Terms of Service

Effective Date: January 1, 2025

Last Updated: May 23, 2025

This Terms of Service (“Agreement”) is a legal contract between Fyxed Co (“Fyxed” or “Company”), a Texas corporation, and the client or entity agreeing to these terms (“Customer”). By accessing the Fyxed website or using any Fyxed service, Customer agrees to be bound by this Agreement.

Notice: Certain provisions of this Agreement appear in bold or ALL CAPS for emphasis and to ensure they are conspicuous under Texas law (e.g. warranty disclaimers, liability limitations, and arbitration terms).

1. Acceptance and Scope of Services

1.1 Services Provided. Fyxed will provide Customer with access to Fyxed’s financing platform and related services (the “Services”) as specified in an ordering document or service agreement (“Order”). The Services are designed for enterprise commercial real estate applications and are made available on a subscription or usage basis.

1.2 Authority to Bind. Each party represents that it has the full power and authority to enter into and perform this Agreement. If an individual is accepting on behalf of Customer, such individual represents they have authority to bind Customer to these terms.

1.3 Modifications. Fyxed may update these Terms from time to time. Material changes will be communicated to Customer (e.g. via the Services or email) and will not apply retroactively. Continued use of the Services after the effective date of an update constitutes acceptance of the updated Terms.

2. License Grant and Ownership

2.1 License to Use Services. Subject to this Agreement, Fyxed grants Customer a limited, non-exclusive, non-transferable license to access and use the Services during the Term, solely for Customer’s internal business operations. This license is revocable in accordance with this Agreement and does not include any right to sublicense or distribute the Services. Customer’s use of the Services shall adhere to any scope, user limits, or other parameters set forth in the applicable Order.

2.2 Ownership and Reservation of Rights. As between the parties, Fyxed retains all ownership and intellectual property rights in and to the Services, including all software, algorithms, artificial intelligence models, and underlying source code or know-how. All enhancements, modifications, or improvements to the Services (including those that may result from processing Customer Data or feedback) are also the exclusive property of Fyxed. Customer is granted no rights to the Service source code or underlying algorithms. Customer agrees that it obtains only the limited usage rights expressly granted in this Agreement, and no rights of ownership in the Services. Customer’s rights in the Services are limited to those expressly granted, and Fyxed reserves all rights not expressly granted.

2.3 Customer Data. “Customer Data” means any data, content, or materials that Customer (or its authorized users) provides or uploads into the Services. Customer retains ownership of all Customer Data and any proprietary rights therein, and Fyxed does not acquire ownership of Customer Data. For clarity, Customer owns and retains all rights to its inputs into the Service . However, Customer hereby grants Fyxed a worldwide, royalty-free license to host, use, process, copy, and display Customer Data solely as necessary to provide and improve the Services. This includes the right for Fyxed to use Customer Data to develop, train, and enhance Fyxed’s machine learning models and AI algorithms for the purpose of operating, improving, or providing new features within the Services . Fyxed may also utilize third-party service providers and integration partners (e.g. cloud infrastructure or AI sub-processors) to process Customer Data as part of delivering the Services . Fyxed will ensure any such sub-processor is bound by confidentiality and data security obligations no less protective than those herein.

2.4 Software Outputs License. To the extent the Services generate any output, predictions, analyses, or other results based on Customer Data or queries (“Outputs”), Fyxed grants Customer a limited, royalty-free license to use, reproduce, and create derivative works from such Outputs for Customer’s internal business purposes. This Section does not imply or grant Customer any rights to Fyxed’s underlying software, models, or intellectual property used to produce the Outputs, which remain Fyxed’s sole property. Fyxed also retains the right to use any general learnings, know-how, or improvements arising from providing the Services (provided that no confidential Customer Data is disclosed in doing so).

