THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN MAINTENANCE ASSISTANT INC (dba Fiix) AND YOU WHICH GOVERNS YOUR USE OF MAINTENANCE ASSISTANT™ (dba Fiix) SOFTWARE AND SERVICES (THE “SERVICES”). IF YOU DOWNLOAD, ACCESS OR USE THE SERVICES, YOU ARE ACCEPTING TO DO SO ON THE TERMS OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER; AND (III) ANY PERSONS IN THE ORGANIZATION FOR WHOM USER ACCOUNTS ARE CREATED, WILL BE NOTIFIED OF AND AGREE TO BE BOUND BY THESE TERMS PRIOR TO USING THE SERVICES.
I. GETTING STARTED
(b) Creating User Accounts within an Organization: You can create individual user accounts for use by members of Your organization of the Services. However, in doing so, You acknowledge and agree that it is Your responsibility to ensure that such additional users have reviewed and agreed to the terms of this Agreement which also govern their use of the Services.
(c) Services Classification: MA Services classifications are subject to change from time to time, without notice and at the sole discretion of MA.
II. FREE TRIAL OR FREE SERVICE
(a) If You register for a free trial of one or more Products or Services offered by MA, MA will make the same available to You on a trial basis free of charge until the earlier of (i) the end of the free trial period for which you registered or are registering to use the applicable Service or (ii) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
(b) If You register for one or more free Services offered by MA, MA will make the same available to You until the earlier of (i) immediately after thirty (30) days of inactivity of the free Service or (ii) the start date that You upgrade to a paid version of the Services or (iii) The discontinuation of the free Service by MA in its sole discretion. In such case MA will provide You with ninety (90) days notification prior to the discontinuation of the free Service. Additional terms and conditions may appear on the registration page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL OR FREE USE PERIOD WILL BE PERMANENTLY LOST UNLESS YOU: PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR FREE SERVICE; PURCHASE UPGRADED SERVICES; OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL OR FREE PERIOD.
NOTWITHSTANDING SECTION XI (LIABILITY PROVISIONS), DURING THE FREE TRIAL OR FREE SERVICES PERIOD THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OR GUARANTEE OF ANY KIND.
Please review the User Guide during the trial or free period so that You become familiar with the features and functions of the Services before You make Your purchase.
III. SUBSCRIPTION TERM AND TERMINATION
(a) Service Period and Renewals: Services purchased will be provided to You for the period set out in the order form on the Website or in the Services, renewable in accordance with the subscription and renewal provisions selected when You ordered the relevant Services (“Renewal Period”), and Your account and profile registered with MA will remain active, until terminated by You or MA pursuant to Sections 3(b) or 3(c) below. Together these constitute the Term of the agreement.
(b) Termination by You: If You are dissatisfied with (i) the Services; (ii) the Agreement; or (iii) any policy or practice of MA in operating the Services, You must contact MA at email@example.com to terminate the Services. Termination is effective immediately from the date You contact MA (“Termination Date”) and You will not be entitled to a refund for the unused portion of your Services.
(d) Effect of Termination: Upon termination of this Agreement, (i) the Services shall terminate and MA will not be liable in respect of any damage caused by the termination of this Agreement. (ii) MA will use its reasonable commercial endeavours to return any electronic content contained in your Services to You in CSV format, if requested by you, within 30 days of Termination (a minimum 2 hours service charge applies in such cases).
IV. LICENCES AND PROPRIETARY RIGHTS
(a) License Grant: Subject to the terms of this Agreement and payment of the applicable fees, MA grants You a limited, personal, non-sublicensable, non-assignable, internal license and right to use the Services (including the underlying software and technology contained therein (“MA Materials”)) for the purpose of using the computerized maintenance management system (CMMS) provided by MA and any other applications that may be explicitly provided by MA. Any software provided to you is licensed; not sold.
(b) License Restrictions: You shall use the Services solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the MA Materials available to any third party. You shall not: (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the MA Materials except to the extent expressly agreed upon in writing by You or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (ii) circumvent any user limits or other use restrictions that are built into the Services (iii) access the Services in order to (1) build a competitive product or service; or (2) copy any ideas, features, functions or graphics of the Services.
