fyxify End User License Agreement
Last Updated: July, 28 2021
This fyxify End User License Agreement (this “Agreement”) is a binding agreement governing the installation, access, and use of the Fyxify application (including all related documentation, the “Application”). This Agreement is by and between you, on behalf of yourself and any other persons who access or use the Application through your account or other associated accounts via a family sharing plan or volume purchasing (“You”), and fyxify, LLC, a Florida limited liability company (“fyxify”).
BY CLICKING THE “AGREE” BUTTON OR DOWNLOADING, INSTALLING, OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE AT LEAST 16 YEARS OF AGE OR OLDER AND are of legal age to ENTER INTO a binding AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION AND DELETE IT FROM ALL MOBILE DEVICES owned or otherwise controlled by You (the “Mobile Devices”).
Application. The Application provides a platform (the “Platform Service”) where You can be matched with a network of independent third-party contractors (the “Contractors”) who provide HVAC, plumbing, electrical, roofing, home repair, and other services requested by You through the Application (collectively, the “Contractor Services”). You acknowledge and agree that fyxify is not providing to You any services other than making the Application available and providing the Platform Service through the Application. Without limiting the generality of the foregoing, fyxify does not provide any Contractor Services.
Contractor Services. It is up to the Contractor to decide whether to provide services requested through the Application and to provide such services, and it is up to You to decide whether to accept services performed through the Application. fyxify cannot ensure that a Contractor will complete an arranged service. fyxify does not have any responsibility or liability for acts by any Contractor and does not control the quality or safety of a Contractor’s services.
- Payment Terms. fyxify Services. No fees will be charged to You by fyxify for Your use of the Application or fyxify’s provision of the Platform Service.
- Contractor Services. You understand that your use of the Application may result in charges to you for the Contractor Services. The prices for the services offered through the Application may differ from the prices offered or published by Contractors through other means. fyxify has no responsibility or liability for such charges, and any disputes relating to such charges must be directed to the applicable Contractor and not to fyxify.
- License Grant. The Application is licensed, not sold, to You. Subject to the terms of this Agreement, fyxify grants You a limited, non-exclusive, and nontransferable license to download, install, and use the Application for Your personal, non-commercial use strictly in accordance with this Agreement; provided that, for the avoidance of doubt, the Application may be accessed and used by other accounts associated with the purchaser via a family sharing plan or volume purchasing, which access and use will be subject to the terms of this Agreement.
- License Restrictions. You shall not:
- copy the Application, except as expressly permitted by this license;
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not protected or protectable under patent, copyright, or other law, of the Application;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; or
- breach any applicable third-party terms of agreement when using the Application.
- Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to You. You do not acquire any ownership interest in the Application or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. fyxify and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to You in this Agreement.
- Geographic Restrictions. fyxify is based in the state of Florida in the United States and the Application’s content and features are provided for access and use only by persons located in the United States. You acknowledge that You may not be able to access all or some of the content or features outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If You access the Application from outside the United States, You are responsible for compliance with local laws. You represent and warrant that You are not (i) located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country or (ii) listed on any U.S. Government list of prohibited or restricted parties.
- fyxify may from time to time, in its sole discretion, develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that fyxify has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on Your Mobile Devices’ settings, when Your Mobile Devices are connected to the internet either:
- the Application will automatically download and install all available Updates; or
- You may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should You fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
User Content. The Application may permit users to post, submit, publish, display, or transmit to other users or other persons content or materials provided by users (collectively, “User Content”) (including reviews of the Application or Contractors). All User Content will be considered non-confidential. By providing any User Content, You (a) grant fyxify, its affiliates, and its service providers, and each of its and their respective licensees, successors, and assigns, a license to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose and (b) represent and warrant that You own or control all rights in and to such User Content and have the right to grant such license. You understand and acknowledge that you are responsible for all of your User Content and that You, not fyxify, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. fyxify is not responsible, or liable to You or any third party, in any way for any User Content provided by You or any other user.
- Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (collectively, “Third-Party Materials”). You acknowledge and agree that fyxify is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. fyxify does not assume and will not have any liability or responsibility to You or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to You, and You access and use them entirely at Your own risk and subject to such third parties’ terms and conditions.
- Termination of Access. fyxify may terminate Your access to the Application at any time without notice if (a) it ceases to support the Application, which fyxify may do in its sole discretion, or (b) You violate any of the terms or conditions of this Agreement. Upon such termination, (i) all rights granted to You under this Agreement will also terminate and (ii) You must cease all use of the Application and delete all copies of the Application from Your Mobile Devices and account. No termination of Your access to the Application will limit any of fyxify ‘s rights, remedies, or protections under this Agreement or otherwise at law or in equity.
- Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, fyxify, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, fyxify PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES; OPERATE WITHOUT INTERRUPTION; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; BE ERROR-FREE; OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL fyxify OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO ANY CONTRACTOR SERVICES, ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY CONTRACTOR, THE PLATFORM SERVICE, OR YOUR USE OF OR INABILITY TO USE THE APPLICATION OR ITS CONTENT OR FEATURES, INCLUDING, WITHOUT LIMITATION, FOR PERSONAL INJURY; PROPERTY DAMAGE; LOST PROFITS; COST OF SUBSTITUTE GOODS OR SERVICES; LOSS OF DATA; LOSS OF GOODWILL; BUSINESS INTERRUPTION; COMPUTER FAILURE OR MALFUNCTION; DIRECT DAMAGES; OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES. ANY CLAIMS RELATING TO ANY CONTRACTOR SERVICES OR ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY CONTRACTOR MUST BE BROUGHT DIRECTLY AGAINST THE APPLICABLE CONTRACTOR AND NOT AGAINST fyxify.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR fyxify WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
- You agree to indemnify, defend, and hold harmless fyxify and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to (a) Your use or misuse of the Application, (b) Your breach of this Agreement, including but not limited to the content You submit or make available through this Application, (c) your violation of any law or the rights of any third party, including a Contractor, or (d) your gross negligence or willful misconduct.
- Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
- US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if You are an agency of the US Government or any contractor therefor, You receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding against fyxify arising out of or related to this Agreement or the Application shall be instituted and maintained exclusively in the state courts or the federal courts located in or for the City of Sarasota, Florida, although fyxify retains the right to bring any suit, action or proceeding against you in your country or state of residence or any other relevant country or state. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.
- The Parties acknowledge that, except as otherwise explicitly provided herein, fyxify shall not be obligated to defend or indemnify You with respect to any third-party claim arising out of or relating to the Application.
- Limitation of Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE AGAINST fyxify ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Entire Agreement. This Agreement and the other documents referenced herein constitute the entire agreement between You and fyxify with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.
- No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
- Contact Information. Any questions, complaints, or claims should be directed to:
7565 Commerce Ct.
Sarasota, FL 34243