3. Acceptable Use and Restrictions

Customer agrees to use the Services only for lawful purposes and in accordance with this Agreement. Without limiting the foregoing, Customer shall not (and shall not permit any third party to):

Reverse Engineer or Tamper: Attempt to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying algorithms, or trade secrets of the Services . Customer shall not modify, create derivative works of, or copy the Services except as expressly permitted by Fyxed.
Unauthorized Access: Bypass or breach any security or authentication measures of the Services; attempt to gain unauthorized access to the Services or its related systems or networks; or probe, scan, or test the vulnerability of the Services without Fyxed’s prior written consent.
Competitive Use: Use the Services (or any data or Output from the Services) to develop, train, test, or improve any competing product or service, including any artificial intelligence or machine learning systems . For example, Customer shall not use the Services or Fyxed’s content/data to create or enhance an AI model that competes with Fyxed’s offerings . Likewise, Customer may not use the Services for purposes of monitoring the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes without Fyxed’s prior consent.
Misuse of Software System: Use the Services in any manner that misuses the software’s capabilities or causes harm to Fyxed’s AI systems. This includes attempting to input or introduce malicious code or data into the AI, using the AI to generate outputs for unlawful activities, or circumventing any usage limits or filters imposed by Fyxed to prevent abuse of the AI features. Customer must not use the Services to process or input any data that is illegal, defamatory, infringing, or that Customer lacks the right to use.
Compliance with Law: Use the Services in violation of any applicable laws or regulations (including data protection laws, export control laws, and intellectual property laws). Customer is responsible for ensuring that its use of the Services (and the content of Customer Data) complies with all applicable laws and does not violate any third-party rights.

Fyxed reserves the right to monitor Customer’s compliance with the above restrictions (although Fyxed has no affirmative obligation to monitor). In the event Fyxed believes in good faith that Customer’s use of the Service violates the above Acceptable Use provisions, Fyxed may suspend or limit Customer’s access to the Service, and/or request that Customer immediately remedy the violation. Customer understands that these restrictions are critical to protect Fyxed’s proprietary technology and maintain the security and integrity of the Services.

4. Privacy and Data Protection

4.1 Customer Consents and Notices. Customer represents and warrants that it has obtained all necessary consents and provided all required notices for Fyxed to access and process Customer Data as permitted under this Agreement . This includes, if applicable, informing and obtaining consent from any end-users, employees, or third parties whose information is included in Customer Data, in accordance with all relevant privacy laws. Customer’s privacy policy or disclosures (if Customer is collecting personal data from individuals that is later provided to Fyxed) should clearly inform individuals that such data may be shared with service providers like Fyxed for the purposes contemplated hereunder . Customer shall not provide any Customer Data that includes personal data of individuals unless it has the legal right to do so and to authorize Fyxed’s processing as described.

4.2 Use of Customer Data to Improve Services. Customer acknowledges and agrees that Fyxed may use Customer Data and Customer’s usage of the Services to maintain, analyze, and improve the Services and Fyxed’s algorithms and AI models . This may include using aggregated or de-identified portions of Customer Data to improve Service performance, develop new features, train machine learning models, or for other development and improvement purposes. Fyxed’s right to use Customer Data for these purposes is an integral part of the Services offering (and reflects common industry practice of using customer data to “improve the services” via AI training) . However, Fyxed will only use Customer Data for such improvement purposes in compliance with applicable law and with appropriate transparency and consent. Fyxed will maintain a robust privacy policy and abide by its terms, and will not use Customer’s personal data for any new purpose outside the scope of this Agreement without required consent, in order to avoid the kind of concerns raised when companies attempted to use customer content for AI without explicit permission . In the event Fyxed wishes to use Customer Data in a way that materially exceeds the disclosures Customer has consented to, Fyxed will obtain Customer’s consent or offer an opt-out consistent with applicable legal requirements (recognizing the backlash faced by others for using customer data to train AI without clear consent) .

4.3 Data Security. Fyxed will implement and maintain reasonable administrative, technical, and physical safeguards designed to protect the security and confidentiality of Customer Data. In the event of any unauthorized access to Customer Data within Fyxed’s systems (i.e., a data breach), Fyxed will promptly notify Customer as required by law and provide information to assist Customer in meeting any reporting or notice obligations.

4.4 Third-Party Integrations. Customer acknowledges that Fyxed may integrate with or utilize third-party services in the provision of the Services (for example, cloud hosting providers or third-party AI processing services). Fyxed may allow Customer Data to be processed or transmitted via such third-party services solely as necessary for the functioning of the Services . Fyxed will ensure that any third-party sub-processors are subject to confidentiality obligations and will remain responsible for their performance. Any integration with third-party applications (e.g. if the Services interface with a third-party real estate data source or Customer’s other software) will be governed by this Agreement and any additional terms of the integration. Customer is responsible for compliance with any third-party terms if Customer opts to enable an integration that relies on Customer’s account with a third-party service.