(c) Restrictions on Use of the Services: You shall not (i) use, or permit the use of, the Services for an illegal purpose, criminal offence, intellectual property infringement, harassment (including annoying or offensive transmissions), or in a manner that would cause interference with network operations; ii) resell, remarket, transfer or share the Services or receive any charge or other benefit for the use of the Services; attempt to bypass MA’s network, or re-arrange, disconnect, remove, repair or otherwise interfere with any Services or facilities; or (iii) remove any proprietary notices, labels, or marks from the MA Materials or modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available through the Services nor use any of the foregoing except for the specific purpose for which such intellectual property is made available to You.
(d) Lawful purposes: You will at any and all times meet Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Services in Your country, including applicable rules that govern the export or import of software. You will use the Services solely for lawful purposes. In this respect You may not, without limitation (i) use the Services to manage any illegal operations, (ii) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the technology underlying the Services (including our proprietary software which may be available for download on our website), (iii) send any unsolicited commercial communication not permitted by applicable law; or (iv) endanger any part of any system or Internet connection of MA or any third party.
(e) Third Party Software: MA Materials may incorporate and embed software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the MA Materials falls under the scope of this Agreement. Such third party software is licensed; not sold and will be provided to You on the license terms of this Agreement unless additional or separate license terms apply as indicated at the time of download.
(f) Exclusive Ownership: Except for the rights and licenses granted in this Agreement, You acknowledge and agree that any and all intellectual property (“IP”) rights to or arising from the software are and shall remain the exclusive property of MA and its licensors. Nothing in this Agreement is intended to transfer any such IP rights to, or to vest any such intellectual property rights in, You. You are only entitled to the limited use of the intellectual property rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with MA’s IP rights. Any unauthorized use of MA’s intellectual property rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
(g) Content: As between You and MA, You own and retain the copyright in the content You provide, create, store and process through the Services, including in the MA Cloud and MA Community (the “Content”). MA will, from time to time, automatically collect information in your MA CMMS database, such as, but not limited to, your equipment downtime history and parts lists. This includes any Content that has been inputted by You or collected automatically (for example, through smart sensors or pulled from other corporate systems) by your MA CMMS. This information will be stored anonymously and will not be associated with your name or Account. When you use any MA services, MA will use this information and the Content of your MA CMMS, as well as other information, to give personalized recommendations to You. MA may combine this information with aggregated information from the MA CMMS databases of other Users, your usage history data, aggregated purchase history data from MA, and other information obtained from affiliated third parties, and use it to: (i) Create features, functionality, or content for You in your MA CMMS. (ii) Make available other products and/or services to You. (iii) Benchmark your Services and/or activities. (iv) Provide recommendations to You or others regarding products and services.
Therefore, in order to perform the Services as contemplated by this Agreement and in connection with creating aggregated datasets, add-ons and delivering new services and applications as described above, You hereby grant MA a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to collect, store, reproduce, adapt, modify, and/or use the Content, in an AGGREGATED and ANONYMOUS form (the “Content License”).
You understand that MA, in performing the required technical steps to provide the Services, may (a) transmit or distribute the Content over various public or private networks and in various media; and (b) make such changes to the Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that the Content License shall permit MA to take these actions. The Content License may be revoked for certain Services as defined in the Additional Terms of those Services.
You confirm and warrant to MA that you have all the rights, power and authority necessary to grant the above Content License and that use of the Content in the manner contemplated will not breach the rights of any third party.
(i) Suggestion: MA shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You or its users relating to the operation of the Services.
(j) Service Compatible Application(s): MA makes publicly available Service API’s for the purpose of integrating, extracting or entering data from Service Compatible Applications with the Service. You are responsible for any Service Compatible Applications developed (by You or a third party authorized by You) or implemented by You.
V. PURCHASE TERMS
(a) User Subscriptions: Unless otherwise specified, Services are purchased as monthly or annual subscriptions. Professional services are available on a time and materials or fixed quote basis as agreed with MA in an order form or quotation provided by MA to You.
