THIS 6 BRIX END USER LICENSE AGREEMENT (the “Agreement“) is a binding agreement between 6 Brix, LLC, a Mississippi limited liability company (the “Company“, “we” or “us“), and you, the user (“End User” or “you“). This Agreement governs your use of Company’s 6 Brix application on the iOS or Android platform (including all related documentation the “Application“). This Agreement is concluded between you and Company only and not with Apple or Google, as applicable, and Company is solely responsible for the Application and the content thereof. The Application is licensed to you, not sold to you.
WHEN YOU DOWNLOAD AND USE THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS OR CANNOT MAKE THE ACKNOWLEDGEMENT OR REPRESENTATION REQUIRED, DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION. IF YOU HAVE ALREADY DOWNLOADED, INSTALLED OR USED THE APPLICATION AND YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, IMMEDIATELY STOP USING THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
1. License Grant. Subject to the acknowledgement, representation, and agreement set forth in the paragraph above, and the other terms and conditions of this Agreement, we grant you a limited, non-exclusive, and non-transferable license to download, install, and use the Application for your personal, non-commercial use in accordance with the Application’s documentation on a single mobile device owned or otherwise controlled by you (the “Device“); provided, however, that the iOS version of the Application may be accessed and used by other accounts associated with you via Apple Family Sharing or volume purchasing. If you use the iOS version of the Application, the license granted herein for the Application is limited to your use of the Application on Apple-branded products only that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions (the “Apple Media Terms“), including, without limitation, the Apple Media Terms pertaining to Subscriptions.
2. License Restrictions. End User shall not:
a. copy the Application, except as expressly permitted by this Agreement;
b. modify, translate, adapt, or otherwise create derivative works of or improvements to the Application, whether or not protectable under any category of intellectual property protection, including, but not limited to, patent and copyright protection;
c. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
d. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights (collectively, “Intellectual Property Rights“) notices from or on the Application or any copy thereof;
e. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make the Application, of any feature or functionality of the Application, available to any third party, for any reason, including by making the Application available on a network where it is capable of being used or accessed by other devices or more than one device at a time;
f. remove, disable, circumvent, or otherwise create or implement any workaround to, any copy protection, rights management, or security features in or protecting the Application;
g. use the Application in, or in association with, the design, construction, maintenance, scheduling, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management system; safety-critical applications, including medical or life-support systems; vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments.
3. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and is not sold, to you. You do not acquire under this Agreement, by use of the Application or otherwise, any ownership interest in the Application, or any other rights thereto, other than to use the Application in accordance with the license granted to you under this Agreement, subject to all terms, conditions, and restrictions set forth herein. Company reserves and shall retain its entire right, title, and interest in and to the Application, including all Intellectual Property Rights, except as expressly granted to you in this Agreement for the period you pay for use of the Application.
4. Collection and Use of Your Information. You acknowledge that when you download, install, or use the Application, we may use automatic means to collect and use information about your use of the Application and technical data and related information, including, without limitation, technical information about your Device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any ) related to the Application. You agree that Company may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
5. Updates; Maintenance and Support.
a. Updates. We may, from time to time in our sole discretion, develop and provide Application updates, which may include upgrades, bug fixes, patches, and other error corrections or new features (collectively, including related documentation, “Updates“). Updates may also modify or delete entirely certain Application features or functionality. You agree that we have no obligation to provide Updates or to continue to provide or enable any Application features or functionality. Based on your Device settings, when your Device is connected to the internet, either:
i. the Application will automatically download and install available Updates; or
ii. you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates, and you acknowledge and agree that, should you fail to do so, the Application, or features or functions thereof, may not properly operate. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
b. Maintenance and Support. Company is solely responsible for providing any maintenance and support services with respect to the Application, as specified in this Agreement, or as required under applicable law. You and Company each acknowledge and agree that no third party, including Apple and Google, has any obligation whatsoever to furnish any maintenance and support services with respect to the Application. Support requests may be submitted to Company by emailing your request to info@6Brix.app.
6. Third Party Materials and Terms of Agreement.
a. Third Party Materials. The Application may display, include, or make available third party content (including data, information, applications, and other products, services, or materials) or provide links to or otherwise enable access to Company’s and/or third party websites or services, including through third party advertising (collectively and individually, “Third Party Materials“). You acknowledge and agree that we have no responsibility for Third Party Materials, including for examining or evaluating their content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. We do not assume, and will not have any liability or responsibility to you or any other person or entity for, any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to the third party’s terms and conditions.
