Nix Technology User Agreement
THIS IS A BINDING LEGAL AGREEMENT BETWEEN YOU AND NIX SENSOR, LTD. (“NIX”) (A COMPANY WITH OFFICES AT 286 SANFORD AVE NORTH, SUITE 501, HAMILTON, ONTARIO, CANADA, L8L 6A1), GOVERNING YOUR USE OF THE NIX COLOUR SENSING HARDWARE AND SOFTWARE.
DO NOT INSTALL, COPY OR USE THE NIX TECHNOLOGY (AS DEFINED BELOW), OR ANY PORTION THEREOF UNTIL YOU HAVE CAREFULLY READ AND AGREED TO THE FOLLOWING TERMS AND CONDITIONS.
BY USING THE NIX TECHNOLOGY, YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS IN THEIR ENTIRETY. IF YOU DO NOT WISH TO BE BOUNDY BY ALL OF THESE TERMS, OR IF YOU ARE UNABLE TO AGREE FOR ANY REASON, YOU CANNOT USE THE NIX HARDWARE, THE NIX DOCUMENTATION, OR THE NIX SOFTWARE.
For the purposes of this Agreement:
“Aggregated Data” has the meaning set out in Section 6.2.
“Analytics Data” has the meaning set out in Section 6.4.
“NIX Documentation” means any texts, images, manuals, electronic files, or other documentation describing or providing instructions for use of the NIX Hardware or the NIX Software.
“NIX Hardware” means the NIX color sensor hardware devices.
“NIX Software” means any computer or mobile device software provided by NIX that accepts connections from the NIX Hardware and/or processes colour data collected by the NIX Hardware.
“NIX Technology” means the NIX Hardware, the NIX Documentation, and the NIX Software collectively.
2.1 Subject to Your acceptance of and compliance in full with the terms and conditions of this Agreement, NIX hereby grants You a non-exclusive, royalty-free, revocable, non-transferable, limited license to use the NIX Technology, with the following limitations:
(a) NIX Software may only be used in conjunction with NIX Hardware. NIX Hardware may only be used in conjunction with NIX Software, or in conjunction with custom software developed by third parties under license from NIX;
(b) You may not modify the NIX Technology or create works derivative of the NIX Technology;
(c) You may not distribute, publish, sublicense, assign or otherwise transfer the NIX Software or the NIX Documentation;
(d) You may not decompile, reverse engineer, disassemble the NIX Software, or the NIX Hardware, except as explicitly permitted by law notwithstanding this limitation;
(e) You may not alter, obscure, or remove any copyright, trademark or patent notice(s) displayed on or associated with the NIX Technology; and
(f) You may only use the NIX Technology in compliance with all applicable law (including any applicable export control legislation), and not for any illegal purpose.
2.2 All rights not explicitly granted in this Agreement are expressly reserved by NIX.
2.3 From time to time NIX may make updated versions of the NIX Software available to You. If updated versions of the NIX Software are made available to You, You agree to cease using previous versions of the NIX Software, and to use only the most recent updated version of the NIX Software.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 You acknowledge and agree that the NIX Technology, and any future upgrades or improvements thereto (including any patent, trademark, copyright, trade secret and other proprietary rights thereto, whether or not those rights are specifically recognized or perfected in any particular jurisdiction in which this Agreement applies) are proprietary to NIX and/or its third party licensors.
3.2 Subject to the license granted to You herein, NIX shall retain all intellectual property rights in the NIX Technology. No assignment or license in the NIX Technology is granted to You other than to use the NIX Technology in the manner and to the extent explicitly authorized by this Agreement.
4. DISCLAIMER OF WARRANTIES
4.1 THE NIX TECHNOLOGY IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW, NIX DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, THAT THE SOFTWARE WILL RUN UNINTERRUPTED OR ERROR-FREE OR WARRANTIES ARISING FROM CUSTOM OF TRADE OR COURSE OF USAGE. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE NIX TECHNOLOGY IS ASSUMED BY YOU.
