Phacility, Inc. ("Phacility," "we," or "us") provides a suite of software development applications and related services and support (the "Service"). The following terms and conditions (the "Terms") govern your access to and use of the Service, and constitute a binding legal agreement between you and Phacility.
Related Policies
- These related policy documents have specifics on privacy and copyright.
- See L2 Phacility Privacy Policy for information on Phacility's collection and use of your personal information.
- See L3 Phacility Copyright Policy for information on copyright and intellectual property.
Key Content-Related Terms
- This section defines language used elsewhere in the document.
- "Content" means text, graphics, images, music, software source code, audio, video, information or other materials.
- "Member" means a person that completes Phacility's account registration process, as described under the "Accounts" section below.
- "Member Content" means Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Service.
Acceptance of These Terms
- You must agree to these terms to use the service.
By clicking "Sign Document", or by accessing or using the Service, you are indicating that you have read, and that you understand and agree to be bound by these Terms, whether or not you are a registered Member. If you do not agree to these Terms, then you have no right to access or use the Service. If you accept or agree to these Terms on behalf of a company or other organization, you represent and warrant that you have the authority to bind that organization to these Terms and, in such event, "you" and "your" will refer and apply to that organization.
Modification
- We may change the service we provide.
- We may change these terms.
Phacility may, at its sole discretion, modify, discontinue or terminate the Service, in whole or in part, or modify these Terms, at any time and without prior notice. If we modify these Terms we will post the modification on the Service or provide you with other notice of the modification. We will also update the "Last Updated" date at the top of these Terms. By continuing to use the Service after we have posted a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Service.
Age Restriction
- You must be at least 13 years old to use the service.
The Service is intended solely for persons who are 13 or older. Any access to or use of the Service by anyone under 13 is expressly prohibited. By accessing or using the Service you represent and warrant that you are 13 or older.
Accounts
- You have to register an account to use the service.
- If you buy stuff from us, you have to pay us.
In order to access certain features of the Service you must register an account ("Account") and become a Member. We charge fees for use of the Service; to use the Service you must pay the applicable fees or another Member must pay the fees on your behalf.
You agree to pay the applicable fees and that accrue in relation to your use of the Service. All fees are non-refundable and non-transferable except as expressly provided in these Terms. All fees are payable in United States dollars.
Unauthorized Use
- You are responsible if your account is misused.
- Do not give out your password.
You are responsible for safeguarding your password and other account credentials. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Phacility of any unauthorized use of your Account.
Copyright and Content Ownership
- We'll serve content you upload to you and other users you share it with.
We permit Members to post, upload, publish, submit or transmit Member Content. Phacility does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your Member Content. By making available any Member Content on or through the Service, you hereby grant to Phacility a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Member Content only on, through or by means of the Service.
Content from Social Media and Networking Sites
- If you use a third-party site to log in, they'll give us some information about your account.
As part of the functionality of the Service, you may link your Account with online accounts you may have with third party service providers (each such account, a "Third Party Account") by allowing Phacility to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to grant Phacility access to your Third Party Account (including for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of that Third Party Account and without obligating Phacility to pay any fees or making Phacility subject to any usage limitations imposed by the third party service providers.
By granting Phacility access to any Third Party Accounts, you understand that Phacility may access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account ("Third Party Account Content") so that it is available through the Service via your Account. Unless otherwise specified in these Terms, all Third Party Account Content, if any, will be considered to be Member Content for purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Account on the Service. You have the ability to disable the connection between your Account and your Third Party Accounts, at any time, in the "Settings" section. Please note that your relationship with the third party service providers associated with your Third Party Accounts is governed solely by your agreement(s) with such third party service providers.
Feedback
- If you request a feature, you're giving us the right to implement it.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Service ("Feedback"). You acknowledge and agree that all Feedback will be the sole and exclusive property of Phacility and you hereby irrevocably assign to Phacility and agree to irrevocably assign to Phacility all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Phacility's request and expense, you will execute documents and take further actions as Phacility may reasonably request to assist Phacility to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
General Prohibitions
- Do not use the service to commit crimes.
- Do not attack the service or use the service to attack other services.
- Respect our trademarks.
