ANY KIND, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF THE USE OR INABILITY TO USE OR ACCESS ANY PART OF THE OFFERINGS, SERVICES, OR CONTENT, INCLUDING ANY LOST, CORRUPTED OR ALTERED DATA, INFORMATION, OR CONTENT, LOSS OF USE OF DATA, INFORMATION, OR CONTENT, RECOVERY OF DATA, INFORMATION, OR CONTENT, OR LOSS OR INTERRUPTION OF BUSINESS OR PROFITS, EVEN IF FYXT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE.
IF DESPITE THE FOREGOING, FYXT IS FOUND TO HAVE LIABILITY UNDER THESE TERMS, IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF FYXT RELATING TO THESE TERMS, THE OFFERINGS, OR ANY SERVICES OR CONTENT, EXCEED $100.
IN STATES WHERE A LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, FYXT’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH STATES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
- You may cease using the Offerings and any Services or Content at any time. If you desire for your Account to be deactivated, you may contact Fyxt as indicated on the Platform.
- These Terms may be terminated by Fyxt, in its sole discretion, at any time with or without notice to you.
- In addition, Fyxt may suspend your access to the Offerings and any Services or Content following any actual or suspected breach of these Terms or as deemed reasonably necessary by Fyxt to prevent damage, injury, or harm to Fyxt, the Offerings, or any User, or any other third party.
- Upon any termination: (i) all rights granted to you under these Terms will end; (ii) Fyxt may delete or deactivate your Account and cease providing you with access to the Offerings; (iii) you will cease all use of and access to the Offerings and all Services and Content; and (iv) Fyxt will be under no further obligation to retain any of Your Information and may remove and discard any of Your Information from the Offerings. You agree not to attempt further use of any Offering or the Services upon termination. Upon the request of Fyxt, you will certify in writing to your compliance with the terms of this Section. The relevant portions of any Sections which by their nature survive termination of these Terms will survive the termination of these Terms for any reason.
- INDEMNITY. You agree to defend, indemnify and hold harmless Fyxt (and its officers, directors, employees, contractors, agents, and licensors) from and against any and all damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) resulting from or arising out of or on account of (a) your use of or access to the Offerings or any Services or Content, except due to the negligence of Fyxt, (b) any of Your Information or any access thereto or use thereof as permitted under this Agreement, (c) your breach of these Terms, or (d) your negligent act or omission or your willful misconduct.
- CONFIDENTIALITY. For purposes of this Agreement, “Confidential Information” means the Technology and all documentation, information, data, and materials relating to the Offerings and Services, regardless of the form thereof, including all copies and extracts thereof. You will not disclose any Confidential Information to any third party without Fyxt’s prior written consent. You may disclose Confidential Information only to those of employees and contractors who have a need to know the Confidential Information for purposes of using the Services, provided those employees are bound by an obligation of confidentiality at least as protective of the Confidential Information as the terms of these Terms. You will treat all Confidential Information with the same degree of care as you treat your own confidential information which, in no event, will be less than reasonable care. You will not utilize the Confidential Information other than as expressly permitted in this Agreement.
- APPLICATIONS. If you access the Offerings through our mobile application, you use of that application is also subject to the terms of any terms and conditions accompanying that application. In the event of any conflict between this Agreement and such terms, these Terms will control with respect to the Offerings and any other agreement accompanying any mobile application will control with respect to that application.
- EQUITABLE RELIEF. You agree that due to the unique nature of the Offerings there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow you or third parties to unfairly compete with Fyxt resulting in irreparable harm to Fyxt, and therefore, that upon any such breach of this Agreement or threat thereof, you will not oppose any attempt by Fyxt to obtain, in addition to whatever remedies it may have at law, an injunction or other appropriate equitable relief without making any additional showing of irreparable harm.
- FORCE MAJEURE. Fyxt will not be responsible for failure or delay in the performance of any obligation under this Agreement to the extent such failure or delay is due to acts of God or governmental authority, war, terrorism, strikes, boycotts, quarantine, pandemic, labor disputes, fire or other loss of facilities, accident, or any other event beyond its control. Fyxt will use commercially reasonable efforts to notify you of any such event.
- EXPORT. The Offerings and Services are subject to U.S. export control laws and regulations and may be subject to export or import regulations in other countries. You agree to strictly comply 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.
- CHOICE OF LAW. These Terms will be governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to any applicable principles of conflicts of laws. Subject to the Section titled “Arbitration,” any legal action, suit, or proceeding arising out of or relating to this Agreement or the breach thereof may be instituted by either party solely in the federal or state courts located in [Los Angeles], California, U.S.A. Each party hereby submits to the personal jurisdiction of such court and waives any right each might otherwise have to claim lack of personal jurisdiction or forum non conveniens.
- ARBITRATION. The parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to these Terms, including the validity, binding effect, interpretation, performance, breach or termination of these Terms (each, a “Dispute”) through discussion between the parties. If any Dispute cannot be resolved through negotiations between the parties, either party may submit such Dispute for final settlement through binding arbitration to be administered by the American Arbitration Association (or any successor thereto), in accordance with the American Arbitration Association’s Commercial Arbitration Rules (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator, selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by Fyxt in Orange County, California, U.S.A. The arbitrator will apply the laws of the State of California, U.S.A. to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend this Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrator will require the non-prevailing party to pay the prevailing party’s costs, fees and expenses (including attorneys’ fees). Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
- NOTICES. Unless otherwise specified in these Terms, you will provide any notices required or allowed under these Terms to Fyxt by postal mail to the address for Fyxt listed on the Platform. Fyxt may provide you with any notices required or allowed under this Agreement by sending you an email at any email address you provide to Fyxt in connection with your Account, provided that in the case of any notice applicable both to you and other Users of the Platform, Fyxt may instead provide such notice by posting it on the Platform. Notices provided to Fyxt will be deemed given when actually received by Fyxt. Notice provided to you will be deemed given 24 hours after posting to the Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
- GENERAL. These Terms will exclusively govern your access to and use of the Offerings, Content and Services, and are the complete and exclusive understanding and agreement between the parties. Unless otherwise agreed in writing, these Terms supersede any oral or written proposal, agreement or other communication between the parties, regarding your access to and use of the Offerings, Content and Services. Except as expressly set forth in these Terms, these Terms may be amended or modified only by a writing signed by both parties. The preprinted terms of a purchase order or any other similar document will not apply to or modify these Terms. All waivers by Fyxt under these Terms must be in writing or later acknowledged by Fyxt in writing. The failure of Fyxt to enforce any right or provision of these Terms will not be deemed to be a waiver of such right or provision. If any provision of these Terms shall be found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed removed to the extent necessary to comply with applicable Law, replaced by a provision that closely approximates the original intent and economic effect of the original to the extent consistent with applicable Law, and the remaining provision will remain in full force and effect. In any dispute relating to these Terms, the prevailing party will be entitled to recover its reasonable expenses and attorneys’ fees from the other party. You may not assign or otherwise transfer these Terms or any of your rights or obligations under these Terms, whether by operation of law or otherwise, without obtaining prior written consent of Fyxt. Any attempted assignment or transfer in violation of these Terms will be void and of no effect. The relationship between the parties is that of independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by these Terms. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. No term of these Terms will be construed to confer any third-party beneficiary rights on any non-party. Each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under applicable law. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.”