Last Updated: September 8, 2020
Phenix Real Time Solutions, Inc. (“Phenix,” “our,” or “we”) makes available its website, online, and cloud-based products and services (including its PCAST™ real-time content streaming video service), and related products, software and services (collectively, “Services”); certain mobiile applications; and application programming interface (“API”) materials that allow users to connect to, access, and use the Services. These Terms of Service (“Terms”) apply to your use of the Services, any mobile application we make available to you directly or through download from an authorized app store (“Mobile App”), and our API Materials (as defined below). If you are accepting these Terms and using the Services on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so and have the authority to bind such entity to these Terms, in which case the words “you” and “your” as used in these Terms shall refer to such entity. If you have a separate agreement with us, you agree that these Terms are incorporated into that agreement to the extent applicable, unless expressly stated otherwise in such agreement.
PLEASE READ THESE TERMS CAREFULLY. BY DOWNLOADING, AND INSTALLING THE MOBILE APP, BY CLICKING ACCEPT, OR BY ACCESSING OR USING ANY OF THE SERVICES OR API MATERIALS, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 17, DO NOT ACCESS OR USE THE SERVICES, MOBILE APP, OR API MATERIALS.
You must be at least 13 years of age to access or use our Services, Mobile Apps, or API Materials (as defined in Section 7(b) below). The Services, Mobile Apps, and API Materials are not intended for anyone under the age of 13 and if you are under the age of 13, you are not permitted to use the Services, Mobile Apps, or API Materials. Also, if you are between the ages of 13 and 18, you must have your parent or guardian read these Terms and agree to be bound by them. If you don’t get your parent or guardian to read and agree to this, you don’t have permission to use the Services, Mobile Apps, or API Materials.
If you are a parent or legal guardian of a user between the ages of 13 and 18 (or the age of legal majority) granting your child permission to use the Services, Mobile Apps, or API Materials then you agree to be fully responsible for the acts or omissions of such user in connection with our Services, Mobile Apps, or API Materials.
You may need to create and register for an account or credentials to use certain functionality and features of the Mobile App. You must provide accurate, truthful, current, and complete information and promptly update this information if it changes. You are responsible for all activities that occur in connection with your account or credentials. You also must maintain the security of your account or credentials and promptly notify us if you discover or suspect that someone has accessed your account or credentials without your permission.
Subject to your compliance with these Terms, Phenix grants you the non-exclusive right to access and use the Services for your personal, non-commercial purposes. The right includes the ability to view content made available through the Services by third parties.
If you download or obtain a copy of any Mobile App, this Section 6 will also apply to your use of such Mobile App. The Mobile App is licensed, not sold, to you. Subject to these Terms, Phenix grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable license to download, display, and use the Mobile App for personal non-commercial purposes solely in connection with the Services. This license does not include any right to, and you will not: (i) sell, resell, or commercially use the Mobile App; (ii) copy, reproduce, distribute, publicly perform, or publicly display the Mobile App; (iii) modify the Mobile App, remove any proprietary rights notices or markings, or otherwise make any derivative uses of the Mobile App; (iv) use any data mining, robots, or similar data gathering or extraction methods on the Mobile App; and (v) use the Mobile App other than for its intended purposes.
Our Services make available to you content, including without limitation information, data, text, graphics, videos and other materials, from third-party providers (“Third-Party Content”), and your ability to access the Services may be enabled by software and other technology developed by third parties (such software and technology collectively with Third-Party Content being “Third-Party Materials”). You acknowledge that Phenix does not own, create, or control the Third-Party Materials and that the Third-Party Content delivered to you by the Services may include content that is objectionable to you. Without limiting the foregoing, we do not control, endorse, or take responsibility for any Third-Party Materials made available on or linked to by our Services. Phenix disclaims any responsibility or liability in connection with the Third-Party Materials including your use thereof.
You may only use the Services in accordance with this Agreement. In connection with your use of the Services, you will not: (a) infringe on, violate, dilute, or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (b) interfere with or attempt to interfere with or disrupt the integrity, security, functionality, or proper working of the Services; (c) attempt to discover, access, read, alter, destroy, or damage any programs, data, or other information stored on or in connection with the Services; (d) sell, resell or commercially use our Services or Third-Party Content; (e) copy, reproduce, or distribute Third-Party Content; (f) use our Services or Third-Party Content other than for their intended purposes. Any use of our Services or Third-Party Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate your use rights.
You are solely responsible for your conduct while accessing or using our Services, including any content (including without limitation information, data, text, graphics, videos and other materials) you provide or make available to Phenix, the Services and/or the Mobile App (“Your Content”). You will not:
Any questions, comments, suggestions, ideas, original or creative materials, or other information you provide about Phenix or our products, Services, Mobile Apps, or API Materials (collectively, “Feedback”), is non-confidential and will become the sole property of Phenix. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. To the extent ownership of any Feedback does not to transfer to Phenix in accordance with the foregoing, you hereby grant Phenix a perpetual, worldwide, fully transferable, sub-licensable, irrevocable, royalty free, license to use, reproduce, modify, create derivative works from, distribute and display the Feedback in any manner and for any purpose.
We have a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify our Designated Agent in writing with the following information (please see 17 U.S.C. §512(c)(3) for further detail):
Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Phenix for certain costs and damages.