(b) Fees, Payment and Charges: Your access to and use of the Services is subject to Your payment of the applicable fees due for the Service selected by You (“Fees”) set out on www.fiixsoftware.com or macmms.com and all other applicable amounts, charges and taxes indicated to You when You purchase Services (or otherwise notified to You by MA from time to time) when you use the MA payment gateway on the Website or noted on Your invoice. Unless otherwise stated on the Invoice, all invoiced amounts are due upon receipt. Receipts for purchased Services will be invoiced and delivered to You electronically. You shall: (i) keep the billing, credit card and payment information You provide to MA or its suppliers or payment processors, including name, credit card number and expiry date, mailing address, email address and telephone number, accurate and up to date, otherwise, we may suspend the Services; (ii) promptly advise MA if Your credit card information changes due to loss, theft, cancellation or otherwise; (iii) be liable for Your failure to pay any Fees billed to You by MA caused by Your failure to provide MA with up to date billing information; and (iv) upon termination of the Services in accordance with Section (b) and (c) of this Part III, provide MA with a forwarding address for all final invoices or correspondence should Your mailing address differ from that in Your profile. To offset its additional processing costs, MA may bill You for administrative charges as set from time to time for administrative or account activities including: collection efforts due to non-payment or having a balance over Your credit limit; returned or rejected payments; or changes in personal identifier information. All administrative charges charged to You will be indicated to You on Your invoice or receipt and You shall pay all such charges.
(c) Taxes: You are responsible for paying all governmental sales, use, value-added, commodity, harmonized and other taxes imposed on Your purchase or use of the Services. To the extent MA is required to collect such taxes, the applicable tax will be added to Your billing account.
(d) Transaction Processing: MA will cause transactions in respect of Your purchase of Services to be processed, and applicable fees owing by You to be collected. Annual subscriptions will automatically renew and the relevant fees will be processed and charged to You in full unless You notify MA at least thirty (30) days in advance of the anniversary of a renewal period that you wish to discontinue the service. Recurring payments for monthly subscriptions are processed on the same day of each subsequent calendar month that You originally acquired the Services on. Recurring payments for annual subscriptions are processed on the same day of the same month in each subsequent calendar year that You originally acquired the Services on. In the case of a leap year, subscriptions will be processed on the following day.
(e) Pre-authorized Payment: By providing a credit card to MA as part of your account set-up for Your monthly or annual pre-authorized payments, You authorize MA to charge Your credit card for all outstanding Fees, taxes and charges and outstanding account balances due under the Agreement, and this constitutes MA’s good and sufficient authority for so doing. If Your pre-authorized payment fails, MA may immediately deactivate Your account without notice to You and collect Fees owing using other collection mechanisms. You are solely responsible for all charges incurred under Your account by You or third-parties.
(f) Cancellation & Refunds: You may cancel or rescind any order for Services, however, You will not be issued a refund for the unused portion of Your Services.
VI. CHANGES TO SOFTWARE, SERVICES AND AGREEMENT
(a) Updates to Agreement: MA reserves the right to modify this Agreement at any time by publishing the revised Agreement on the Website. The revised Agreement shall become effective within five (5) business days of such publication or provision to You, unless You expressly accept the revised Agreement earlier by clicking on the accept button. Your express acceptance or Your continued use of the Services after expiry of the notice period of five (5) business days (being weekdays excluding any statutory holidays in Ontario, Canada), shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.
(b) Changes to MA Materials: MA may alter, update or upgrade any MA Materials from time to time. Materials and services will only be provided for current versions of the Products and Services made available by MA. MA may, in its discretion, provide service for prior versions of MA Software, Products and/or Services.
(c) Changes to Fees and Services: MA may change the Services, any service fees, amounts, charges (including one-time charges), and/or other aspect of any of the Services at any time upon reasonable notice to You by: posting the change on www.fiixsoftware.com; sending You notice via an email to the email address You provide on registration; placing a message on Your invoice; in writing; by electronic communication; or any other notice method likely to come to Your attention. If You do not accept the change, Your sole recourse is to terminate the Services. Your continued access to and use of the Service after the change has come into effect constitutes Your acceptance of the change and You acknowledge and agree that (i) You will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) You will continue to be responsible to pay for the Services unless You terminate in accordance with Section III.
VII. TECHNICAL SUPPORT AND MAINTENANCE SERVICES
(a) Technical support: Depending on the type of Service(s) ordered, MA will provide support for the Services and will (i) use commercially reasonable efforts to make the Services available during the hours specified except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond MA’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving MA employees), or Internet service provider failures or delays, and (iii) provide the Services only in accordance with applicable laws and government regulations.
