Last updated October 5, 2023
THESE TERMS OF SERVICE (“TOS”), TOGETHER WITH THE ORDER FORM, PRIVACY POLICY, AND DATA PROCESSING AGREEMENT (“DPA”), FORM A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN FIXABLY LTD. (BUSINESS ID: 2694664-6), A FINNISH LIMITED LIABILITY COMPANY HAVING ITS PRINCIPAL ADDRESS AT KAISANIEMENKATU 7, 00100 HELSINKI, FINLAND (“FIXABLY”) AND YOU (“USER”), A USER OF THE FIXABLY SOFTWARE-AS-A-SERVICE (“SAAS”) PRODUCT (”SERVICE”). IN THESE TOS, FIXABLY AND THE USER ARE REFERRED TO JOINTLY AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY “.
THE SERVICE IS INTENDED SOLELY FOR BUSINESS USERS AND NOT FOR CONSUMERS. BY USING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU ARE OR REPRESENT A COMPANY AND ARE NOT CONSIDERED A CONSUMER UNDER THE LAWS OF YOUR DOMICILE. FIXABLY RESERVES THE RIGHT TO REFUSE SERVICE TO ANY ORDER OR ENTITY, AT FIXABLY'S SOLE DISCRETION.
PLEASE READ THESE TOS CAREFULLY BEFORE ACCESSING, STARTING, OR OTHERWISE USING THE SERVICE. ANY OF THE ABOVE ACTIONS INDICATE THAT YOU HAVE READ THESE TOS, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND TO THESE TERMS AND CONDITIONS. SHOULD YOU NOT ACCEPT THESE TOS, THEN DO NOT ACCESS, START, OR OTHERWISE USE THE SERVICE.
In order to access the Service, the User is required to subscribe to the Service by accepting an Order Form and by paying the Subscription Fee (“Subscription Fee”). Subject to the terms and conditions of these TOS and payment of the Subscription Fee, Fixably hereby grants the User a non-exclusive, non-sublicensable, non-assignable license to access and use the Service solely for the User’s repair and service operations (“License”).
When subscribing to the Service, Fixably creates an administrative User account (“Service Account”). From the Service Account, the User can determine any access rights to the Service for its employees and other staff and create individual user accounts for the aforesaid persons (“User Accounts”). Both administrative users and other individuals using the Service on behalf of the User are regarded as Users as defined in these TOS and bound by the terms and conditions of these TOS. When subscribing to the Service and creating a User Account, the User shall provide accurate and complete information and update such information when required.
The Subscription period enters into force as defined by Subscription Start Date and Subscription End Date on the Order Form. If no period has been defined, The Subscription period enters into force as defined by the Order Form sign date until termination by either party in accordance with these TOS. The Subscription Period shall terminate automatically if Fixably terminates the Agreement due to breach by the User.
Fixably offers the Service under several different service plans (“Service Plan(s)”) which differ from each other by the features they encompass. Each Service Plan has features that are included in the Subscription Fee (“Included Features”), and may have features that are subject to additional fees (“Additional Features”). Included features and additional features are listed in the Order Form or in a separate service agreement if the Customer has entered into a separate service agreement with Fixably or its affiliate.
At the beginning of each Subscription Period, the User shall be charged the applicable Subscription Fee, and thereafter as defined in the Order Form. All sales are final and Fixably will not issue refunds, including for pre-paid fees. Fees for any Additional Features are negotiated separately and may be prorated from the time of addition to the end of the then current subscription term.
All fees are exclusive of taxes unless otherwise stated. Fixably will invoice taxes if it believes there is a legal obligation to do so and the User agrees to pay such taxes if so invoiced
The Subscription Fee and other charges may be altered by Fixably by informing the User about the changes in the pricing. The changes in the Subscription Fee become effective after the end of the Subscription Period, during which the changes were made.
