Effective April 2024
Welcome to FactoryFix, the website and online services of FactoryFix, Inc. (“FactoryFix”). By accessing FactoryFix’s services, you are agreeing to this FactoryFix SaaS Services Agreement (“Agreement”) between FactoryFix, Inc., and the entity on whose behalf accepts this Agreement (“Customer”). FactoryFix and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
In our sole discretion, we reserve the right to change or modify this Agreement at any time and for any reason by updating this Agreement's “Last updated” date. Your continued use of this site after such modifications will constitute acknowledgment of the modified Terms of Use and an agreement to abide and be bound by the modified Terms of Use.
1.1 “FactoryFix IP” means the Platform Services, the Documentation, and any intellectual property provided to the Customer or any Authorized User.
1.2 “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who Customer authorizes to access and use the Platform Services under the rights granted to Customer under this Agreement; and (ii) for whom access to the Platform Services has been purchased under this Agreement.
1.3 “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Platform Services.
1.4 “Documentation” means FactoryFix’s end-user documentation relating to the Platform Services.
1.5 “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner.
1.6 “Order Form” means an order form entered by the Parties that incorporates this Agreement by reference.
1.7 “Third-Party Products” means any third-party products provided with, integrated with, or incorporated into the Platform Services.
2.1 Responsibility
The customer is responsible for the acts of others utilizing its access to the Platform Services, including but not limited to Authorized Users, and will be held accountable for violations of the Platform Services by persons with access.
2.2 Use Restrictions
Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of any FactoryFix IP, whether in whole or in part, including without limitation by automated or non-automated “scraping”; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform Services or Documentation to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform Services, in whole or in part; (iv) collect or harvest any Personal Information from the Platform Services; (vii) access or use any FactoryFix IP for purposes of competitive analysis of FactoryFix or the Platform Services, the development, provision, or use of a competing software service or product, or any other purpose that is to FactoryFix’s detriment or commercial disadvantage; (viii) bypass or breach any security device or protection used by the Platform Services or access or use the Platform Services other than by an Authorized User through the use of valid access credentials; or (ix) input, upload, transmit, or otherwise provide to or through the Platform Services any information or materials that are unlawful or injurious, or that contain, transmit, or activate any Harmful Code.
2.3 Suspension of Platform Services
FactoryFix may, directly or indirectly, suspend or otherwise deny Customer's, or any Authorized User's access to or use of all or any part of the Platform Services, without incurring any resulting obligation or liability, if: (a) FactoryFix receives a judicial or other governmental demand or order, subpoena, or law enforcement request to do so; or (b) FactoryFix believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User is or has been, involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Platform Services; or (iii) this Agreement expires or is terminated.
2.4 Aggregated Data
Notwithstanding anything to the contrary in this Agreement, FactoryFix may monitor Customer’s use of the Platform Services and collect and compile data and information related to or derived from Customer Data or Customer’s use of the Platform Services that is used by FactoryFix in an aggregate and anonymized manner, including to compile statistical and performance information related to the Platform Services (“Aggregated Data”). Customer agrees that FactoryFix may (i) make Aggregated Data available to third parties, including its other customers, in compliance with applicable law, and (ii) use Aggregated Data to produce results for Customer, to maintain, evaluate, develop, and improve the Platform Services, for any other internal business purposes of FactoryFix, and to the extent and in the manner otherwise not prohibited under applicable law.
3.1 Third-Party Products
FactoryFix may occasionally make third-party products available to customers, or FactoryFix may allow certain third-party products to be integrated with the platform services to transmit customer data from such third-party products into the platform services. For purposes of this Agreement, such Third-Party Products are subject to their Terms of Service. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. By authorizing FactoryFix to transmit Customer Data from Third-Party Products into the Platform Services, the Customer represents and warrants to FactoryFix that it has all right, power, and authority to provide such authorization. By connecting its Account with a Third-Party Product, the Customer gives FactoryFix permission to access and use the Customer’s information from that Third-Party Product as permitted by the Terms of Service of that Third-Party Product and to store the Customer’s log-in credentials for that Third-Party Product.
3.2 Customer Control and Responsibility
The Customer has and will retain sole responsibility for (i) all Customer Data, including its content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Platform Services; (iii) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (iv) the security and use of Customer's and its Authorized Users' access credentials; and (v) all access to and use of the Platform Services directly or indirectly by or through the Customer Systems or the Customer’s or its Authorized Users' access credentials.