(b) Maintenance Services: MA provides upgrades to its current Services and MA Materials from time to time to provide new features and improvements, bug fixes and error corrections. Support for out-of-production Products and Services will terminate six (6) months following the release of a new version of the Product or Service. A surcharge may apply to Users requiring support of out-of-date software beyond this period (c) Training: MA will provide training on-request either on-site or remotely to You or Your designated personnel at the rates set out by MA.
(d) Professional Services: One-off consulting and professional services may be requested on a fee-for-service basis. Technical Support for custom programming by MA professionals may be provided if requested by you, for a fee as determined by MA at its sole discretion. Purchased Professional Services are non-refundable and any unused Professional Services will expire twenty-four (24) months from the date of purchase.
(e) Service Deliverables: If any work product or deliverables are generated through the provision of Professional Services under this Agreement (“Deliverables”), the parties will determine ownership of such Deliverables in the purchase order executed for the Professional Services. Notwithstanding the generality of the foregoing, any enhancements, modifications or other customizations to the MA Materials or Services will be owned by and vest in MA exclusively including all title and interest in and to all Service Deliverables including the benefit of all copyrights, trademarks, patents, trade secrets or other intellectual property rights pertaining thereto.
(f) Named Contacts: When ordering certain Services that include a support seat(s), You must provide us with the name and contact information for a named contact(s) who will be the sole user(s) authorized to use the purchased service. The named contact (s) within the company or organization may be changed if necessary but must be entitled to make decisions on behalf of Your enterprise.
(g) MA Service Warranties: MA represents and warrants that during the term of the applicable Services it will provide the Services in a manner consistent with the related service levels.
VIII. DEVELOPER SANDBOX ENVIRONMENT
At its sole discretion, Maintenance Assistant will make a Sandbox Environment available to third party Developers to test their code with the MA API.
(a) Provision of Services: Services in the Sandbox Environment are provided as is with no guarantee or warranty of any kind. Certain features available in the MA Production Environment may not be available, may be limited or have restricted access in the Sandbox Environment at the sole discretion of Maintenance Assistant.
(b) Developer Accounts: Developer Accounts may be deleted by MA at any time and for any reason without notice. Re-instatement of a deleted Account will be at the sole discretion of Maintenance Assistant.
(c) Support: Technical Support for Developers will be limited to materials authored by Maintenance Assistant and published on the MA website. Additional Technical Support may be made available to Developers by Maintenance Assistant as part of a Subscription plan. Developer Technical Support may change from time to time without notice.
IX. RULES FOR POSTING
(a) Posting content: As part of the Services, MA may allow You to post content on MA social media sites, bulletin boards, blogs and at various other publicly available locations on fiixsoftware.com and macmms.com. These forums may be hosted by MA or by one of our third party service providers on MA’s behalf. You agree in posting content (whether publicly or privately) to follow certain rules notified to you on those sites including the following:
(i) You are responsible for all content you submit to fiixsoftware.com. By submitting content to us, you represent that you have all necessary rights and hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, modify, display, and perform all or any portion of the content in connection with MA and our business, including without limitation for promoting and redistributing part or all of the site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User a non-exclusive license to access your posted content, and to use, reproduce, distribute, prepare derivative works of, display and perform such content as permitted through the functionality of fiixsoftware.com and under this Agreement.
(ii) You may not post or transmit any message or content which is libelous or defamatory, or which discloses private or personal matters concerning any person. You may not post or transmit any message, data, image or program that is indecent, obscene, pornographic, harassing, threatening, abusive, hateful, racially or ethnically offensive; that encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; or that is otherwise inappropriate.
(iii) You may not post or transmit any message, data, image or program that would violate the property rights of others, including unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, and trademarks or service marks used in an infringing fashion.
(iv) You may not interfere with other Users’ use of the Services, including, without limitation, disrupting the normal flow of dialogue in an interactive area of MA sites, deleting or revising any content posted by another person or entity, or taking any action that imposes a disproportionate burden on the Service infrastructure or that negatively affects the availability of the Service to others.
(v) Except where expressly permitted, you may not post or transmit charity requests; petitions for signatures; franchises, distributorship, sales representative agency arrangements, or other business opportunities (including offers of employment or contracting arrangements); club memberships; chain letters; or letters relating to pyramid schemes. You may not post or transmit any advertising, promotional materials or any other solicitation of other users to use goods or services except in those areas (e.g., a classified bulletin board) that are designated for such purpose.