If the Subscription Fee or other payments are not paid within seven (7) days of their due date Fixably reserves the right to suspend the User’s access to the service. Furthermore, Fixably has the right to collect overdue interest on the unsettled amount to the extent permitted by law in the User's region.
Fixably shall have the right to develop and make changes to its Service. You acknowledge that Fixably may make modifications to the Service during the Term without prior notice to you; however, Fixably will use reasonable efforts to notify you of any material changes to the Service in advance. In the event of material changes to the Service, Fixably may provide further instructions to you with respect to any actions required by you in order to continue access and use of the Service, if necessary.
Fixably reserves the right to update or change these TOS at any time. If any material changes are made to this TOS, the User will be notified either through the e-mail address the User has provided to Fixably, or by placing a prominent notice on Fixably’s website or in its software. Continued use of the Service after any modifications to the TOS are posted will constitute the User’s acknowledgment of the modifications and consent to abide and be bound by the modified TOS.
The User shall be solely responsible for any data the User or any persons acting on behalf of the User submits to the Service (“User Data”). The User shall ensure that the submitted User Data does not infringe any third-party intellectual property rights or violate any applicable laws or regulations. For the avoidance of doubt, Fixably shall not be liable for any User Data submitted to the Service by Users.
If User Data contains any information relating to an identified or identifiable natural person (“Personal Data”), the User shall be defined as the data controller and Fixably as the data processor in accordance with the General Data Protection Regulation (EU) 2106/679 (“GDPR”) as it relates to such Personal Data. Fixably shall not have any liability or responsibility in respect of any User Data other than the responsibilities associated with the processing of Personal Data in accordance with the GDPR.
User Data is backed up, duplicated, and distributed across multiple servers.
Unless Fixably and the User have entered into a separate DPA, as defined in Article 28 of the GDPR, the DPA terms published on Fixably’s website at the following URL shall be considered a DPA between the Parties under the Agreement:
https://www.fixably.com/data-processing-agreement
As described above, User Data may contain Personal Data, which Fixably may process in order to provide the Service. While in such cases the User shall be defined as the data controller and Fixably as the data processor, Fixably may also process certain Personal Data as the data controller, in accordance with the GDPR, in order to provide the Service. Such Personal Data may include for example contact details and other data concerning the User’s contact persons. Fixably shall process Personal Data in accordance with applicable data protection laws and regulations.
A more detailed description of the processing activities of Fixably acting as a data controller is found in the Privacy Statement published on Fixably’s website at the following URL: https://www.fixably.com/privacy-policy
The User must comply with these TOS and the separate user instructions concerning the Services. The User must also comply with all applicable laws and regulations and is solely responsible for any use of the Service Accounts and User Accounts. The User is, for example, responsible for obtaining all necessary rights to use the content which has been uploaded to the Service by or on behalf of the User.
The User shall without delay inform Fixably if they suspect that an unauthorized third party is using or may have access to the Service or the User Accounts or Service Accounts.
The User may use and/or modify the operating environment of the Service only according to the instructions given by Fixably from time to time. Any use and/or modification of the Service causing risks or interfering with the Service is prohibited.
The User is not entitled to use the Service for illegal or offensive purposes and if the User is uncertain whether or not its use of the Service could be deemed illegal or offensive, the User shall contact Fixably in advance and request permission. The User shall also provide reasonable cooperation in the event of an investigation of suspected breaches of these TOS.
The User shall indemnify, defend, and hold Fixably harmless from and against all liabilities, damages, and costs arising out of any breaches of these TOS by the User and/or User’s personnel.
The User hereby confirms and covenants to Fixably that the User nor any of its affiliates, officers, directors or employees will permit access to the Service or the User Accounts or Service Accounts by any parties, entities or persons, when such access would constitute an infringement of any export control laws or regulations by the European Union or the United States, or other regions, or an infringement of an embargo imposed by the European Union, by the United States of America and/ or by the United Nations, also considering the limitations of domestic business and prohibitions of by-passing those embargos, or the regulations of all applicable Sanctioned Party Lists of the European Union and the United States of America concerning the trading with entities, persons and organizations listed therein.
