END USER LICENSE AGREEMENT
Welcome to Phas3!
Phas3, LLC (“Phas3”, “we”, “ us”, or “our”) provides cardiac rehabilitation services to individuals through smartphone technology with the aim of tackling inconvenience and cost associated with disease recovery.
This End User License Agreement has been prepared as a legally binding license agreement that conditions your use of our website(s) (“Site”), our heartrate tracking device(s) (“Hardware”) and our mobile application(s) (“App”) (our Site, Hardware, and App, collectively, the “ Service”). This Agreement applies to your use of any page, section, service, or feature of our Service. The terms and conditions, together with all updates, supplements, additional terms and any of our rules and policies (collectively, the “Agreement”) are applicable to our Service, including any versions optimized for viewing on a mobile device or any version that is made available on third-party websites with our authorization, and all other interactive features, services, and communications provided to you through our Service.
BY ACCESSING OUR SERVICE, YOU ARE ACCEPTING THIS AGREEMENT. WE RESERVE THE RIGHT TO MODIFY OR AMEND THIS AGREEMENT FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR SERVICE FOLLOWING THE POSTING OF CHANGES TO THIS AGREEMENT WILL MEAN YOU ACCEPT THOSE CHANGES. UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO THIS AGREEMENT WILL APPLY RETROACTIVELY.
1. YOUR LICENSE TO ACCESS OUR SERVICE AND PHAS3 CONTENT.
1.1 Grant of License . Conditioned on your compliance with this Section 1 (Your License to Access our Service and Phas3 Content) and Section 2 (Your Responsibilities), Section 3 (Your Content), and Section 4 (Access through Mobile Devices) of this Agreement, Phas3 hereby grants you a limited, revocable, non-exclusive, non-transferable license to access and use our Service for your individual rehabilitative, educational, or other limited, cardiac health-related purpose in connection with, and under the direction of, a medical treatment provider. Any use of our Service in excess of this license is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use our Service.
1.3 Phas3 Content . All Phas3 Content (“Phas3 Content” includes, but is not limited to, written content prepared and posted by us, and the design, layout, look, appearance, and graphics) on our Service, as well as our Marks, defined in Section 7 (Our Marks), contained on our Service are owned by or licensed to us and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. We reserve all rights not expressly granted in, and to, our Service and the Phas3 Content on our Service.
2 YOUR RESPONSIBILITIES .
2.1 You agree that when using our Service, you will not:
(a) Delete, modify, hack, or attempt to change or alter any of the Phas3 Content or notices on our Service;
(b) Use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of our Service, servers, or networks connected to our Service or take any other action that interferes with any other person’s use of Service;
(c) Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on our Service for any reason;
(d) Copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which our Service is based;
(e) Introduce into our Service any virus, rogue program, trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to disable, erase, or otherwise harm our Service or Phas3 Content, or perform any such actions;
(f) Introduce into our Service any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person;
(g) Use any Phas3 Content made available through our Service in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
(h) Access or attempt to access any other person’s information or content;
(i) Send any chain letters, junk mail, unauthorized e-mail, or advertisements;
(j) Encourage any illegal activities, or post anything that is obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity;
(k) Decrypt, transfer, frame, display, or translate any part of our Service;
(l) Connect to or access any Phas3 computer system or network without authorization; or
(m) Use the information in our Service to create or sell a similar service or similar information.
. Any information, text, images, messages, feedback,
files, and/or other materials you transmit through our Service
(collectively, “Your Content”) are your sole
responsibility. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED
TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, ANY OF YOUR CONTENT. THE
RESULTS OF ANY ACTIONS YOU TAKE BASED ON YOUR CONTENT OR OTHER CONTENT YOU
FIND ON OUR SERVICE ARE SOLELY YOUR RESPONSIBILITY. Under no circumstances
will we be liable in any way for Your Content or for any loss or damage of
any kind incurred as a result of the transmission of any of Your Content
through our Service.
Our Rights Related to Your Content
. We do not pre-screen or approve Your Content and we have
no obligation to monitor Your Content. However, we reserve the right to
review, modify, monitor, distribute, remove, or delete any of Your Content
at our sole discretion. We reserve the right at all times and in our sole
discretion to disclose any information as we deem necessary to satisfy any
applicable law, regulation, legal process, or governmental request or to
edit, refuse to post, or to remove any information or materials, in whole
or in part.
