Term of Use
Hextom Inc. END USER LICENSE AGREEMENT
Last updated: June 30th, 2018
Hextom Applications are available only to individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review these terms and conditions with your parent or guardian to make sure that you and your parent or guardian understand these terms and conditions. You affirm that you are over the age of 13, and acknowledge that Hextom Applications are not available for children under 13 without the formally documented consent of their parent(s). If you are under 13 years of age, then you may not use any Hextom Application without your parents' consent.
1. LICENSE GRANT. Subject to the terms and conditions of this Agreement, Developer hereby grants to you a limited, non-transferable, non-sub-licensable, non-assignable and revocable license (License) to install and use the Application solely for your use in operating your Shopify store. To avoid any doubt: the Application is licensed, not sold, to you by Developer, pursuant to and subject to the terms and conditions of this Agreement and any other applicable terms and conditions promulgated by any third party. Developer reserves all rights not expressly granted to you herein. You acknowledge and agree that this Agreement is between you and Developer.
2. TERM. This License is effective until terminated. You may terminate this License at any time
by deleting or otherwise destroying the software together with all copies in any form. This
License will also terminate automatically, without notice to you, if you fail to comply with
any term or condition of this License. You agree that Developer also may, at its sole discretion,
temporarily or permanently terminate the License with prior notice to you and/or terminate the
services without prior notice to you. Upon termination, for any reason, you agree to delete and/or
destroy the software together with all copies in any form. Provisions which, by their nature,
should remain in effect beyond termination of this License Agreement shall survive.
4. RESTRICTIONS. You may not rent, lease, lend, sell, redistribute or sublicense the Application. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates or upgrades, or any part thereof. Any attempt to do so is a violation of the rights of Developer, its affiliates and licensors, as applicable. The terms and conditions of the Agreement shall govern any upgrades or update provided by Developer that replace and/or supplement the original Application, unless such upgrade is accompanied by or references a separate license agreement in which case the terms of that license agreement shall govern.
6. PROPRIETARY RIGHTS. Developer, its affiliates and/or their respective licensors own all right, title and interest in and to the Application, including, without limitation, all intellectual and proprietary rights appurtenant thereto, and, except for the limited license granted to you herein, nothing in this Agreement shall be construed to restrict, transfer, convey, encumber, alter, impair or otherwise adversely affect Developer's, its affiliates’ and/or their respective licensors' ownership or proprietary rights therein or any other of Developer's, its affiliates' and/or their licensors' information, processes, methodologies, products, goods, services, or materials, tangible or intangible, in any form and in any medium. Ownership of the Application software is protected by copyright and international treaties. Portions of the software are copyrighted works of Hextom Inc. Except as expressly stated herein, no other rights are granted to you by implication, estoppel, or otherwise, under any patent, copyright, trade secret, trademark, or other intellectual property right. You may not copy the Application software other than as expressly provided in this License. You may not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the software, or use any part of the software for any use other than that for which it was supplied by Hextom Inc., unless specifically authorized by Hextom Inc. You may not modify, adapt, alter, translate, or create derivative works from the software.
7. NO WARRANTY. You expressly acknowledge and agree that use of the Application is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort of the Application is with you. To the maximum extent permitted by applicable law, the Application and any services performed or provided by or in connection with the Application are provided "as is" and "as available", with all bugs and faults and without warranty of any kind, and Developer, its affiliates and licensors hereby disclaim all warranties and conditions with respect to the Application and any services, either express, implied or statutory, including, without limitation, any implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, of title, and of non-infringement of third party rights. Neither Developer, nor any of its affiliates or licensors warrants that the functions or services contained in, accessed from, performed by, displayed on, linked to/from, or provided by, the Application will meet your requirements, or that the operation of the Application or services will be uninterrupted or error-free, or that defects in the Application or services will be corrected. No oral or written information or advice given by Developer, its affiliates or any of their respective authorized representatives shall create a warranty. Should the Application or services prove defective, you assume the entire cost of all necessary servicing, repair or correction. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to you.
8. LIMITATION OF LIABILITY. To the extent not prohibited by law, in no event shall Developer or its affiliates, suppliers, channel partners and associated service providers be liable for any loss or damage of any kind, whether direct, indirect, incidental, special, exemplary or consequential, including, without limitation, damages for loss of profits, loss of data, data charges, business interruption or any other commercial damages or losses, arising out of or related to your use or inability to use the Application, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if Developer or its affiliates have been advised of the possibility of such damages. In no event shall Developer's liability exceed the price paid for the Application by the user. Developer or its affiliates shall not be liable should (i) the Application or any Update be removed and/or unavailable for any reason, (ii) the Application cease to function as a result of any modifications or updates to the operating system, changes to the 3rd party API. In any case, the entire liability of the parties shall be limited to the amount actually paid by you to download, copy or use the application. Some jurisdictions (e.g. countries, states and provinces) do not allow the limitation or exclusion of liability for incidental or consequential damages, or have legislation that restricts the limitation or exclusion of liability, so the above limitation may not apply to you.
