Welcome to IXM Mobile Terms of Service! Invixium (“Invixium”, “we” or “us”) offers a licensed mobile app with several features such as, assigning digital cards as a mobile credential, enrolling face templates of its users and gathering attestation questions for screening before entering a premises. Please read these terms of services (these “Terms”) carefully as they govern your use of the Invixium Services (as defined below) and create a binding contract between you and Invixium.
1. The Services
These Terms govern the use of various features offered by Invixium (the “Services”) provided through Invixium’s application, as updated from time to time (the “Application”) including without limitation, “IXM Mobile”, a platform which allows organizations (“Organizational Users”), amongst others, to track, view, and organize information collected by the Services with respect to individual users affiliated or connected to such Organizational User, which it has invited to use the Services or purchased a license for, and any other service or solution Invixium indicated, or has indicated, is subject to these Terms.
2. Orders; Payment
Provision of certain Services (as determined by Invixium from time to time) may be further subject to execution or approval of a Invixium order form, as may be required by Invixium (a “Order Form”). Additionally, certain Services (as determined by Invixium from time to time) may be subject to payment of fees for such Services as specified in an Order Form, the Application, or elsewhere. Except as specifically set forth in these Terms, all payment obligations are non-cancelable and all payments made are non-refundable. Any Services which is subject to execution of an Order Form or payment of fees, shall be provided subject to the terms of these Terms, as well as the provisions of the applicable Order Form (these Terms shall govern in the event of a conflict) and the payment of applicable fees.
All fees specified by Invixium exclude any applicable taxes. Accordingly, you shall bear applicable taxes and similar charges, including any applicable sales, usage, excise and value added taxes with respect to such fees (for avoidance of doubt, you are not required to pay any taxes imposed on Invixium’s income, gross revenue or the like). If applicable law requires you to withhold any amount from your payments to Invixium, you shall advise Invixium in advance and in writing and will only withhold amounts after you have provided Invixium adequate opportunity to provide certification of exemption or reduction from such withholding (and only in accordance with such certification). You shall provide Invixium with copies of documents related to any withholding by you upon Invixium’s request.
3. Your Invixium Account
Use of the Services is not permitted to individuals under the age of 18. You are responsible for all activity that occurs in association with your account. Invixium is not liable for any Loss (as defined below) caused by your failure to maintain the confidentiality of your account credentials.
4. Your Information
Any information or data submitted by you through the Services or collected by the Services with respect to you (including without limitation personal identifying information, various health and bodily indicators, face templates and answers to screening questions) (collectively, “Information”) may be used, stored and transferred by Invixium in accordance with its privacy policy, which can be found here: https://www.invixium.com/privacy-policy/ (the “Privacy Policy”). We encourage you to review the Privacy Policy, as it is an integral part of these Terms. Except as expressly set forth otherwise under these Terms, you are solely responsible for all Information you provide.
5. Your Obligations
Amongst other requirements of these Terms, you are required to comply in all respects with the instructions related to the use of Invixium Services specified in the documentation posted on Invixium website: https://www.invixium.com (the “Website”) or the Application (the “Documentation”), including without limitation, our Privacy Policy and other requirements related to the equipment required for use of the Services (which may include, without limitation, a supported mobile device and adequate internet access). You are solely responsible for the consequences of your failure to comply with the instructions of the Documentation.
In addition to the above, if you are an Organizational User then (a) you are obligated to comply with the Privacy Policy and applicable law with respect to any information made available to you through the Services (including without limitation the Information related to the users you have invited to use the Services or for which you have purchased licenses to use the Services), and (b) you are, as between you and Invixium (and regardless of any consent obtained from users through their acceptance of these Terms or otherwise requested by Invixium), solely responsible to obtain the requisite consents under applicable law for your receipt, storage, use/processing or transfer of any information made available to you through the Services, which is related to the users affiliated or connected to you or which you have invited to use the Services or purchased a license for.
6. License
Invixium grants you a limited, non-exclusive, non-transferable, non-sublicensable license, subject to these Terms, to (i) access and use the applicable Services which you have purchased or subscribed for pursuant to the applicable Order Form, and (ii) access and view, as Organizational User, the Invixium Analytics (as defined below) made available through such Services. This license is provided to your organization, for both internal and external use.
7. Prohibited Uses
Notwithstanding anything to the contrary herein, you may not perform, attempt to perform, or encourage or assist others in performing any of the following: (i) connecting to or accessing any portion of the Services other than through the use of the Services’ intended interfaces; ; (ii) accessing non-public areas of the Services; (iii) testing the vulnerability of the Services, breaching any security or authentication measures, circumventing any technological measure implemented by Invixium or any of its providers to protect the Services, or publishing or disseminating any reports or analysis with respect to the Services; (iv) decompiling, disassembling, reverse engineering, tampering with, or attempting to derive the source code of any portion of the Services; (v) copying, adapting, modifying, preparing derivative works based upon the Services, Invixium Analytics; or (vi) distributing, licensing, selling, transferring, publicly displaying, publicly performing, transmitting or otherwise disposing of the Services, Invixium Analytics or any portion thereof in a manner not explicitly permitted herein.