3.3 Prohibitions . Without limiting the generality of the foregoing, with respect to Your Content, all of the following transmissions are prohibited:
(a) Content that is obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity.
(b) Messages, data, code, or software that would violate our, or any third party, proprietary or intellectual property rights, including unauthorized copyright text, images, programs, trade secrets, or other confidential proprietary information, or use trademarks or service marks in an infringing fashion.
(c) Photos or video of any third party without express, written permission. By uploading, transmitting, or posting any photo or video on or through our Service, you represent and warrant that you have express, written permission from all persons appearing in the media for all potential uses by Phas3 of such media.
(d) Advertisements or solicitations of business, chain letters, pyramid schemes, or bulk e-mail lists or upload, post, or transmit the same posting more than once.
(e) Commercial advertisements or solicitations for conduct or services that would in any manner constitute threatening, harassing, harmful, or abusive behavior.
(f) Materials that are fraudulent or involve the sale of counterfeit or stolen items.
(g) Materials that could cause us to violate any applicable law, statute, ordinance, or regulation.
3.4 License Grant to Your Content . By uploading, transmitting, or posting Your Content, you grant to us a perpetual, non-exclusive, worldwide, royalty-free license to use, copy, print, display, reproduce, modify, edit, publish, post, transmit, and distribute Your Content, subject to applicable law, in its entirety or in part. YOU AGREE TO INDEMNIFY PHAS3, ITS AFFILIATES AND BUSINESS PARTNERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS FROM ANY AND ALL CLAIMS, DAMAGES, EXPENSES, FEES, LIABILITIES, AND LOSSES, INCLUDING ATTORNEYS’ FEES, ARISING FROM ANY SUCH MATERIALS OR ANY FAILURE TO COMPLY WITH THIS SECTION.
4 ACCESS THROUGH MOBILE DEVICES .
4.1 Mobile Use . Your contract with your mobile network provider (“ Mobile Provider”) will continue to apply when accessing or using our App or Site on your mobile, handheld device (“ Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using our App or Site, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.
4.2 Additional Terms Applicable on the Android Market/Google Play . Phas3 and you both agree and acknowledge that neither Google Inc., nor any of its subsidiaries or affiliates (“ Google”), are a party to this Agreement, and you will look to Phas3 for any recourse, and not Google. You agree to be bound by the then-current Android Market Terms of Service as found on Google’s websites (located at http://www.google.com/mobile/android/market-tos.html). You acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to our App. To the extent there is a conflict between any of the terms in this Agreement, and those set forth in the Android Market Terms of Service, the Android Market Terms of Service will prevail and govern.
4.3 Additional Terms Applicable to iOS Devices . The following terms only apply if you install, access, or use our App on any device that contains the iOS mobile operating system developed by Apple Inc. (“Apple”). If you use our App on an Apple-manufactured device, and if there is any conflict between the terms in this Section and other terms in this Agreement, the terms in this Section will control.
(a) Acknowledgement. You acknowledge that this Agreement is concluded solely between the parties, and not with Apple. Phas3, not Apple, is solely responsible for our App and the content thereof. You further acknowledge that the usage rules for our App are subject to any additional restrictions set forth in the Usage Rules for our Apple App Store Terms of Service as of the date you download our App (the “ Usage Rules”), and in the event of any conflict, the Usage Rules shall govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
(b) Scope of License. The license granted to you is limited to a non-transferable license to use our App on any Apple-branded products that you own or control as permitted by the Usage Rules.
(c) Maintenance and Support. You and Phas3 acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to our App.
(d) Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to our App. In the event of any failure of our App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for our App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to our App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Phas3. However, you understand and agree that in accordance with this Agreement, Phas3 has disclaimed all warranties of any kind with respect to our App, and therefore, there are no warranties applicable to our App.
(e) Product Claims. You and Phas3 acknowledge that as between Apple and Phas3, Phas3, not Apple, is responsible for addressing any claims you may have, as limited by this Agreement, or claims of any third party relating to our App or your possession and/or use of our App, subject to Phas3’s indemnification rights, including, but not limited to (i) product liability claims, (ii) any claim that our App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
(f) Intellectual Property Rights. The parties acknowledge that, in the event of any third party claim that our App or your possession and use of our App infringe that third party’s intellectual property rights, Phas3, and not Apple, will be responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required under this Agreement.