4.5 Confidentiality. Each party may disclose to the other certain non-public information regarding its business, products, or services that is designated as confidential or that should reasonably be understood to be confidential given the nature of the information (“Confidential Information”). Customer’s Confidential Information includes Customer Data (except to the extent disclosed for use as permitted in this Agreement), and Fyxed’s Confidential Information includes the Services (including any non-public features or performance information) and any non-public technical or business information about Fyxed’s products. The receiving party agrees to use the same degree of care (not less than a reasonable standard of care) to protect the disclosing party’s Confidential Information as it uses to protect its own confidential information. Confidential Information shall only be used for the purposes of this Agreement and shall not be disclosed to any third party except to employees or contractors who need to know it and are bound by confidentiality obligations at least as protective. Confidential Information does not include information that is or becomes publicly available through no fault of the receiving party, was independently developed without use of the Confidential Information, or is rightfully obtained from a third party without breach of any duty. If the receiving party is required by law or court order to disclose Confidential Information, it shall give prompt notice (if legally permissible) to the discloser and cooperate in any effort to seek protective measures. The obligations in this Section shall survive termination of the Agreement for a period of at least five (5) years (and indefinitely as to any trade secrets).

5. Indemnification

5.1 Customer Indemnification of Fyxed. Customer agrees to indemnify, defend, and hold harmless Fyxed and its affiliates, officers, directors, employees, and agents (“Company Parties”) from and against any and all third-party claims, demands, lawsuits, or proceedings, and all related liabilities, damages, settlements, penalties, fines, or costs (including reasonable attorneys’ fees) (collectively, “Claims”), arising out of or related to:** (a)** Customer’s use or misuse of the Services in violation of this Agreement (including any breach of the restrictions in Section 3 or violation of law in such use) ; (b) any allegation that Customer Data (including Fyxed’s processing or use of Customer Data as contemplated in this Agreement) infringes, misappropriates, or violates the intellectual property or privacy rights of any third party ; or (c) Customer’s breach of any other material obligation, representation, or warranty under this Agreement. In other words, if a third party brings a claim due to Customer’s content or unlawful use of the Services, Customer will bear the responsibility for the defense and any resulting liabilities .

5.2 Indemnification Procedure. Fyxed will promptly notify Customer of any Claim for which indemnification is sought, provided that failure to give timely notice will not relieve Customer’s obligations except to the extent the delay materially prejudices the defense. Customer may assume control of the defense of the Claim with counsel reasonably satisfactory to Fyxed, provided that Fyxed may participate in the defense with its own counsel at its own expense. Customer shall not settle any Claim without Fyxed’s prior written consent if the settlement would impose liability or admission of fault on Fyxed or require any non-monetary relief (such consent not to be unreasonably withheld). If Customer fails to promptly assume the defense, Fyxed may do so and Customer shall reimburse all reasonable costs incurred. This Section states the entire obligation of Customer and the exclusive remedy of the Company Parties with respect to any third-party claims brought against any of the Company Parties due to the acts or omissions of Customer.

5.3 Fyxed Indemnification (Intellectual Property Warranty). Fyxed strives to avoid infringing any third-party rights. If a third party alleges that the Services, as provided by Fyxed and used by Customer in accordance with this Agreement, infringe a U.S. patent, copyright, or trademark of that third party, Fyxed will indemnify and defend Customer against that claim and pay any final court-awarded damages or settlements approved by Fyxed, provided that Customer promptly notifies Fyxed of the claim, Fyxed controls the defense (with Customer’s reasonable cooperation), and the claim does not arise from Customer Data or modifications or combinations not provided by Fyxed. If the Services are found to infringe, Fyxed may, at its discretion, obtain the right for Customer to continue using them, modify them to be non-infringing, or terminate the affected Services and refund any prepaid fees for unused Service. This Section states Fyxed’s sole liability for intellectual property infringement. (This clause is provided as an industry best practice for enterprise contracts, wherein software vendors often offer indemnity for intellectual property infringement . Fyxed includes it here to align with enterprise SaaS norms, even as this Agreement overall remains favorable to Fyxed.)