8. Maintenance and Support
Invixium’s maintenance and support terms shall be as set forth in Invixium’s services level agreement (the “SLA”). Invixium shall use commercially reasonable efforts to make the Services available at all times, except as set forth in the SLA. In all cases Invixium will take reasonable efforts to provide you advance notice of such maintenance to the extent possible. In the event of a breach by Invixium of the requirements of this section, Invixium will, as the sole and exclusive remedy to you for such breach, use best efforts to render the Services into compliance with the above requirements. For avoidance of doubt (and notwithstanding the above), any interruption arising from third party services or other external systems or infrastructure, including without limitation internet, hosting, network or telecommunication infrastructure, shall not be considered as a breach of the foregoing warranty.
9. Disclaimers; Use at Own Risk
OTHER THAN TO THE EXTENT SPECIFICALLY AND EXPLICITLY SPECIFIED IN THESE TERMS OR THE DOCUMENTATION, THE SERVICES, ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ANY WARRANTY PROVIDED IN THE DOCUMENTATION SHALL NOT APPLY TO THE EXTENT (A) THE SERVICES ARE USED IN A MANNER WHICH IS NOT COMPLIANT WITH THESE TERMS, THE DOCUMENTATION AND/OR ANY OTHER APPLICABLE TERMS, INCLUDING IN PARTICULAR AND WITHOUT LIMITATION TO THE EXTENT THE SERVICES HAVE BEEN MODIFIED, CHANGED, OR REPAIRED BY ANY PARTY WHICH IS NOT INVIXIUM.
Invixium makes no warranty regarding the accuracy and completeness of any statistics, parameters, data or information monitored and/or displayed through any of the Services. The Services are not intended to diagnose, treat, monitor, cure, or prevent any disease, and are not intended to match or replace (a) any services or information produced by medical or scientific measurement devices; and/or (b) any diagnosis by you or your physicians of consumption of medication or any other medical parameters; and/or (c) any services or treatments by physicians and other medical care professionals. Additionally, Invixium makes no warranty that the Services will meet your requirements and/or any medical or regulatory standards or be available on an uninterrupted, secure, or error-free basis. You acknowledge and agree that if you rely on any Services, you do so solely at your own risk.
We do not accept liability for any error or omission, injury, expense, loss or damage caused, in whole or in part, by you or any other third party’s actions, omissions, or negligence.
Without derogating from the aforementioned, you acknowledge that the Services may be impaired or produce inaccurate or incorrect output due to, without limitation (a) the provision by you of incorrect details; and/or (b) use of the Application when it is not updated with the last available update and/or (c) use of the Application other than as instructed by Invixium.
10. Limitation of Liability
NEITHER INVIXIUM, ITS AFFILIATES, OFFICERS AND/OR EMPLOYEES SHALL BE LIABLE FOR (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, COSTS, LOSSES OR EXPENSES INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA AND/OR GOODWILL ARISING OUT OF, OR IN CONNECTION WITH, THE SERVICES AND/OR YOUR OR ANY THIRD PARTY’S RELIANCE UPON THE SERVICES; AND (B) ANY DAMAGES, LOSSES AND/OR EXPENSES (“LOSSES”) ARISING OUT OF, OR IN CONNECTION WITH YOUR OR ANY THIRD PARTY’S RELIANCE UPON THE INVIXIUM SERVICES. THE AFOREMENTIONED SHALL APPLY REGARDLESS OF WHETHER A CLAIM IS BASED UPON CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT INVIXIUM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN INVIXIUM AND YOU.
WITHOUT DEROGATING FROM THE ABOVE, INVIXIUM SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY INACCURACY, PERFORMANCE FAILURES, BREACHES, UNAVAILABILITY AND/OR LOSSES ARISING OUT OF, OR IN CONNECTION WITH, ANY EXTERNAL THIRD PARTY SERVICES UPON WHICH THE SERVICES RELY (INCLUDING WITHOUT LIMITATION FAILURES RELATED TO HOSTING SERVICES, PAYMENT PROCESSING SERVICES) AND/OR GENERALLY FROM CAUSES BEYOND INVIXIUM’S REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, CELLULAR, INTERNET OR BLUETOOTH FAILURE, NETWORK OR COMPUTER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, OR ACTS OF PROVIDERS OF THIRD PARTY SERVICES.
