Please read carefully the following legally binding End User License Agreement (the "License Agreement") between FixMeStick Technologies Inc. (FixMeStick) and Licensee (as defined below) which governs Licensee's use of the Device.
By selecting the accept option, breaking the seal on the package or installing, copying or otherwise using the Device (the "Start Date"), Licensee acknowledges that Licensee has read, understands, and agrees to be bound by the terms of this License Agreement, unamended. If Licensee does not agree with the terms of this License Agreement, License must not install or otherwise use the Device and, if applicable, within 30 days after purchase must return the Device (including any packaging and accompanying items) to FixMeStick or Licensee's supplier, as applicable, together with proof of purchase for a full refund.
Also, by installing, copying or otherwise using Updates and/or Upgrades, Licensee agrees to be bound by any additional license terms that accompany such Updates and/or Upgrades. If Licensee does not agree to the additional license terms that accompany such Updates and/or Upgrades, Licensee may not install, copy or use such Updates and/or Upgrades.
Where a reseller, service provider, consultant, contractor or other party downloads or otherwise provides the Device for Licensee and/or installs or activates the Device on Licensee's behalf prior to Licensee's use of the Device, such reseller, service provider, consultant, contractor or other party will be deemed to be Licensee's agent acting on Licensee's behalf and Licensee will be deemed to have accepted all of the terms and conditions of this License Agreement as if Licensee had directly downloaded, installed or used the Device.
2. COPYRIGHT AND OWNERSHIP
2.1 FixMeStick retains title to the Hardware until such time as any evaluation period (if applicable) expires and Licensee pays the Fees. Unless and until Licensee has paid the Fees, Licensee agrees to keep the Hardware free and clear of all claims, liens, and encumbrances except those of FixMeStick, and any act by Licensee, either voluntary or involuntary, purporting to create a claim, lien or encumbrance on the Device shall be void. Once Licensee has paid the Fees, title to the Hardware shall pass to Licensee. Risk of loss passes to Licensee upon shipment of the Device to Licensee. Insurance, if any, covering the Device shall be Licensee's responsibility. Licensee owns only the Hardware on which the Software is installed. Licensee does not own the Software itself. The Device, Software and the Documentation including all intellectual property, know-how, concepts, logic and specifications related to the Device are proprietary products of FixMeStick and/or its licensors and are protected throughout the world by copyright and other intellectual property rights. No license, right or interest in FixMeStick's logos, or trademarks is granted to Licensee under this License Agreement and Licensee hereby agrees not to remove any product identification or notices of proprietary restrictions. Further, Licensee hereby acknowledges and agrees that the right, title and interest in the Software and the Documentation, and in any modifications made by Licensee to the Software or Documentation, as provided for below in this License Agreement, is retained by FixMeStick. Notwithstanding the foregoing, FixMeStick and any third party suppliers shall retain any and all intellectual property rights in the Hardware.
2.2 Licensee acknowledges that the Hardware is sold hereunder solely as the medium for delivery and operation of the Software and, unless otherwise agreed by the parties in writing, FixMeStick at its option may provide Hardware that is either new or refurbished.
3. RIGHTS AND RESTRICTIONS
3.1 License Term. This License Agreement is effective from the Start Date, and shall remain in force during the License Term. If Licensee wants to renew Licensee's license, Licensee should contact FixMeStick or Licensee's reseller, distributor or dealer, as applicable. Licensee's obligations under this License Agreement in respect of the intellectual property and confidential information of FixMeStick shall survive any expiry or termination of this License Agreement.