6. Warranties and Disclaimers

6.1 Mutual Warranty. Each party represents and warrants that it has full corporate power and authority to enter into this Agreement and that this Agreement constitutes a legal, valid, and binding obligation when agreed to. Customer further warrants that it will use the Services in compliance with all applicable laws and regulations, and in accordance with any provided documentation or use guidelines.

6.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES (INCLUDING ANY AI FEATURES AND OUTPUTS) ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND DEFECTS WITHOUT ANY WARRANTY WHATSOEVER . Fyxed MAKES NO PROMISE OR GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR MEET CUSTOMER’S REQUIREMENTS, AND Fyxed SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT . Customer acknowledges that the Services involve complex software and AI technologies; Fyxed does not guarantee the accuracy or reliability of any outputs or results generated by the AI systems, and Customer is solely responsible for any decisions or actions taken based on the Services’ outputs. NO ADVICE OR INFORMATION (WHETHER ORAL OR WRITTEN) OBTAINED BY CUSTOMER FROM Fyxed OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. Fyxed does not warrant that the Services will operate in combination with any other hardware, software, or data not provided by Fyxed, or that any errors in the Services can or will be corrected. Customer assumes all responsibility for determining whether the Services or outputs are suitable for Customer’s purposes.

The parties acknowledge that the above disclaimers are an essential part of this Agreement, and an important factor in allocating risk between the parties. In jurisdictions that do not allow the exclusion of certain warranties, some of the above disclaimers may not apply solely to the extent prohibited by law.

7. LIMITATIONS OF LIABILITY

7.1 Indirect Damages Waiver. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Fyxed NOR ITS AFFILIATES OR SUPPLIERS SHALL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND , UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This exclusion includes any damages for lost profits, lost revenue, lost business opportunities, loss of data, business interruption, or procurement of substitute services . Customer agrees that such damages are waived even if any remedy fails of its essential purpose. (In plain terms, Fyxed will not be responsible for losses that are not a direct result of its breach, especially unforeseeable or downstream losses .)

7.2 Liability Cap. **TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL CUMULATIVE LIABILITY OF Fyxed AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING ANY LIABILITY FOR DIRECT DAMAGES) SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO Fyxed FOR THE SERVICES IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM . If no fees were paid (for example, during a free trial), Fyxed’s total liability shall not exceed US $100. The existence of multiple claims or events will not enlarge this cap. Customer acknowledges that this liability cap is a bargained-for element of the agreement and that, absent this cap, the economic terms of this Agreement would be different .

7.3 Exceptions & Texas Carve-Out. Nothing in this Agreement is intended to exclude or limit liability for: (a) a party’s gross negligence or willful misconduct ; (b) death or bodily injury to the extent caused by Fyxed’s negligence or willful misconduct (to the extent such liabilities cannot be limited under Texas law) ; or (c) any liability which cannot be excluded by law. Additionally, the above limitations of liability do not apply to Customer’s payment obligations or Customer’s liability arising from its indemnification obligations, violation of Fyxed’s intellectual property rights, or breach of confidentiality. In those instances, Customer may be fully liable for all direct losses and damages incurred (including third-party claims).

7.4 Acknowledgment. The limitations of liability and exclusions of damages in this Section 7 are agreed by the parties to apply regardless of the form of action, whether in contract, tort, strict liability, or otherwise, and reflect an agreed allocation of risk between the parties in light of the enterprise-scale risks involved. The fees charged for the Services would be significantly higher if Fyxed were to assume a greater amount of risk. Both parties acknowledge that they have read and understood this Section, and each has had the opportunity to seek legal counsel regarding its meaning. These limitations shall apply even if any limited remedy herein is found to have failed of its essential purpose.

8. Term and Termination

8.1 Term. This Agreement commences on the Effective Date and continues for the subscription term specified in the Order (the “Term”). If no term is specified, the default term is one (1) year from the Effective Date. Subscriptions will automatically renew for additional one-year periods unless either party gives notice of non-renewal at least 30 days before the end of the then-current term.

8.2 Termination for Cause. Either party may terminate this Agreement (including any or all Orders) immediately upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach. Additionally, Fyxed may suspend or terminate the Services immediately if Customer breaches Section 3 (Acceptable Use and Restrictions) or if continued provision of the Services would violate law or subject Fyxed to legal liability.