IN ADDITION, IN ANY EVENT AND NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY INCLUDING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY LAW, INVIXIUM’S MAXIMUM TOTAL AGGREGATE LIABILITY UNDER THESE TERMS WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, SHALL NOT EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, THE AMOUNTS PAID BY YOU FOR ALL SERVICES IN THE 9 MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE FIRST CLAIM HEREUNDER.
11. Indemnity
You will indemnify and hold harmless Invixium, its affiliates and their respective officers and/or employees, from and against any Losses (for clarification, the term Losses shall include without limitation reasonable attorney fees) incurred due to any third party suit, claim or procedure arising out of, or connected with your breach of these Terms.
12. Invixium’s Rights
Invixium retains all right, title and interest, including without limitation all patents, copyrights, trade secrets, trademarks, and any other intellectual property rights (whether or not registerable) in and to the Services, the technology, know how, and any other intellectual property (including without limitation any software) underlying the Services, including without limitation any improvements, updates, upgrades, error-corrections or other modifications thereto, and any derivative work based thereon. Except for the rights expressly granted to you hereunder, these Terms do not grant you any rights or license by implication or otherwise with respect to any of Invixium’s intellectual property.
Without derogating from the above, as between you and Invixium, Invixium shall be the sole and exclusive owner of all rights to any and all feedback provided by you, and any ideas, inventions and/or improvements (whether protectable by any intellectual property protection or not) conceived or derived or resulting from such feedback or embodied therein (“Feedback”). You hereby irrevocably assign to Invixium any rights that you may have in such Feedback, and to the extent such rights may not be assigned, you hereby provide Invixium a royalty free, perpetual, worldwide, exclusive, irrevocable license to use such Feedback for any purpose, including commercial purposes.
13. Evaluation Use
This section applies only if you have obtained use of the Services as part of an approved evaluation (unless Invixium has explicitly approved in advance and in writing that the Services have been provided for evaluation use, the Services shall NOT be deemed to have been provided as part of an evaluation and this section shall not apply). If you have obtained use of the Services as part of an approved evaluation, you may use the applicable Services only internally within your organization, and solely for the purpose of evaluating whether the Services meet your requirements. Furthermore, when the Services are provided for evaluation use, they may be used (a) only for the length of the evaluation period agreed in writing with Invixium, and if none was explicitly agreed in writing, then only for 30 days from the first use (the applicable period shall be referred to as the “Evaluation Period”), and (b) only by and with respect to no more than the number of distinct users explicitly permitted by Invixium in writing, and if none was explicitly agreed in writing, then, no more than by 5 distinct app users. ANYTHING TO THE CONTRARY HEREIN, INVIXIUM SHALL HAVE NO LIABILITY AND PROVIDES NO WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO ANY SERVICES PROVIDED FOR EVALUATION USE, and your sole remedy, with respect to Services provided for evaluation, will be to terminate the Evaluation Period and cease use of the Services.
14.Termination
These Terms shall be effective as of the Effective Date and shall continue in effect until they are terminated as specified herein. The subscription period for Services provided under any Order Form, or for paid Services, shall be for the periods specified in the applicable Order Form, or otherwise agreed or specified in writing with Invixium if no Order Form exists (the “Subscription Period”). The Subscription Period may also be earlier terminated in accordance with this Agreement.
You may terminate these Terms and all outstanding Services (and their Subscription Periods) by submitting a request to delete your Account or providing written notice of termination to Invixium and then ceasing all use of the Services, in which case these Terms and the applicable Services shall terminate immediately upon deletion or receipt of termination notice by Invixium (as applicable). Invixium may, in its sole discretion, terminate these Terms and any outstanding Services and Order Form and/or cease providing the Services or any portion thereof, at any time for convenience or inability to continue providing the Services with an advance 30 day written notice (or without notice, to the extent you are using the Services free of charge).
Additionally, either you or Invixium may terminate the applicable outstanding Services and Order Form if the other party breaches any provision of these Terms, by providing written notice to the breaching party specifying the breach, such notice to be effective 14 days of its receipt, provided the breach was not cured within such period (or effective immediately upon receipt, to the extent termination is by Invixium and the terminated Services were provided free of charge). Without derogating from the aforementioned, Invixium may also immediately suspend your use in the event you breach these Terms including any failure to timely pay any fees stated under the Order Form or elsewhere.
Upon termination or expiration of these Terms or the applicable Order Form or Subscription Period, for any reason whatsoever, all rights granted to you shall immediately terminate and you shall immediately cease any use of the Services. Notwithstanding anything to the contrary herein, only where termination is by Invixium for convenience (and not for breach) or by you for breach and in accordance with the procedures of this section 14, you will be entitled to receive a pro-rated refund of any fees pre-paid by you for unused portion of a Subscription Period for a paid Services. It is clarified, notwithstanding anything to the contrary herein, that any other event of termination shall not affect your obligations to pay for the entirety of any paid Subscription Period initially contracted for, as if no early termination had occurred.