3.2 Rights. In consideration of the payment of the Fee by Licensee, FixMeStick hereby grants to Licensee a limited non-exclusive right to use the Device for the License Term subject to the terms and conditions contained within this License Agreement. Licensee is permitted to:
3.2.1 use the Device for Licensee's Internal Business or Personal Purpose, relating specifically to the integrity of Licensee's systems, networks, documents, emails and other data ("Licensee's Internal Business or Personal Purpose"). The number of Computers for which Licensee may use the Device must not exceed the number of Computer Licenses. Licensee is wholly responsible for the compliance by Users with this License Agreement; and/or
3.2.2 use, copy, reproduce in whole or in part, adapt and modify the Documentation for Licensee's Internal Business or Personal Purpose only
3.3 Restrictions. Licensee is not permitted to:
3.3.1 modify or translate the Products except (i) as necessary to configure the Licensed Products using the menus, options and tools provided for such purposes and contained in the Software; (ii) in relation to the Documentation, except as necessary to produce and adapt manuals and/or other documentation for Licensee's Internal Business or Personal Purpose;
3.3.2 reverse engineer, disassemble (including without limitation, removing the covering plates which bar access to the Hardware internals and/or accessing internal components of the Hardware) or decompile the Device or any portion thereof or otherwise attempt to derive or determine the source code or the logic therein except to the extent and for the express purposes authorised by applicable law;
3.3.3 install and/or run on the Device any software applications other than the Software;
3.3.4 transmit or provide access to the Device save as provided in this License Agreement;
3.3.6 sub-license, rent, sell, lease, distribute or otherwise transfer the Device save as provided under this License Agreement unless Licensee obtains a separate license from FixMeStick for such purposes (for example, Licensee may not embed any part of the Device into another application and then distribute such to third parties unless Licensee first acquires an OEM license from FixMeStick);
3.3.7 sub-license, rent, sell, lease, distribute or otherwise transfer the Device to any individual who is not acting in the course of Internal Business or Personal Purpose;
3.3.8 use the Device in or in association with safety critical applications where the failure of the Device to perform can reasonably be expected to result in a significant physical injury, or in loss of property, or loss of life. Any such use is entirely at Licensee's own risk, and Licensee agrees to indemnify and hold FixMeStick harmless from any and all claims or losses resulting from or relating to such unauthorized use; and/or
3.3.9 use the Device for the purposes of competing with FixMeStick or its suppliers, including without limitation competitive intelligence.
4.1 Licensee acknowledges and agrees that the Device and FixMeStick may directly and remotely communicate for the purposes of, without limitation, verifying Licensee's credentials, issuing reports and alerts such as automated support requests and alert messages, and to provide maintenance or support.
5.1 FixMeStick warrants to Licensee only that:
5.1.1 For a period of ninety (90) days from the date of purchase (the 'Software Warranty Period") the Software will perform substantially in accordance with the Documentation provided that they are operated in accordance with the Documentation on the designated operating system(s) ; and
5.1.2 For as long Licensee has a valid, fully paid up, unexpired license for a Device, FixMeStick warrants that the Hardware shall be free of defects in materials and workmanship under normal use and service and substantially conform to the Documentation (the "Hardware Warranty").
5.2 FixMeStick's entire liability and Licensee's sole remedy under the warranties described in Clause 5.1 shall be (at FixMeStick's option) to correct, repair or replace the Hardware, or Software, as applicable, within a reasonable time or provide or authorise a refund of the Fee following the return of the Device accompanied by proof of purchase. Any items provided as replacement under the terms of this warranty will be warranted for the remainder of the original warranty period.
5.3 Upon discovery of any failure of the Hardware (or any of its component), Licensee may sent a request to FixMeStick's support. Upon receipt of a valid Hardware Warranty claim, FixMeStick may replace the defective Device as soon as commercially possible, with a new or refurbished Device, at FixMeStick's sole discretion.
5.4 Title to the allegedly defective Hardware or component part shall pass to FixMeStick on shipment by Licensee of the Device to the return location indicated by FixMeStick. Should the Hardware or component part(s) of the Hardware returned by Licensee: (i) be deemed not to be defective or "no fault found" (NFF); or (ii) should a returned Device be missing any Hardware, FixMeStick will invoice Licensee and Licensee agrees to pay the cost of the Hardware or component part of the Hardware, as applicable. FixMeStick SHALL NOT BE RESPONSIBLE FOR MAINTAINING OR PROTECTING ANY CONFIGURATION SETTINGS OR DATA FOUND ON THE RETURNED DEVICE OR COMPONENT PART OF THE DEVICE. Title to the replacement Hardware provided to Licensee in accordance with Clauses 5.2 and 5.3 respectively shall pass to Licensee on shipping or payment of the hardware Fee, whichever is the later. Risk of loss in relation to any replacement Hardware provided to Licensee shall pass to Licensee upon shipment of such Device to Licensee. Licensee shall be responsible for any insurance for the replacement Hardware.