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
- Use, display, mirror or frame the Service, or any individual element within the Service, Phacility's name, any Phacility trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Phacility's express written consent;
- Access, tamper with, or use non-public areas of the Service, Phacility's computer systems, or the technical delivery systems of Phacility's providers;
- Attempt to probe, scan, or test the vulnerability of any Phacility system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Phacility or any of Phacility's providers or any other third party (including another user) to protect the Service;
- Attempt to access or search the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Phacility or other generally available third party web browsers;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;
- Collect or store any personally identifiable information from the Service from other users of the Service without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Phacility may investigate and prosecute violations of any of the above to the fullest extent of the law. Phacility may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. Phacility has no obligation to monitor your access to or use of the Service or to review or edit any Member Content, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Phacility reserves the right, at any time and without prior notice, to remove or disable access to any Member Content that Phacility, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Service.
Links
- If you click a link, you deal with the consequences.
The Service may contain links to third-party websites or resources. Phacility is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the Content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Phacility of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products, or services on or available from such websites or resources.
Termination and Account Cancellation
- We can terminate your account at any time if you breach these terms.
If you breach any of these Terms, Phacility may suspend or cancel your Account or terminate these Terms, at its sole discretion and without prior notice to you. In the event Phacility terminates these Terms for your breach, you will remain liable for all amounts due hereunder. You may cancel your Account at any time by using the cancellation process provided on the Service. Upon cancelation of your Account, we will have no obligation to retain your Member Content or other data. Given the inter-related nature of certain Content, however, Account cancelation will not necessarily result in deletion or removal of your Member Content, and we may continue to identify you as the source of your Member Content.
Disclaimers
- The service may have bugs and downtime.
- We aren't responsible for how other users behave.
THE SERVICE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWELDGE THAT THE SERVICE IS NOT GUARANTEED TO MEET YOUR REQUIREMENTS OR TO BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PHACILITY OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE. PHACILITY DOES NOT SCREEN USERS OR THEIR MEMBER CONTENT OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SERVICE, NOR DOES PHACILITY MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE. YOU AGREE TO TAKE ALL APPROPRIATE PRECAUTIONS ASSOCIATED WITH YOUR USE OF THE SERVICE.
Indemnity
- If you misuse the service, it's not our fault.
You agree to defend, indemnify, and hold Phacility, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Service, or your violation of these Terms.
Limitation of Liability
- No matter how badly we screw up, our liability is capped at the last 6 months of fees you've paid us or $100, whichever is greater.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE REMAINS WITH YOU. NEITHER PHACILITY NOR ANY OF ITS SUPPLIERS, REPRESENTATIVES, OR SERVICE PROVIDERS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, IN ANY WAY ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICE, WHETHER SUCH LIABILITY IS BASED ON WARRANTY, CONTRAT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PHACILITY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL PHACILITY'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICE EXCEED THE GREATER OF: (A) THE AMOUNTS YOU HAVE PAID TO PHACILITY IN THE PRECEDING SIX MONTHS FOR USE OF THE SERVICE, OR (B) ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PHACILITY AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Controlling Law
- California law is the best law.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Entire Agreement
- These terms replace any existing agreement.
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between Phacility and you regarding the Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Phacility and you regarding the Service.
Assignment
- You can't reassign this agreement to someone else.
You may not assign or transfer these Terms, by operation of law or otherwise, without Phacility's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Phacility may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices
- If we need to tell you something, we'll email you or post it on the site.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Phacility via email (in each case to the address that you provide); or (ii) by posting to the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Dispute Resolution
- You agree to arbitration if you have a claim against us, and waive any right to participate in a class action.
- Arbitration clauses like this one are sometimes criticized as being anti-consumer, but our customers are mostly businesses, not individuals. We believe arbitration represents a level playing field for businesses, while reducing the cost and risk we face.
You and Phacility agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action"). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Phacility are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Phacility otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Phacility otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Phacility submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award of damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Phacility will not seek, and hereby waives all rights it may have under applicable law to recover attorneys' fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Phacility will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the "Modification" section above, if Phacility changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to contact@phacility.com) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of Phacility's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Phacility in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
General
- If we don't enforce a rule, that doesn't mean you're above the law.
The failure of Phacility to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Phacility. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.