5. INDEMNITY AND LIMITATION OF LIABILITY
5.1 NIX AND ITS LICENSORS WILL NOT, UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU FOR ANY PUNITIVE, DIRECT, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM USE OF THE NIX TECHNOLOGY OR AS A CONSEQUENCE OF THIS AGREEMENT EVEN IF NIX AND/OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Under no circumstances will NIX’s total liability to You for any and all damages, losses, and causes of action (whether in contract, tort (including negligence) or otherwise) exceed the amount of $100 CAD.
5.2 You agree to defend, indemnify and hold harmless NIX and its licensors, and any of their directors, officers, employees, affiliates or agents from and against any and all loss, damage, liability and other expenses (including reasonable attorneys’ fees), resulting from Your use of the NIX Technology or from any violation of the terms and conditions of this Agreement.
6. YOUR PRIVACY
6.1 NIX respects the privacy of its clients and end-users.
6.2 NIX collects certain aggregated information about colour scans made using the NIX Technology (the “Aggregated Data”). This information does not include any information that can be used to identify an individual user. The Aggregated Data includes the following types of information:
(a) The date and time the scan was conducted;
(b) The city in which the scan was performed (includes city/town, province/state, country). Specific GPS coordinates are not transmitted to NIX;
(c) The color that was scanned; and
(d) The application settings that were used when the scan was conducted.
6.3 NIX makes use of the Aggregated Data in various ways, including to improve the performance and usability of its software applications, and to generate datasets that may be useful in analyzing abstract colour preferences across all NIX users in various geographical regions. NIX may use this Aggregated Data (which does not include any information identifying individual users) for commercial purposes, and may share, distribute, or sell this aggregated information at its discretion.
6.4 NIX may also collect analytics information regarding the manner in which users interact with NIX software applications (the “Analytics Data”). Such information may include information about the user interface screens that are viewed by users, and other information about how the user interacts with the NIX software applications. This information does not include any information which identifies an individual user, and is used only by NIX and only to improve the performance and usability of the NIX software applications.
6.5 In order to verify that connections are coming from authorized NIX Hardware units, the NIX Software may, from time to time, connect to NIX servers to confirm the serial numbers of NIX Hardware units. NIX may store information indicating that a particular serial number has been checked in the past, but this information will never be tied to the Aggregated Data or the Analytics Data, and this serial number information will never be shared outside of NIX.
7. AMENDMENTS TO THESE TERMS
7.1 NIX may amend this Agreement at any time by posting an updated version of this Agreement on the NIX website at the following URL: [nixsensor.com/legal/], or by displaying a notice when You install an updated version of the NIX Software. Any amendments shall be effective from the time they are posted on the NIX website, or when the notice is displayed to You in connection with installation of the NIX Software, whichever occurs earliest. Once posted, the amended version of the Terms immediately supersedes any previous versions of this Agreement. Your continued use of the NIX Software and the NIX Hardware indicates that You agree to the amended terms.
8.1 This Agreement will terminate immediately without notice from NIX or judicial resolution if (1) You fail to comply with any provisions of this Agreement, or (2) You provide NIX with notice that You would like to terminate this Agreement. Upon termination of this Agreement, You must delete or destroy all copies of the NIX Software and NIX Documentation and cease using the NIX Hardware. Upon termination of this Agreement, all provisions survive except for Section 2.
9.1 All monetary amounts referred to in this Agreement are given in Canadian dollars.
9.2 Nothing in this Agreement shall be considered to constitute a joint venture, partnership, or trust relationship between the parties. The only relationship that is intended to be created by this Agreement is that of independent contracting parties.
9.3 The subject headings of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.
9.4 If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remainder of this Agreement shall remain valid and in full force and effect. In the event of such partial invalidity, the Parties shall seek in good faith to agree on replacing any such legally invalid provision with a provision which, in effect, will most nearly and fairly approach the effect of the invalid provision.
9.5 This Agreement contains the complete and exclusive statement of the agreement between the parties and supersedes all prior and contemporaneous agreements, understandings, proposals, negotiations, representations or warranties of any kind, whether oral or written. No oral or written representation relating to the subject matter of this Agreement that is not expressly contained herein is binding on either party.
9.6 This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, and the laws of Canada applicable therein, without regard to any conflicts of laws principles.