5.5 The warranties contained in this License Agreement do not apply to repair or replacement caused or necessitated by: (i) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; fluctuations in electrical power beyond those set out in the specifications; failure of air conditioning or humidity control; improper maintenance, or any other misuse, abuse or mishandling; (ii) force majeure including without limitation natural disasters such as fire, flood, wind, earthquake, lightning or similar disaster; (iii) governmental actions or inactions; (iv) strikes or work stoppages; (v) Licensee's failure to follow applicable use or operations instructions or manuals; (vi) Licensee's failure to implement, or to allow FixMeStick or its agents to implement, any corrections or modifications to the Device made available to Licensee by FixMeStick; or (vii) such other events outside FixMeStick's reasonable control.
5.6 THE ABOVE WARRANTIES ARE NULL AND VOID IF ANY WARRANTY STICKERS ARE TAMPERED WITH OR ARE MISSING, OR, IF THE DEVICE WAS REPAIRED OR ALTERED BY PERSONNEL OTHER THAN THOSE AUTHORISED BY FIXMESTICK.
6. DISCLAIMER OF WARRANTIES
6.1 EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN CLAUSE 5, FIXMESTICK AND ANY OF ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, UNDERTAKINGS OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RELATION TO THE DEVICE (INCLUDING ANY AND ALL SOFTWARE OR HARDWARE COMPONENT INCLUDED THEREIN) INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE.
WITHOUT LIMITATION TO THE FOREGOING, FIXMESTICK DOES NOT WARRANT THAT THE DEVICE WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE DEVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT DEFECTS IN THE DEVICE (OTHER THAN HARDWARE DEFECTS WITHIN THE HARDWARE WARRANTY) WILL BE CORRECTED. FIXMESTICK DOES NOT WARRANT THAT THE DEVICE WILL DETECT AND/OR CORRECTLY IDENTIFY AND/OR DISINFECT ALL THREATS, APPLICATIONS (WHETHER MALICIOUS OR OTHERWISE) OR OTHER COMPONENTS.
6.2 FIXMESTICK DOES NOT WARRANT OR REPRESENT THAT LICENSEE IS ENTITLED TO BLOCK ANY THIRD PARTY APPLICATIONS AND EXPRESSLY DISCLAIMS LIABILITY FOR ANY SUGGESTIONS MADE BY FIXMESTICK (INCLUDING WITHOUT LIMITATION BY ITS EMPLOYEES, CONSULTANTS AND SUB-CONTRACTORS) IN CONNECTION WITH LICENSEE'S USE OF THE DEVICE.
6.3 LICENSEE FURTHER ACKNOWLEDGES AND AGREES THAT LICENSEE SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL DATA BEFORE USING THE DEVICE AND THAT LICENSEE SHALL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. FIXMESTICK AND ITS LICENSORS AND SUPPLIERS ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA IS LOST.
7. LIMITATION OF LIABILITY
7.1 LICENSEE USES THE DEVICE AT LICENSEE'S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FIXMESTICK, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR ANY OF ITS LICENSORS AND SUPPLIERS BE LIABLE TO LICENSEE FOR (OR TO THOSE CLAIMING THROUGH LICENSEE) FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGE OR LOSS OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF CONTRACTS, BUSINESS INTERRUPTIONS, LOSS OF OR CORRUPTION OF DATA HOWEVER CAUSED ARISING OUT OF RELATING TO THIS AGREEMENT, OR CAUSED BY THE DEVICE, OR THE USE, MISUSE OR INABILITY TO USE THE SOFTWARE, THE SERVICES, THE WORK PRODUCTS OR THE, EVEN IF FIXMESTICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR UNDER ANY OTHER LEGAL THEORY.
7.2 IN NO EVENT SHALL FIXMESTICK'S AGGREGATE LIABILITY TO LICENSEE ARISING OUT OF OR IN CONNECTION WITH THIS LICENCE AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, EXCEED THE AMOUNTS PAID BY LICENSEE FOR THE DEVICE.
8. OPTIONAL DATA SHARING
8.1 If Licensee does not choose to allow: (i) sharing of data with FixMeStick in order to improve protection and/or application control; or (ii) remote assistance, this Clause 8 does not apply to Licensee.