(g) Legal Compliance. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
(h) Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using our App.
(i) Third-Party Beneficiary. The parties acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
5.1 Phas3 Obligations . Phas3 shall use commercially reasonable efforts to host, manage, operate, and maintain our Service for remote electronic access to, and use of, by you through Phas3’s software, systems and hardware. Except as otherwise expressly provided in this Agreement, Phas3 shall have sole control and ownership over the operation, provision, maintenance, and management of our Service, including: (a) the location(s) from where any of our Service are provided or made accessible; (b) selection, deployment, modification, and replacement of our Service; (c) the support of our Service, the maintenance, upgrades, and any other corrections, fixes, repairs, patches, minor or major releases related to our Service; and (d) the use and engagement of subcontractor(s) to deliver our Service, either directly or indirectly, to you.
5.2 Service Assistance . Subject to Section 11 (Limitation of Remedies), you will be entitled to limited assistance and technical support for the features, functionalities and operation of our Service, which will be accessible via our helpdesk at firstname.lastname@example.org between the hours of 9:00 A.M. to 5:00 P.M., North American Central Time, on Monday through Friday, except for any holidays regularly scheduled by Provider and which Phas3 will monitor and make every effort to respond to in a reasonable time frame.
6 THIRD PARTY MATERIAL & WEBSITES .
6.1 Third Party Materials . Our Service may include material owned or licensed by third parties, as well as open source software, and links to websites owned by third parties (singularly and collectively " Third Party Material"). Access to and use of any Third Party Material is at your sole risk and we shall not be responsible for the accuracy or reliability of any information, data, opinions, advice or statements made in such Third Party Material. As we do not control the Third Party Material, particularly, third party websites, you agree to take precautions against any worms, trojan horses, computer viruses or other destructive elements that could result from your use of the Third Party Material.
6.2 No Endorsement . Our inclusion of Third Party Material on our Service shall not be construed as our endorsement, authorization of, sponsorship of, or relationship with any third party or the Third Party Material, and no rights or licenses are granted to you in the Third Party Material. You agree to defend and hold us harmless from any and all liability that may result from your use of the Third Party Material. Additionally, if a third party website links to our Service, it is not necessarily an endorsement, authorization, sponsorship of such third party, and may not be known to or authorized by us.
7 OUR MARKS .
7.1 "Phas3" is a registered trademark of Phas3, LLC. Any trademarks, trade names, trade dress, service marks, logos, domain names, and URLs (collectively, the "Marks") provided in the Phas3 Content or displayed on our Service are our property or the property of third parties, and no right to use such Marks is granted to you herein. Other trademarks, including proprietary product designs, owned by us or our affiliates and partners and used by our businesses may be reflected in the Phas3 Content and should not be used by any third party without written authorization by us or the owner of such Marks.
DISCLAIMERS OF WARRANTY; LIMITATION OF LIABILITY
8.1 OUR SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. PHAS3 DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE INTERNATIONAL CONVENTION FOR THE SALE OF GOODS, THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AND THE UNIFORM ELECTRONIC TRANSACTIONS ACT ARE EXPRESSLY DISCLAIMED.
8.2 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, INCLUDING NEGLIGENCE, SHALL PHAS3, ITS OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, SUPPLIERS, OR ANY OTHER PARTY INVOLVED IN PROVIDING OUR SERVICE, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA, SOFTWARE OR HARDWARE, INTERRUPTIONS, ERRORS, DEFECTS, MISTAKES, OMISSIONS, DELETIONS OF FILES, DELAYS IN OPERATION OR TRANSMISSION, NONDELIVERY OF INFORMATION, DISCLOSURE OF COMMUNICATIONS, OR ANY OTHER FAILURE OF PERFORMANCE OF OUR SERVICE RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION OR USE OF THE SERVICE, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF PHAS3 OR ANY OTHER PARTY, OR ANY DAMAGES RESULTING FROM THE USE OF OR RELIANCE ON OUR SERVICE PRESENTED, EVEN IF PHAS3 HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Phas3 Not Providing Medical Advice or Services Disclaimer
9.1 No Medical Advice . Neither Phas3 nor its third party providers are engaged in rendering medical advice or professional medical services. You understand and agree that our Service does not render medical advice services and that while the information provided to you in this Service may be based on evidence-based reviews of standard practices in health care, it does not necessarily represent protocols or practices sanctioned by health regulatory agencies, such as the U.S. Food and Drug Administration.