8.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) all licenses granted to Customer hereunder will cease, and Customer shall immediately stop using the Services; (b) within 30 days, each party will return or destroy (at the disclosing party’s election) the Confidential Information of the other party in its possession; and (c) if Customer requests in writing within 30 days after termination, Fyxed will permit Customer to export or download its Customer Data from the Service, or will provide a copy of Customer Data in a standard format. After such 30-day period, Fyxed may delete Customer Data from its systems, subject to any retention obligations under law. Termination of this Agreement will not relieve Customer of its obligation to pay any fees accrued or owed prior to the effective date of termination. Sections 2.2, 2.3, 2.4, 3, 4.5, 5, 6.2, 7, 8.3, 9, and 10 (and any other provision which by its nature should survive) shall survive termination or expiration of this Agreement.

9. Governing Law and Venue

9.1 Governing Law. This Agreement and any dispute arising out of or relating to it shall be governed by the laws of the State of Texas, U.S.A., without regard to its conflict of law principles . The parties specifically agree that the Texas Uniform Computer Information Transactions Act (UCITA), if adopted, and the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. This choice of Texas law reflects the parties’ agreement given Fyxed’s Texas location and the interest in uniform rules for enforcement.

9.2 Venue for Litigation. Subject to the arbitration clause below, any legal suit, action, or proceeding that is permitted to be brought in court (as opposed to arbitration) under this Agreement shall be instituted exclusively in the state or federal courts located in the State of Texas (preferably in the county where Fyxed’s principal place of business is located, or if none specified, in Houston, Texas) . Both parties irrevocably submit to the exclusive jurisdiction of such courts and waive any objection (including any objection based on inconvenience of forum) to the bringing of any such action in those courts . The parties agree that such courts have personal jurisdiction over them for this purpose.

9.3 Injunctive Relief. Notwithstanding anything to the contrary, either party may seek urgent injunctive or equitable relief (such as a temporary restraining order or preliminary injunction) in a court of competent jurisdiction to prevent actual or threatened misappropriation of intellectual property or breach of confidentiality, without first having to pursue arbitration. Specifically, Fyxed may apply to a Texas court for injunctive relief to stop any unauthorized use of the Services or infringement of Fyxed’s intellectual property rights, and Customer may do likewise to protect its confidential information or data. Seeking such interim relief in court will not waive the obligation to arbitrate any claims for damages or other remedies. Any such court action shall be limited to seeking injunctive relief and not monetary damages, which remain subject to the limitations and dispute resolution procedures herein.

9.4 Attorney’s Fees. In any dispute arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs from the other party, in addition to any other relief awarded. This entitlement applies to arbitration proceedings, trial, and on any appeal or petition.

9.5 Limitation on Claims. ANY CAUSE OF ACTION OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED BY CUSTOMER WITHIN ONE (1) YEAR AFTER THE CLAIM ACCRUES, OTHERWISE SUCH CLAIM IS PERMANENTLY BARRED . This limitation period is a condition precedent to any legal action. (This provision does not apply to Fyxed’s claims for unpaid fees or to either party’s claims for indemnification or intellectual property infringement, which shall be subject to the applicable statutes of limitation under law.) Customer and Fyxed agree that this 1-year period is reasonable given the business context and that it will promote prompt resolution of any disputes.

10. Dispute Resolution; Arbitration

PLEASE READ THIS SECTION CAREFULLY. IT REQUIRES THE USE OF BINDING ARBITRATION (AND WAIVER OF JURY TRIAL AND CLASS ACTIONS) TO RESOLVE DISPUTES. By agreeing to these terms, Customer agrees to resolve any dispute or claim arising out of or relating to this Agreement or the Services through final and binding arbitration on an individual basis, rather than through litigation in court . Customer is thus waiving any right to a jury trial and to participate in any class or collective action for such disputes , except as expressly provided below. This provision is a critical part of the parties’ agreement to efficiently resolve any legal issues. The parties further agree as follows:

Informal Resolution and Mediation. In the event of any dispute, claim, or controversy arising between the parties, they shall first attempt in good faith to resolve the issue informally. If direct discussions do not resolve the dispute, the parties agree to consider non-binding mediation. Either party may initiate mediation by providing written notice to the other party, and the parties will jointly select an impartial mediator in Texas. Each party shall attend at least one mediation session in good faith. If mediation is not mutually desired or does not result in a settlement within 30 days of the mediation request (or a longer period if the parties agree), either party may proceed to initiate arbitration as described below.
Arbitration Agreement. Except for the exclusions noted in Section 9.3 (Injunctive Relief) and below, any dispute, claim, or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, or interpretation thereof, or to the use of the Services (including all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) shall be determined by binding arbitration in accordance with this Section. The arbitration shall be administered by the American Arbitration Association (“AAA”) and, given the enterprise nature of the relationship, the AAA’s Commercial Arbitration Rules (or other applicable rules as agreed) shall apply, except as modified herein. The Federal Arbitration Act (9 U.S.C. §1 et seq.) will govern the interpretation and enforcement of this arbitration agreement and any arbitration award . The seat or legal place of arbitration shall be in the State of Texas, and absent agreement otherwise, the arbitration hearing shall occur in a location in Texas mutually convenient to the parties (or if they cannot agree, as determined by the arbitrator). The arbitration will be conducted in English by a single arbitrator selected by mutual agreement of the parties or, failing agreement, under AAA rules. The arbitrator shall be a neutral licensed attorney or retired judge with experience in commercial contract disputes and, if feasible, experience with software or technology agreements.
Procedure and Authority. The arbitrator is authorized to award any relief that a court of law could provide (including monetary damages and, to the extent permitted by this Agreement, injunctive relief) . The arbitrator shall follow the applicable law (and the terms of this Agreement) and can grant summary disposition or motions to dismiss/clarify issues as appropriate. The arbitrator shall issue a written reasoned award explaining the decision and any calculations. The award shall be final and binding on the parties, and judgment on the award may be entered in any court having jurisdiction. The parties agree the arbitration shall be confidential; neither party will disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the other, except as required by law or to enforce the award.
Fees and Costs. The parties shall share the AAA filing and arbitrator fees equally, unless otherwise required by law or AAA rules. Each party shall bear its own attorneys’ fees and costs, except that the arbitrator may award the prevailing party its reasonable attorneys’ fees and costs, if the arbitrator determines that an award of fees is appropriate (especially in a case of a clear prevailing party on the major issues). The arbitrator may also require one party to reimburse the other’s share of the arbitration fees if it is determined that the claim or defense was frivolous or brought in bad faith.
Class Action Waiver. The parties agree that all claims are to be brought in the parties’ individual capacities only, and NOT as a plaintiff or class member in any purported class, collective, or representative proceeding. The arbitrator may not consolidate more than one person’s claims or preside over any form of a representative or class proceeding . In short, the arbitrator can only decide an individual dispute between Fyxed and Customer. If this class action waiver is found to be unenforceable or unlawful, then any class/representative claims shall be severed from the arbitration and litigated in court (per Section 9.2), and the remaining individual claims will proceed in arbitration.
Opt-Out Right. Because this arbitration clause is important, we want to ensure Customer knowingly consents. If Customer does not wish to be bound by this arbitration agreement, Customer must notify Fyxed in writing within 30 days of first accepting this Agreement, stating clearly that Customer opts out of arbitration. An opt-out notice must be mailed to Fyxed’s legal department at Fyxed’s address of record (or emailed to a specified legal contact). If Customer opts out, Section 10 will not apply, and any disputes will be resolved in court as provided in Section 9.2. Opt-out affects only Customer; any other customer or later acceptance of updated terms will be separately governed by an arbitration clause unless they also opt out. (Failure to opt out within 30 days will be deemed consent to this arbitration agreement.)
Exceptions to Arbitration. Notwithstanding the above, either party may choose to pursue a claim in small claims court if the claim qualifies and so long as the matter remains in such court on an individual (non-class) basis. Additionally, as noted in Section 9.3, either party may seek injunctive relief in court for intellectual property or confidentiality violations, without violating this arbitration agreement . Such an action shall be limited to seeking appropriate provisional relief until the arbitration award is rendered or the dispute is otherwise resolved.

10.1 Severability of Arbitration Terms. If any portion of this arbitration provision (other than the class action waiver clause) is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this Section 10. Any invalid or unenforceable portion shall be severed, and the rest of the arbitration agreement shall be enforced. If the class action waiver in this Section is found unenforceable in a particular case, the entirety of this arbitration agreement shall be void for that case only, and the dispute will be decided in court. The terms of this Section 10 shall survive termination of the Agreement.