8.2 If Licensee chooses to allow sharing of such supplementary data with FixMeStick or authorise FixMeStick to provide remote assistance, Licensee shall be deemed to have agreed to implement optional functions which allow the Device to provide FixMeStick with various data. While FixMeStick does not intend that such data include proprietary, confidential or user-identifiable data, by enabling this option Licensee acknowledges that it may be possible for such data to include proprietary, confidential or user-identifiable data and Licensee represents to FixMeStick that Licensee has obtained all necessary permissions to share such data with FixMeStick.
8.3 Licensee agrees that FixMeStick may use any technical information provided by Licensee, including without limitation information provided under the terms of this Clause 8, for its business purposes, including without limitation for product support and development.
9. DATA COLLECTION
To improve the detection of malicious software, the following information may be automatically transferred to FixMeStick and its OEM suppliers for which each OEM supplier becomes a rightholder:
- Checksums of processed files (MD5).
- Potentially malicious files.
- The name and the version of the anti-virus software.
- Checksums of the detected object name (MD5).
Obtained information will be treated anonymously, and may contain personal or confidential information of the Licensee.
10.1 The Device may include confidential information that is secret and valuable to FixMeStick and its licensors. Licensee is not entitled to use or disclose that confidential information other than strictly in accordance with the terms of this License Agreement.
11.1 Licensee agrees to release, indemnify, defend and hold harmless FixMeStick and any of its licensors, suppliers, agents, employees, officers, directors, shareholders, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorney's fees and expenses, of third parties relating to or arising out of (a) Licensee's breach of this License Agreement, or (b) Licensee's use or misuse of the Device or the use or misuse of the Device by a User or by a third party under Licensee's control. FixMeStick may, at its own expense, assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, but its doing so shall not excuse Licensee's indemnity obligations in this License Agreement. The terms of this Clause 10.1 will survive any termination or cancellation of this License Agreement.
We may from time to time modify the terms of this License Agreement. Any changes to this License Agreement will be effective immediately for current and new Licensees.
13.1 Any reseller, distributor or dealer from whom Licensee may have purchased the Device is not appointed or authorised by FixMeStick as its servant or agent. No such person has any authority, either express or implied, to enter into any contract or provide Licensee with any representation, warranty or guarantee with or to Licensee or to translate or modify this License Agreement in any way on behalf of FixMeStick or otherwise to bind FixMeStick in any way whatsoever.
13.2 Licensee agrees to pay the Fee in full in accordance with an invoice from FixMeStick, or an authorised reseller, distributor, or dealer, if applicable. Unless otherwise stated, the Fee is exclusive of any federal, state, provincial, municipal or other governmental taxes, duties, licenses, fees, excises or tariffs. Licensee agrees to pay such taxes.
13.3 This License Agreement constitutes the entire agreement between the parties with respect to the use of the Device licensed hereunder and supersedes all prior understandings regarding such subject matter.
13.4 The illegality, invalidity or unenforceability of any part of this License Agreement will not affect the legality, validity or enforceability of the remainder.
13.5 This License Agreement is governed by and interpreted in accordance with the laws of the Province of Quebec, Canada without regard to any conflict of law principles to the contrary. The 1980 U.N. Convention on Contracts for the International Sale of Goods or any successor thereto does not apply. Licensee hereby irrevocably agrees to submit to the jurisdiction of the provincial and federal courts located in Montreal, Quebec any dispute arising out of or in connection with this License Agreement, including any question regarding the Device. Licensee will not prosecute any action, suit, proceeding or claim arising under or by reason of this License Agreement except in such courts.
13.6 Licensee will not assign this License Agreement to any third party without FixMeStick's prior written consent. FixMeStick may assign this License Agreement or any rights under this License Agreement to any third party without Licensee's consent. Any assignment in violation of this Section will be void.
13.7 Any notices required to be given in writing to FixMeStick or any questions concerning this License Agreement should be addressed to The Company Secretary, FixMeStick Technologies Inc. 5 Renfrew Ave, Westmount, QC, H3Y2X3, Canada.
Copyright FixMeStick Technologies Inc. 2018