. You also understand that the information contained in
our Service is not a diagnosis, treatment plan, or recommendation for a
single course of action regarding diseases and is not intended to provide
specific medical advice to you, but may offer options that you should
discuss with your healthcare provider. You also understand that to the
extent you receive any information in any recommendations and/or reports
included in our Service, the information is not intended to be, and should
not be viewed as, a substitute for consultation with a doctor. All health
information should be reviewed by your doctor before making any decision or
taking any action. It remains your sole responsibility to evaluate the
accuracy, completeness, and usefulness of all information provided in the
We cannot provide professional medical services or emergency
assistance of any kind. Please seek immediate professional help if
you: (a) have thoughts of harming yourself or others; (b) are
gravely injured; or (c) are in any danger of harm.
9.3 Not Engaged in Medicine . YOU ACKNOWLEDGE THAT PHAS3 AND ITS THIRD PARTY PROVIDERS ARE NOT ENGAGED IN THE PRACTICE OF MEDICINE AND THAT ALL DECISIONS MADE USING THE HEALTH INFORMATION PROVIDED THROUGH OUR SERVICE SHALL BE YOUR SOLE AND EXCLUSIVE RESPONSIBILITY. You agree, at your expense, to indemnify, defend and hold Phas3, and its third party providers, along with each’s respective employees, agents, directors, affiliates and subsidiaries, harmless from any and all losses, liabilities, or damages (including reasonable attorneys’ fees and costs) resulting from any and all claims, causes of action, suits, proceedings, or demands against such parties arising from or related to decisions or recommendations you make using the information available within our Service.
9.4 Personal Health Information . In the event you provide us your personal health information as defined by any applicable law, you acknowledge our professional limitations described in this Section and that we will not use such information other than as required or permitted under applicable laws, rules, or regulations. We make no representations, guarantees or warranties, expressed or implied that you will achieve any results from or through our Service.
10.1 YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS PHAS3, ITS OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, SUPPLIERS, OR ANY OTHER PARTY INVOLVED IN PROVIDING OUR SERVICE FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, DAMAGES, COSTS, OR OTHER EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) THAT ARISE DIRECTLY OR INDIRECTLY FROM: (A) USE OF OUR SERVICE, (B) BREACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND/OR (C) YOUR SUBMISSIONS AND/OR POSTINGS TO OUR SERVICE.
Limitation of Remedies
11.1 Limitation . Other than as expressly provided in this Agreement, your sole remedy for a breach of this Agreement or for any problems or complaints arising from your use of our Service or arising under this Agreement is your discontinuation of the use of our Service. You may attempt to delete or re-download and reinstall our App, but Phas3 makes no guarantee or warranty that such measures will be effective. Phas3 is not responsible for any defects or malfunctions in our Service, or any problems our Service may cause, including those arising under normal use and those arising under misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, or damage determined by Phas3 to have been caused by you.
11.2 Hardware Warranty . Any Hardware you receive in conjunction with our Site or App shall be delivered to you in a good and functioning manner per generally accepted industry standards (“Hardware Warranty ”). The foregoing warranty will expire thirty (30) days following your confirmed receipt of the Hardware. In the event of a breach of this Hardware Warranty, your first remedy is to seek repair by an authorized agent of Phas3 (in most cases, your nurse or the clinic administrator) at no charge to you, such that the Hardware meets the foregoing Hardware Warranty. If the attempted repair fails, your second remedy is for Phas3 to provide you with replacement Hardware at no charge to you. The foregoing REMEDIES represent your sole and exclusive remedy for any claim arising out of the Hardware. Phas3 makes no other representation or warranty with respect to the Hardware. The Hardware is provided “AS IS.” Phas3 expressly disclaims liability for (a) changes or modifications made to the Hardware by anyone other than Phas3; or (b) any changes, modifications, combinations with other software applications or equipment, conditions or issues on or arising from systems (including your mobile device or computer), servers, networks, or the Internet which affects the use or operation of the Hardware. The warranty contained in this Section, and the obligation to provide support, do not apply to any Hardware which is not provided by Phas3.