The User shall indemnify Fixably, its affiliates, officers, directors, employees against any and all damages, losses, expenses, costs, claims, fines, penalties, taxes, obligations and the related costs and expenses, including reasonable legal fees and expenses, incurred by Fixably (or any of its affiliates, officers, directors, employees) due to or in connection with the breach by the User (or any of its agents, affiliates, officers, directors, or employees) of the covenants set forth in the preceding paragraph.
Pursuant to these TOS, the User shall receive a limited license to the Service. The User shall have the right to use, for its internal purposes, the Service. Apart from the User’s right to the Service in accordance with these TOS, the User shall have no right to sell or otherwise transfer its license to the Service to a third party.
All the intellectual property rights included in Fixably’s work or otherwise arising from the Service, whether or not specifically recognized or perfected under the applicable law, shall remain vested exclusively with Fixably. If the User provides any ideas, suggestions, recommendations, or contributions to the Service (“Contribution”), Fixably is free to retain, use, and incorporate that Contribution to the Service or any other Fixably product or service, without payment of royalties or other consideration to the User. The title and rights to the User’s Data shall remain vested with the User. However, Fixably may use the User’s Data in aggregated form for its business purposes including to create public statistics, for example, to enable all Users to benchmark their performance against industry level statistics. In no event does the aggregated data include any personally identifiable information or company level data.
Fixably shall defend the User against any claim that the Service infringes the intellectual property rights of a third party and pay any damages finally settled or awarded in a trial to the third party with respect to any such claim, provided that the User notifies Fixably without delay of such claim. The User shall also give sole control of the defense and all related settlement negotiations in relation to the claim as well as reasonable assistance and necessary authorizations to defend or settle the claims on behalf of the User.
In case the Service infringes the intellectual property rights of any third party, Fixably shall have the right at its own expense to (i) modify/replace the Service to eliminate the infringement in such a manner that the modified Service complies with these TOS, or (ii) procure to the User a right to use the Service. If neither one of the aforementioned alternatives are reasonably possible, Fixably shall have the right to terminate this Agreement and refund to the User the Subscription Fee less the price corresponding to the time the User has been able to use the Service in accordance with these TOS.
Fixably shall, however, not be liable for any infringement or claim thereof in the event the claim (i) is made by any affiliates of the User; (ii) has resulted from the User’s use or modification of or addition to the Service; (iii) could have been avoided by using the latest version of the Service provided by Fixably; or (iv) is not related to the Service or any part of the Service for which Fixably is not responsible pursuant to this Agreement or statutory requirements. This section contains Fixably’s entire liability and the User’s sole and exclusive remedy in case of intellectual property rights infringements.
Fixably shall provide technical support provided the User submits a support ticket through the appropriate support channel. During the Subscription Term Fixably shall provide the User with technical support during Fixably’s normal business hours in order to help the User to identify and correct problems within the Service.
“Confidential Information” shall mean any information marked as confidential or which should be understood as confidential, no matter in what form of media or disclosure. The User undertakes to keep confidential all Confidential Information received from Fixably and refrain from using such Confidential Information for any purpose other than to fulfill this Agreement. This obligation does not apply to materials and information which was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations herein contained; or which was verifiably in the possession of the User prior to disclosure hereunder.
Unless otherwise agreed in writing, the User shall, upon termination or expiration of the License, immediately stop using all Confidential Information received from Fixably. The User has the same obligation also when the User no longer has a need for said information or material for the purposes of these TOS. Notwithstanding the aforesaid, the User shall have the right to keep copies required by mandatory law or regulations given by authorities.
The rights and obligations set forth in this section (Confidentiality) shall remain in force for a period of 24 months from the expiration or termination of the Agreement.