You acknowledge that following termination, any Information related or made available to you through the Services will no longer be available to you through the Services or otherwise made available to you by Invixium (and Invixium shall be entitled to destroy such information or data).
Notwithstanding the forgoing, any provisions of these Terms that by their nature are intended to survive termination, including without limitation the provisions of sections 9, 10, 11, 12, 14, 15 and 20 of the Terms, shall not be affected or prejudiced by such termination.
15. Confidential Information
Both Invixium and you agree to keep confidential and to use only for purposes of performing or as otherwise permitted under these Terms, any proprietary or confidential information of the other party disclosed pursuant to these Terms which is marked as confidential or is identified at the time of disclosure as confidential or which would reasonably be considered confidential or proprietary in nature (“Confidential Information”). The obligation of confidentiality shall not apply to information which (i) is publicly available through authorized disclosure; or (ii) is known by the receiving party at the time of disclosure as evidenced in writing; or (iii) is rightfully obtained from a third party who has the right to disclose it; or (iv) which is required by law, government order or request to be disclosed (provided that the receiving party shall give written notice to the other party prior to such disclosure and an opportunity, at the objecting party’s expense, to take legal steps to resist or narrow such request). Without derogating from the aforesaid, you acknowledge and agree that the Services shall be deemed to constitute Confidential Information of Invixium. The receiving party will use no less than a reasonable standard of care to safeguard the Confidential Information received from the disclosing party. The receiving party will only use the Confidential Information of the disclosing party: (a) to exercise its rights and perform its obligations under this Agreement, or (b) as otherwise required by law. Upon any termination of these Terms, either you or Invixium shall destroy or return to the other party (as applicable) all its Confidential Information, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in these Terms. The parties agree that the receiving party’s disclosure of Confidential Information except as provided herein may result in irreparable injury for which a remedy in money damages may be inadequate. The parties further agree that in the event of such disclosure or threatened disclosure, the disclosing party may be entitled to seek an injunction to prevent the breach or threatened breach, in addition to remedies otherwise available to the disclosing party at law or in equity.
16. Alerts and Notifications
As part of your use of the Services, you may receive notifications, text messages, alerts, or e-mails. You hereby agree to the receipt of these communications. You can control receipt of related communications from your account settings, unless required for operational purposes.
17. Changes
We are entitled to change these Terms from time to time. We will notify you of changes to the Terms by posting them on the Website and/or the Application or in any other way we deem appropriate. Any such change shall be effective immediately upon such notification or posting (as applicable). By continuing to use the Services following a change, you are accepting such change. We may also change or discontinue, temporarily or permanently, any feature or component of the Invixium Services at any time, with or without notice, without incurring any liability to you aside from as explicitly specified herein.
18. Force Majeure
Neither party shall be liable to the other for any performance delay or failure to perform hereunder (other than any payment obligation) due to any act, omission or condition beyond the reasonable control of the affected party.
19. Governing Law and Venue
These Terms shall be governed by the laws of the Province of Ontario, without regard to its conflict or choice of laws principles. The parties irrevocably agree that any and all disputes concerning these Terms shall be brought in the federal and state courts of the province of Ontario having jurisdiction thereof and irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum, non-convenience or any similar claim or defense.
20. General Terms
The headings used in these Terms are for convenience of reference only and shall not affect the interpretation or meaning of the terms and provisions of these Terms. These Terms (alongside any Order Form if applicable) constitute the entire agreement between the parties regarding the use of the Services (other than to the extent explicitly specified herein), and supersede any previous arrangement, understanding or agreement between you and Invixium, written or oral, relating thereto. Neither party’s waiver of any breach or default of any provision of this Terms shall constitute a waiver of other provisions or any other right hereunder, or a waiver of any subsequent breach or default. Unless expressly provided otherwise herein, all remedies hereunder are cumulative and do not exclude any other remedies available by law. If any provision of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in full force and effect. These Terms do not confer any rights on any third party. You shall not, without the prior written consent of Invixium, assign, transfer, or sub-contract these Terms and/or any of your rights or obligations under these Terms, and any unauthorized assignment shall be null and void. Invixium may, at any time, freely assign, transfer or sub-contract these Terms or any or all of its rights or obligations under these Terms.
21. Contact Details
Any required or permitted notices hereunder must be given in writing (a) if to Invixium, by E-mail to the following address: experience@invixium.com; and (b) if to you by e-mail to the e-mail address with which you registered for the Invixium Services or which you specified in an Order Form. Notices will be deemed received within 2 business days in the region of Invixium’s operation.
These Terms were last updated on: August 1, 2021.