12 Consent to Use of Data; YOUR PRIVACY .
13 SYSTEM UNAVAILABILITY; ERRORS .
13.1 Unavailability . There may be times when our Service is unavailable due to technical errors or for maintenance and support activities. We do not represent, warrant, or guarantee that our Service will always be available or is completely free of human or technological errors.
13.2 Errors . Our Service may contain typographical mistakes, inaccuracies, or omissions and some information may not be complete or current. We expressly reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice. We do not make any representation or warranty concerning errors, omissions, delays, or defects in our Service or any information supplied to you via our Service, or that files available through Service are free of viruses, worms, Trojan horses, or other code that include or manifest contaminating or destructive characteristics.
14 COMPLIANCE WITH APPLICABLE LAWS .
14.1 Compliance with the Law . You agree to comply with all applicable laws, statutes, ordinances, and regulations regarding your use of our Service. Notwithstanding anything to the contrary, we make no representation that our Service is appropriate or available for use in other countries besides the United States of America. If you choose to access our Service from another country, you do so at your own risk.
14.2 Applicable Law . This Agreement is governed by the laws of the State of Missouri, without regard to Missouri’s conflict or choice of law. Any arbitration or court proceeding will take place in St. Louis, Missouri, and you hereby consent to the exclusive jurisdiction and venue of the state or federal courts in St. Louis, Missouri.
Dispute Resolution and Governing Law, Jurisdiction and Costs
15.1 Notice of Complaint . You agree that, before initiating any claim, arbitration, or court proceeding against Phas3, you will first send written notice to Phas3 specifying the problem or complaint, and provide Phas3 with at least sixty (60) days to cure such problem or complaint. Any arbitration or court proceeding initiated before the cure period will be invalid, and you consent to its prompt dismissal.
15.2 Informal Negotiations . To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Phas3 agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one party to the other. Phas3 will send its notice to your address on file and email you a copy to the email address you have provided to us. You will send your notice to Phas3 at the address set forth below.
15.3 Binding Arbitration . If you and Phas3 are unable to resolve a Dispute through informal negotiations, either you or Phas3 may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION YOU WOULD HAVE THE RIGHT TO SUE IN A COURT AND HAVE A JURY TRIAL, AND THAT BY AGREEING TO THIS LICENSE, YOU ARE KNOWINGLY AND WILLINGLY WAIVING THE RIGHT TO A JURY TRIAL IN THE EVENT PHAS3 ELECTS TO REFER A DISPUTE TO ARBITRATION. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org.
15.4 Determination of Arbitration . The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and Phas3 may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
15.5 No Other Parties . You and Phas3 agree that any arbitration shall be limited to the Dispute between Phas3 and you individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other claim or action; (b) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
15.6 Exclusions . You and Phas3 agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of Phas3’s intellectual property rights, (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion or privacy or unauthorized use, and (c) any claim for injunctive relief.
16 TERMINATION AND SURVIVAL; MISCELLANEOUS .
16.1 Benefitting Parties . Some of the provisions of this Agreement are for the benefit of Phas3, its officers, directors, employees, agents, subsidiaries, affiliates, suppliers, and any third-party information providers. Each of these persons or entities shall have the right to enforce these provisions directly against you on its own behalf if you violate any of the terms or conditions of this Agreement.
16.2 No Waiver . Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provisions of this Agreement. We may assign its rights and duties under this Agreement to any party at any time without notice to you.
16.3 Termination and Effect . This Agreement may be terminated by either party at any time, without notice to the other party. Upon termination or expiration of this Agreement: (i) all rights, licenses, consents, permissions, and authorizations granted to you hereunder will immediately terminate; (ii) you shall immediately cease all use of our Service; and (iii) to the extent required, you shall promptly return any Hardware that has been licensed to you.
All official notices required or desired to be sent to Phas3 shall be in
writing and sent by first class mail, postage prepaid, by next-day courier
or by facsimile, to the attention of the person identified below, at the
address shown below. Phas3 may change such address at any time by updating
this Agreement. Notice shall be effective on the fifth (5th)
business day after mailing, on the first (1st) day after the
date of sending via next-day courier.
20 S Sarah St. Saint Louis, MO 63108
16.5 Survival . Obligations and duties arising under these terms, which by their nature extend beyond the termination of this Agreement, shall survive any termination.
Print or download a copy of this Agreement for your records