Our Services, Mobile Apps, API Materials and the trademarks, trade names, service marks, logos, slogans and other content contained therein other than Third-Party Content (collectively, the “Phenix Content”) are owned by or licensed to Phenix and are protected under both United States and foreign intellectual property laws. Except as expressly stated in these Terms, Phenix and our licensors reserve all rights in and to our Services, Mobile Apps, API Materials, and the Phenix Content, and you are not granted any other rights under our intellectual property, whether by implication, estoppel or otherwise. You may not modify any Third-Party Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services, Mobile Apps, API Materials, Phenix Content, or Third-Party Content.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Phenix, our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Phenix Parties”) from and against any loss, liability, claim, demand, damages, expenses, or costs (“Claims”) arising out of or related to (a) Your Content; (b) your access to or use of our Services, Mobile Apps, or API Materials; (c) your violation of these Terms; (d) any claim that you or Your Content violates, misappropriates, or infringes any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Services, Mobile Apps, or API Materials. You will cooperate with Phenix Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Phenix Parties will have control of the defense or settlement of any third-party Claims. This indemnification obligation will survive these Terms and your use of the Services.
YOUR USE OF OUR SERVICES, MOBILE APPS, AND API MATERIALS IS AT YOUR SOLE RISK. OUR SERVICES, MOBILE APPS, AND API MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, AND PHENIX EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, IMPLIED OR THROUGH COURSE OF DEALING, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, PHENIX DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES, MOBILE APPS, API MATERIALS, AND ANY THIRD-PARTY MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, ERROR-FREE, OR FREE OF INTERRUPTION. WHILE PHENIX ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF OUR SERVICES SAFE AND SECURE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES, MOBILE APPS, API MATERIALS, OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES, MOBILE APPS, AND API MATERIALS. PHENIX DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME ANY RESPONSIBILITY FOR ANY THIRD-PARTY MATERIALS.
NONE OF THE PHENIX PARTIES WILL BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS OR LOST OPPORTUNITY, INCLUDING WITHOUT LIMITATION ANY LIABILITY RESULTING FROM ANY (A) ERRORS, MISTAKES, INACCURACIES, OR INABILITY TO RECEIVE OR VIEW CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGES OF ANY NATURE RESULTING FROM YOUR USE OR INABILITY TO USE THE SERVICES, MOBILE APPS, OR API MATERIALS; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES, MOBILE APPS, OR API MATERIALS; OR (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO AND FROM SERVERS USED TO DELIVER ANY CONTENT, EVEN IF ANY OF THE PHENIX PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.\
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Phenix and limits the manner in which you can seek relief from us.
Except for disputes in which you or Phenix seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Phenix waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our Services will be resolved through confidential binding arbitration held in Chicago, Illinois in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and Phenix agree that any dispute arising out of or related to these Terms or our Services is personal to you and Phenix and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and Phenix agree that these Terms affect interstate commerce and that the enforceability of this Section 15 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. All disputes between Phenix and you will be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, consolidate more than one individual’s claims, or preside over any proceeding involving more than one individual, all of which are prohibited by these Terms. You and Phenix agree that for any arbitration you initiate, you will pay the filing fee and Phenix will pay the remaining JAMS fees and costs. For any arbitration initiated by Phenix, Phenix will pay all JAMS fees and costs. You and Phenix agree that the state or federal courts of the State of Illinois and the United States sitting in Chicago, Illinois have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR OUR SERVICES, MOBILE APPS, OR API MATERIALS MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND PHENIX WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 17 by sending a written letter to [email protected]that specifies (i) your name, (ii) mailing address, and (iii) your request to be excluded from final, binding arbitration procedures specified above. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are expressly agreeing to resolve disputes in accordance with Section 18.
These Terms and your access to and use of our Services, Mobile Apps, and API Materials will be governed by and construed and enforced in accordance with the laws of Illinois, without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration will be resolved in the state or federal courts of Illinois and the United States, respectively, sitting in Cook County, Illinois.
Because we continuously work to enhance and modify our Services, Mobile Apps, and API Materials to improve the user experience, we may make changes to these Terms from time to time. If we make changes, we will post the amended Terms and update the “Last Updated” date above. We may also send you additional notice, such as by sending an email notification to the address associated with your account or by providing notice through our Services. Unless we say otherwise in our notice of changes, the amended Terms will be effective immediately and your continued access to and use of our Services, Mobile Apps, and API Materials after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services, Mobile Apps, and API Materials.
If you have any questions about these Terms or the Services, Mobile Apps, or API Materials please contact us at [email protected].
All or part of our Services, Mobile Apps, or API Materials may be subject to U.S. export control and economic sanctions laws (“Export Controls”). You agree to abide by all Export Controls as they relate to your access and use of our Services, Mobile Apps, or API Materials. You may not access or use our Services, Mobile Apps, or API Materials if you are located in a jurisdiction where the provision of our Services, Mobile Apps, or API Materials is prohibited by law (a “Prohibited Jurisdiction”). You represent and warrant that: (a) you are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; and (c) you will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you are located.
We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Services, Mobile Apps, or API Materials. We are not responsible for any loss or harm related to your inability to access or use our Services, Mobile Apps, or API Materials.
These Terms, together with any non-disclosure agreement entered into between you and Phenix, constitute the entire agreement between you and Phenix relating to your access to and use of our Services, Mobile Apps, or API Materials. If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. The failure of Phenix to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.