9. INDEMNIFICATION. You agree to indemnify, defend, and hold Developer, its affiliates and their respective successors and assigns, officers, directors, employees, agents, licensors, representatives, advertisers, service providers, and suppliers harmless against any and all claims, demands, actions, losses, damages, costs and expenses (including reasonable attorneys' fees), arising out of or relating to your (a) breach or violation of this Agreement, (b) infringement, misappropriation or any violation of the rights of any other party, (c) violation or non-compliance with any applicable law, rule or regulation, and (d) use, alteration or export of the Application (or any component thereof) in violation of this Agreement.
10. CONTINUED USE OR AVAILABILITY. Developer and its affiliates reserve the right to modify, update, supplement, limit, discontinue, remove or disable access to the Application and/or any Services without notice to you, and neither Developer, its affiliates nor any of their respective licensors shall be liable to you or any third party should it exercise such rights.
11. UPDATES AND UPGRADES. You are only granted the right to the version of the Application as provided when purchased and solely incorporating the features and functionality provided with such version. You are not granted any rights to any updates, upgrades, future versions, modifications, supplements, and/or additional features and components (including any online or external functionality or Services) of the Application that may subsequently be made available by Developer with the Application or for use with the Application (collectively the Updates). From time to time, Developer may make available Updates to the Application via software download or other means. Such download may occur automatically without the need for any act on your part, or it may require you to manually download an update or upgrade through the same source from which the Application was originally downloaded. Certain functions of the Application may be modified or discontinued as a result of any such update or upgrade, or may not be available if you have not downloaded all Updates made available by Developer or otherwise. Developer may, in its sole and absolute discretion, provide you free of charge with Updates to the Application but reserves itself the right to charge additional sums for such Updates, the amount of which shall be determined by Developer in its sole and absolute discretion. Developer does not warrant, represent nor undertake to provide Updates and in no event shall Developer incur any liability for a failure to do so. Developer may, in its sole and absolute discretion, by means of Updates or otherwise, offer Services as a complement to the Application and reserves to itself the right to charge additional sums for same, including a monthly or yearly fee or a fee based on usage.
12. CHANGES TO THE AGREEMENT. Developer may make changes to this Agreement, at any time and from time to time, by notifying you of the change, including, without limitation, by including notice on the Services or by other electronic means, and a new copy of this Agreement shall be made available on the Services. By using the Application and/or any Services after such changes are made to the Agreement, you signify that you agree to be bound by and comply with such changes and Developer shall treat your use as acceptance of the changed provisions.
13. GOVERNING LAW AND INTERPRETATION. To the extent not prohibited by law, you agree (a) that this Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of the province of Ontario, Canada including the laws of Canada applicable therein (b) to irrevocably submit to the sole and exclusive jurisdiction of the courts of province of Ontario, situated in the City of Toronto, Ontario and (c) to irrevocably consent to the exercise of personal jurisdiction by such courts and waive any right to plead, claim or allege that the City of Toronto, Ontario is an inconvenient forum. No failure or delay by Developer, its affiliates or licensors to exercise any right or enforce any obligation shall impair or be construed as a waiver or ongoing waiver of that or any or other right or power. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and remain in full force and effect. You may not assign your rights under this Agreement without Developer's prior written permission and any attempt by you to do so shall be void. Any provision of this Agreement which by its nature must survive the termination of this Agreement in order to give effect to its meaning shall survive such termination. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Your use of the Application may also be subject to other local, state, provincial, national or international laws and use of the Application may be prohibited by law in some jurisdictions. By using the Application you certify that the laws of the jurisdiction in which you are using the Application permit the use of it.
14. EXPORT LAW ASSURANCES. You may not use or otherwise export or re-export the Application software except as authorized by laws of the jurisdiction in which the software was obtained. In particular, but without limitation, the software may not be exported or re-exported (a) into (or to a national or resident of) any embargoed countries, or (b) to anyone on a list of persons designated by the competent authorities of the jurisdiction in which the software was obtained as being persons to whom software should not be provided. By using the Application's software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
15. U.S. FEDERAL ACQUISITIONS. This Section 16 applies to all acquisitions of the Application software by or for the U.S. federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal government. The software is a "commercial item" as that term is defined in 48 C.F.R. 2.101 (October, 2004) consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 227.7202-1, 227.7202-3, 227.7202-4 (October, 2004). If you are in the U.S. Government or any agency or department thereof, the Software is licensed (a) only as a commercial item and (b) with only those rights as are granted hereunder. Unpublished-rights are reserved under the copyright laws of the United States.
16. EUROPEAN COMMUNITY PROVISIONS. If you obtained this Software within a country of the European Community, nothing in this License shall be construed as restricting any rights available under the European Community Software Directive (91/250/EEC).
17. USER OUTSIDE CANADA AND THE U.S. If you are using the Software outside the Canada and the U.S., then the provisions of this Section shall apply: (i) Les parties confirment que le prèsent Accord et toute la documentation connexe est et sera en langue anglaise. (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable; and (iii) if the laws applicable to your use of the Application would prohibit the enforceability of this Agreement, or impose any additional burdens on Developer, or confer any rights to you that are materially different from the terms and conditions of this Agreement, then you are not authorized to use the Software and you agree to remove it from your device.
18. "Hextom" is a trademark of Hextom Inc. and is not to be used without proper acknowledgement. All other trademarks appearing through the use of the services or the Application or the associated websites are the property of their respective owners.
20. CONTACT INFORMATION. You may contact Developer at:
35 Bastion St.
Toronto ON, M5V0C2