You shall not use the Third Party Materials in any manner that is inconsistent with the terms of this Agreement or that infringes the intellectual property rights of Company or any third party. You agree not to use Third Party Materials to harass, abuse, stalk, threaten, or defame any person or entity, and that Company is not responsible for any such use. Third Party Materials may not be available in all languages or in your home country and may not be appropriate or available for use in any particular location. To the extent you choose to use such Third Party Materials, you are solely responsible for compliance with all applicable laws. Company reserves the right to change, suspend, remove, disable, or impose access restrictions or limits on any Third Party Materials at any time without notice or liability to you.
b. Third Party Terms of Agreement. You must comply with all applicable third party terms of agreement, and shall not be in violation thereof, when using the Application.
7. Auto-renewing Subscriptions. The Application (6 Brix) is provided on a subscription basis. You may elect to purchase a monthly subscription at the cost of US$ 3.99 per month, or you may purchase an annual (12-month) subscription at the cost of US$ 36.00 per year. A 7-day free trial period will be available to all users prior to initiating any subscription. Your subscription will auto-renew at the end of the applicable subscription period unless you cancel your subscription before the end of the then-current subscription period. If your cancellation is not received prior to the end of the applicable subscription period, your subscription will automatically renew. By default, your subscription will be renewed for the same interval as your original subscription. In other words, if you purchase a one-month subscription to 6 Brix, you will be charged each month for access for another one-month period, and if you purchase an annual subscription to 6 Brix, you will be charged each year for access for another 12-month period. The date for the automatic renewal is based on the date of your original purchase (following the expiration of the free trial period) and cannot be changed. All collections of payments and applicable taxes, and the initiation of the original subscription and any renewals or cancellations, will be controlled and processed by and subject to the terms and conditions of the app store from which you purchase the Application. To view, manage, or cancel your subscription to the Application, visit your account for the app store from which you purchase the Application.
8. Term and Termination.
a. The term of this Agreement begins when you download the Application and will continue in effect until terminated by you or us as set forth in this Article 8.
b. You may terminate this Agreement by cancelling your subscription, if any, and deleting the Application and all copies thereof from your Device.
c. We may terminate this Agreement at any time, for any reason, with or without notice, in our sole and absolute discretion. In addition, this Agreement will terminate immediately and automatically without notice to you if you cancel any subscription you have to the Application or violate any of the terms and conditions of this Agreement.
d. Upon termination:
i. all rights granted to you under this Agreement will also terminate; and
ii. you must immediately cease all use of the Application and delete all copies of the Application from your Device and account.
e. Termination will not limit any of our rights or remedies at law or in equity.
9. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK. THE APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND DEFECTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES, SUCCESSORS, AND ASSIGNS, AND OUR AND THEIR RESPECTIVE LICENSORS AND SERVICES PROVIDERS, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES OF ALL OF THE FOREGOING, EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION AND ANY SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION OF THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND, THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES; OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS 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 OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
TO THE EXTENT NOT EFFECTIVELY DISCLAIMED HEREIN, COMPANY SHALL BE SOLELY RESPONSIBLE FOR ANY PRODUCT WARRANTIES, EXPRESS OR IMPLIED. IN THE EVENT OF ANY FAILURE OF THE APPLICATION TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY APPLE, GOOGLE, OR THE OTHER THIRD-PARTY APPLICATION DISTRIBUTOR FROM WHICH YOU ACQUIRED THE APPLICATION, AS APPLICABLE, FOR A FULL REFUND OF THE PURCHASE PRICE YOU PAID FOR THE APPLICATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER APPLE, GOOGLE, NOR ANY THIRD PARTY APPLICATION DISTRIBUTOR WILL HAVE ANY OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS, OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY WILL BE COMPANY’S SOLE RESPONSIBILITY.
10. Product Claims. You and we acknowledge the Company, not Apple, Google, or any other third-party distributor of the Application, is responsible for addressing any claims you or any third party may have relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with any use by the Application of Apple’s HealthKit and HomeKit frameworks.
11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR OUR AFFILIATES, SUCCESSORS, OR ASSIGNS, OR ANY OF OUR OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES OF ALL THE FOREGOING, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES, HOWEVER CAUSED, INCLUDING FOR:
a. PERSONAL INJURY, PROPERTY DAMAGE, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR COMPUTER FAILURE OR MALFUNCTION; OR
b. DAMAGES OR LOSSES IN AMOUNTS THAT, IN THE AGGREGATE, EXCEED FIFTY US DOLLARS ($50.00) OR THE AMOUNT ACTUALLY PAID BY YOU TO US FOR USE OF THE APPLICATION DURING THE 12-MONTH PERIOD PRIOR TO THE CAUSE OF ACTION, WHICHEVER IS GREATER (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY).
THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. WE SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND OUR REASONABLE CONTROL.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER THE DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF THE DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
12. Indemnification. You agree to indemnify, defend, and hold harmless us, our affiliates, successors, and assigns, and any of our or their respective licensors or services providers, and the officers, directors, employees, agents, and representatives of all of the foregoing, from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, and expenses of whatever kind, including, without limitation attorneys’ fees, court costs, costs of investigation, and expert witness fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement. You also agree that we assume no responsibility for any content you post, upload, submit or make available to us, other users of the Application or the public on or through the Application.
13. Intellectual Property Rights. You and Company expressly acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Company, not Apple or Google, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
14. Export Regulation. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Application for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
15. U.S. Government Rights. The Application and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
16. Severability. If any provision of this Agreement is held to be illegal or unenforceable under any applicable law, the provision will be amended to comply with applicable law and to achieve, as closely as possible, the effect of the original provision. If the illegal or unenforceable provision cannot be amended in any way to bring it into compliance with applicable law, the provision shall be stricken in its entirety from the Agreement. In the event of any amendment or deletion of Agreement provisions, all other provisions of this Agreement will continue in full force and effect, and the original intent of the Agreement shall govern to the maximum extent possible.
17. Governing Law; Arbitration. Except to the extent provided in the following paragraph, this Agreement is governed by and construed in accordance with the internal laws of the State of Mississippi, without regard to its conflict of law principles or rules or those of any other state. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any court of competent jurisdiction without the posting of a bond), any dispute arising under this Agreement or otherwise in connection with the Application shall be finally settled in accordance with the Comprehensive Arbitration Rules (the “Rules“) of the Judicial Arbitration and Mediation Service, Inc. (JAMS) by one arbitrator appointed in accordance with such Rules. Notwithstanding the foregoing, disputes involving claims in excess of TEN THOUSAND DOLLARS ($10,000) shall be heard by a panel of three arbitrators appointed in accordance with the Rules. Arbitrations shall take place in Jackson, Mississippi, in the English language, and the arbitral decision may be enforced in any court of competent jurisdiction. The prevailing party in any action or proceeding to enforce this Agreement or otherwise in connection with the Application shall be entitled to costs and attorney’s fees.
If (a) you are not a U.S. citizen; (b) you do not reside in the U.S.; (c) you are not accessing the Application from the U.S.; and (d) you are a citizen of one of the countries identified below, you hereby agree that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and you hereby irrevocably submit to the non-exclusive jurisdiction of the courts located in the state, province, or country identified below whose law governs:
If you are a citizen of any European Union country or Switzerland, Norway, or Iceland, the governing law and forum shall be the laws and courts of your usual place of residence.
The United Nations Convention on the International Sale of Goods is expressly excluded from and shall not apply to this Agreement.
18. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, THE CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED NOTWITHSTANDING ANY OTHERWISE APPLICABLE LIMITATION PROVISION OF APPLICABLE LAW, WHICH YOU HEREBY EXPRESSLY WAIVE.
20. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
21. Third Party Beneficiary. You and Company acknowledge and agree that Apple and Apple’s subsidiaries and Google and Google’s subsidiaries, as applicable, are third party beneficiaries of this Agreement and that, upon your acceptance of the terms and conditions of this Agreement, Apple or Google, as the case may be, will have the rights (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof.
22. Interpretation. For purposes of this Agreement, (a) the words, “include”, “includes”, and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein”, “hereof”, “hereby”, “hereto”, and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to an agreement, instrument, or other document means the agreement, instrument, or other document as amended, supplemented, and modified to the extent permitted by the provisions thereof; and (y) to a law means the law as amended and includes any successor legislation thereto and any regulations and rules promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting the instrument or causing the instrument to be drafted. The agreements, instruments, or other documents referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
23. Developer Name and Address. The Application was developed by 6 Brix LLC, a Mississippi USA limited liability company. Any questions, complaints, or claims with respect to the Application should be directed to 6 Brix at info@6Brix.app or P.O. Box 458, Madison, Mississippi 39130.
REV. 13 APRIL 2021