11. General Provisions

11.1 Entire Agreement. This Agreement (along with any referenced exhibits, addenda or Order documents and any applicable Privacy Policy or Data Processing Addendum) constitutes the entire agreement between Customer and Fyxed with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals or understandings, whether written or oral, relating to the subject matter. No terms or conditions stated in a Customer purchase order or other ordering document (other than Order forms issued by Fyxed) shall be incorporated into or form any part of this Agreement, and any such terms are hereby rejected. The parties agree that any amendments or modifications to this Agreement must be in writing and signed (or acknowledged electronically) by both parties, unless otherwise expressly provided herein.

11.2 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court or arbitrator of competent jurisdiction, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the invalidity or unenforceability of that provision shall not affect the other provisions of this Agreement which shall remain in full force and effect . In the event a provision is deemed invalid or unenforceable, the parties agree to negotiate in good faith a valid, enforceable substitute provision that most nearly reflects the parties’ intent in entering into this Agreement.

11.3 Waiver. No waiver of any provision or right under this Agreement shall be effective unless in writing and signed by the party against whom the waiver is asserted. A waiver by either party of any breach of this Agreement shall not operate as a waiver of any other breach, whether similar or different in nature. The failure or delay of either party to enforce any term of this Agreement shall not be construed as a waiver of that term or any other term.

11.4 Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without Fyxed’s prior written consent, and any attempt to do so without consent will be null and void. Fyxed may assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement shall inure to the benefit of and be binding upon the parties, their successors and permitted assigns.

11.5 No Third-Party Beneficiaries. This Agreement is made solely for the benefit of the parties and their respective permitted successors and assigns. Nothing in this Agreement confers any rights or remedies on any person or entity other than Fyxed and Customer (and Fyxed’s affiliates to the extent expressly stated). There are no third-party beneficiaries to this Agreement, and no person other than the signatories hereto may enforce any term of this Agreement.

11.6 Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, franchise, or agency relationship between Fyxed and Customer. Neither party has any authority to bind the other in any way.

11.7 Force Majeure. Neither party shall be liable for any delay or failure to perform its obligations (excluding payment obligations) under this Agreement due to events beyond its reasonable control, such as acts of God, natural disasters, terrorism, labor disputes, government actions, internet or utility failures, or other force majeure events. The impacted party will give notice to the other and make reasonable efforts to resume performance as soon as practicable.

11.8 Notices. Notices under this Agreement shall be in writing and shall be deemed given when delivered personally or by internationally recognized courier service to the addresses of the parties set forth in the Order or their principal place of business, or when sent by email to the designated notice email address of the other party (provided no bounce-back is received). Notices to Fyxed should be sent to its legal department or email (as provided by Fyxed), and notices to Customer will be sent to the contact information on file. It is the responsibility of each party to update the other with any change in contact information.

Email: compliance@apmhelp.com

Mailing Address: Fyxed, Attn: Privacy Compliance

PO Box 582

Houston, TX 77001

11.9 Export Compliance. Customer shall not permit any users to access or use the Services in violation of any U.S. export control or economic sanctions law or regulation. Customer represents that it is not named on any U.S. government denied-party list and that it will not provide access to the Services to any entity or individual in a U.S.-embargoed country or otherwise in violation of export laws.

11.10 Compliance with Laws. Each party will comply with all laws and regulations applicable to its performance under this Agreement. Customer is responsible for ensuring that its use of the Services (including any Customer Data) is in compliance with all applicable laws, including but not limited to data privacy laws, intellectual property laws, and regulations applicable to Customer’s industry. Fyxed will comply with laws applicable to Fyxed as a provider of the Services, including applicable privacy and security laws in its role as a service provider.

11.11 Enterprise Negotiation. The parties acknowledge that Customer is a business entity (not an individual consumer) and that the terms and conditions of this Agreement, including limitations of liability and dispute resolution, are negotiated business terms reflecting a fair allocation of risk. Both parties had the opportunity to negotiate these terms or make adjustments based on their requirements and, as such, agree that no term is unconscionable or should be deemed unenforceable in light of the parties’ respective sophistication and bargaining positions. This Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any provisions.