The Agreement between Fixably and the User enters into force when the User signs the Order Form and shall remain in force until further notice. If the Subscription Period is terminated before the end of the current subscription period by the User, the Agreement shall terminate in accordance with the notice of termination period defined on the Order Form. For clarity, User is obligated to pay subscription fees until the end of the termination period.
Fixably may terminate the Agreement with immediate effect if the other Party is in material breach of the Agreement. If Fixably is in material breach of the agreement, as manifested by a written notice by the User, Fixably will have a 30 day period to remedy the situation. If Remedy is not possible, then the User is entitled to a refund for the remaining subscription period.
THE SERVICE IS PROVIDED ”AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FIXABLY ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OR APPLICATION OF OR ERRORS OR OMISSIONS IN THE SERVICE. THE USER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER, OR OTHER DEVICE, OR LOSS OF DATA THAT RESULTS FROM ACCESSING OR USE OF THE SERVICE OR OTHERWISE IN CONNECTION WITH THE SERVICE. THE PARTIES EXPRESSLY NOTE THAT THE SERVICE IS NOT DESIGNED ERROR-FREE OR UNINTERRUPTED AND IS NOT INTENDED NOR FIT FOR PURPOSES REQUIRING FAIL-SAFE PERFORMANCE.
THE USER ACKNOWLEDGES THAT FIXABLY HAS NO CONTROL OVER THE USER’S USE OR EXPLOITATION OF THE SERVICE. THE USER THEREFORE AGREES TO INDEMNIFY AND HOLD FIXABLY HARMLESS AGAINST ANY COSTS, CLAIMS, DEMANDS, EXPENSES, AND LIABILITIES OF WHATSOEVER NATURE BY ANY THIRD PARTY ARISING FROM SUCH USE OR EXPLOITATION.
IN NO EVENT SHALL FIXABLY, OR ITS SUBSIDIARIES, AFFILIATES, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, EVEN IF FIXABLY HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. FIXABLY SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGES OR COSTS, ARISING OUT OF, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE OF THE SERVICE OR THE MEDIA, LOSS OF DATA OR EQUIPMENT, THE COSTS OF RECOVERING THE APPLICATION, THE MEDIA, DATA OR EQUIPMENT, THE COST OF SUBSTITUTE SOFTWARE, MEDIA, DATA OR EQUIPMENT OR CLAIMS BY THIRD PARTIES, OR OTHER SIMILAR COSTS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE USER UNDERSTANDS AND AGREES THAT FIXABLY’S LIABILITY UNDER THE AGREEMENT SHALL NOT EXCEED THE SUBSCRIPTION FEES PAID BY THE USER UNDER THE AGREEMENT DURING ONE (1) MONTH PRECEDING THE DATE UPON WHICH THE RELATED CLAIM AROSE.
LOCAL LEGISLATION IN SOME COUNTRIES DOES NOT ALLOW ANY EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; THE ABOVE LIMITATIONS OR EXCLUSIONS MAY APPLY TO YOU ONLY PARTLY OR NOT AT ALL.
The Agreement constitutes the entire agreement between the User and Fixably relating to the Service and governs the use of the Service, and completely replaces any prior or contemporaneous agreements between the User and Fixably regarding the Service.
The failure of Fixably to exercise or enforce any right or provision of these TOS does not constitute a waiver of such right or provision, which will still be available to Fixably.
If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these TOS is invalid, then that provision will be removed from the TOS without affecting the rest of the TOS. The remaining provisions of these TOS will continue to be valid and enforceable.
The rights granted in these TOS may not be assigned or transferred by the User without the prior written approval of Fixably. The User is not permitted to delegate its responsibilities or obligations under these TOS without the prior written approval of Fixably.
The Agreement and the User’s relationship with Fixably under the Agreement will be governed by the laws of Finland without regard to its conflicts of laws provisions. Any dispute, controversy, or claim arising out of or relating to the Agreement, or the breach, termination, or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The language of the arbitration shall be English, and the seat of arbitration shall be Helsinki, Finland.
Fixably Oy (Ltd.) © 2023