4.1 Subscription Fees
The Customer shall pay FactoryFix the fees (“Fees”) identified in the applicable Order Form for the packages and subscriptions purchased during the Order Term. Such payments will be due and payable upon executing the Order Form. Unless otherwise set forth herein, Fees paid by Customer are non-refundable.
4.2 Terms
The Customer shall pay FactoryFix for all upfront Platform and subscription fees due on receipt. Unless otherwise specified on the Order Form, following the initial Term indicated on the Order Form, Customer’s subscription to the Platform Services will automatically renew for an identical Term at the then-current subscription fee unless either Party gives the other written notice of termination at least thirty days before the expiration of the then-current Platform Services term.
4.3 Taxes and Government Fees
All Fees and other amounts payable by the Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on FactoryFix’s income. To the extent that FactoryFix is required by law to pay any such taxes, duties, or other charges to any governmental or regulatory authority, FactoryFix may invoice Customer for such taxes, duties, or other charges, and Customer will pay such invoiced amounts under this Agreement.
5.1 Definition
Either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media. Except for Personal Information, Confidential Information does not include information that, at the time of disclosure, is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information.
5.2 Duty
The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, and agents who need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to the Confidential Information hereunder.
6.1 FactoryFix IP
Customer acknowledges that, as between Customer and FactoryFix, FactoryFix owns all rights, titles, and interests, including all intellectual property rights, in and to the FactoryFix IP and, concerning Third-Party Products, the applicable third-party providers own all rights, titles, and interest, including all intellectual property rights, in and to the Third-Party Products. If the Customer recommends changes to the FactoryFix IP or the Platform Services, or any comments, questions, or suggestions, FactoryFix is free to use such Feedback without any attribution or compensation for any purpose whatsoever.
6.2 Customer Data
FactoryFix acknowledges that, as between FactoryFix and Customer, Customer owns all rights, titles, and interests, including all intellectual property rights, in and to the Customer Data. The Customer grants FactoryFix the right to use and display the Customer Data and perform all acts concerning the Customer Data as may be necessary for FactoryFix to provide the Platform Services to Customer. The Customer may export the Customer Data at any time through the features and functionalities made available via the Platform Services.
7.1 Disclaimer of Warranties
ALL MATERIALS AND SERVICES ON THIS SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE SERVICES AND MATERIALS WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE SITE FROM US OR OUR AFFILIATES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
7.2 Limitation of Liability
IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS SITE OR OF ANY WEB SITE REFERENCED OR LINKED TO FROM THIS SITE.
FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD-PARTY GOODS AND SERVICES OFFERED THROUGH THIS SITE OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THIS SITE, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
8.1 Term
The term of this Agreement begins on the Effective Date and will continue in effect until terminated by either party under Section 10.2 (“Term”). The term of each Order Form shall be as set forth therein (“Contract Term”).
8.2 Termination
a) Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice.
b) Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
c) Customer may terminate this agreement with 30 days written notice to FactoryFix before an upcoming renewal term. All termination notices shall be sent in writing to AR@FactoryFix.com or their designated sales representative.
9.1 Entire Agreement
This Agreement, together with any Order Forms and other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties concerning the subject matter of this Agreement. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, an Order Form, and any other documents incorporated herein by reference, the following order of precedence governs: (i) the applicable Order Form, (ii) this Agreement; and (iii) any other documents incorporated herein by reference.
9.2 Force Majeure
In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, plague, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
9.3 Severability
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
9.4 Assignment
Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of FactoryFix. Any purported assignment or delegation violating this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of its obligations.
9.6 Governing Law
We control this site (excluding any linked sites) from Delaware, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of Delaware, by accessing this site, both of us agree that the statutes and laws of the State of Delaware, without regard to the conflicts of laws and principles thereof and the United Nations Convention on the International Sales of Goods, will apply to all matters relating to the use of this site and the purchase of products and services available through this site. Each of us agrees and submits to the exclusive personal jurisdiction and venue of any court of competent jurisdiction within the State of Delaware concerning such matters.
9.7 Publicity
FactoryFix may identify Customer as a user of the Platform Services and may use Customer’s name, logo, and other trademarks in FactoryFix’s customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising from there shall inure to the sole and exclusive benefit of Customer). If the Customer would not like FactoryFix to exercise the publicity rights, the Customer must email Sales@FactoryFix.com stating that it does not wish to be used as a reference.
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