(vi) You agree that any employment or other relationship you form or attempt to form with an employer, employee, or contractor whom you contact through areas of fiixsoftware.com and macmms.com that may be designated for that purpose is between you and that employer, employee, or contractor alone, and not with us.
(vii) You may not copy or use personal identifying or business contact information about other Users without their permission. Unsolicited e-mails, mailings, telephone calls, or other communications to individuals or companies whose contact details you obtain through the Service are prohibited.
(viii) You agree that we may use any feedback, suggestions, or ideas you post in any way, including in future modifications of the Service, other products or services, advertising or marketing materials. You grant us a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to us in any way.
(a) Your Indemnity: You agree on demand to indemnify, defend and hold MA, its affiliates and MA staff harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of Your (i) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (ii) violation of any rights of any third party, or (iii) use or misuse of the Services.
XI. LIABILITY PROVISIONS
(a) NO WARRANTIES: MA CANNOT GUARANTEE THAT THE SERVICES WILL ALWAYS BE AVAILABLE, THAT THEY WILL OPERATE WITHOUT FLAW OR THAT THEY WILL NOT CAUSE ANY DATA LOSS. THE SOFTWARE AND ALL MA MATERIALS ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER; MA DOES NOT MAKE ANY EXPRESSED, IMPLIED OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, INTEGRITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. MA FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR MA MATERIALS WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES MA WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
(b) LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER MA NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES (WHETHER ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR TO ANY SERVICES PROVIDED TO YOU BY MA (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS)) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF MA (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. IN NO EVENT SHALL MA’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT THE AMOUNT PAID BY YOU HEREUNDER FOR SERVICES IN THE 12 MONTHS PRECEDING THE INCIDENT.
THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF MA (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATED TO ANY SERVICES PROVIDED TO YOU BY MA (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) IN RELATION TO THE SERVICES, EXCEED THE FEES PAID BY YOU TO MA FOR THE SERVICE COMPONENT GIVING RISE TO THE CLAIM.
THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER MA NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO IMMEDIATELY CEASE USE OF SUCH SERVICES.
XII. GENERAL TERMS
(a) Customer Service: For assistance with questions regarding this Agreement or the Services, if You have other enquiries, or if You require further assistance regarding use of the Services provided by us, please contact us using the contact details located at www.fiixsoftware.com/contact.
(b) Logos: MA may refer to You in MA’s customer list and may use Your corporate name and logo for this purpose. For the avoidance of doubt, MA will not use Your name, logo, any other trademark or trade-name of Yours for any other purposes without Your prior consent.
(c) Commercial Electronic Messages: By agreeing to the terms of this agreement, you provide your consent for MA to send you MA publications, event invitations, news, product offerings, announcements and other communications about our products and services via our in-application marketplace, MA Source, in-application notifications, or to your electronic address.
(d) Third-party relationships: You consent to allow MA, its Users or its business partners to present service offerings, advertisements, promotional materials, or product offers to You. Your dealings with, or participation in promotions of any third-party business partners via any MA service are solely between you and such third party and your participation is subject to the terms and conditions associated with that offering, advertisement or promotion. You agree that MA is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties.
(e) Third-party services: MA may present links to third-party Web sites or third-party services not owned or operated by us. We are not responsible for the availability of these third-party sites or services or their contents. You agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any content of any such third-party site or services or goods or services available through any such third-party site or service.
(f) Entire Agreement: The terms and conditions of this Agreement constitute the entire agreement between You and MA with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
(g) Severability: Should any term or provision hereof be deemed invalid, void or un-enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and the invalid, void or unenforceable portion will be severed from the Agreement.
(h) No waiver: If MA does not take action against all breaches of this Agreement, it does not mean that is waives its right at a later time to enforce the same.
(i) Assignment: You are not allowed to assign this Agreement or any rights hereunder. MA is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party, without giving prior notice.
(j) Applicable Law and Venue: This Agreement shall be governed by and construed in accordance with the laws of Ontario, Canada without giving effect to any conflict of laws or provisions whether contained in Canadian law or the laws of Your current state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the province of Ontario, Canada. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
© Maintenance Assistant Inc. (dba Fiix) All rights reserved – Last Revised: June 19, 2017