Last Revised: September 22, 2010
1.1.“Site Owner Content” means all text, pictures, sound, graphics, video and other data supplied by Site Owner.
1.2.“Intellectual Property Rights” means any and all now known or hereafter known intellectual property and/or proprietary rights, including but not limited to copyright, patent, trademark, trade name, trade secret, moral and contract rights in any country or jurisdiction of the world and all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).
1.3.“Phile Content” means all text, artwork, pictures, sound, graphics, video and other data provided by Phile for use by Site Owner.
1.4.“Phile Tools” means any current or future tools, both in executable code and source code form, that Phile has already developed or that Phile independently develops or licenses from a third party. By way of example, Phile Tools may include, without limitation, the APIs, services and administrative tools accessed via the Phile website.
1.5.“User Content” means all text, artwork, pictures, sound, graphics, video and other data submitted to the Website by end users of the Website.
2.1.GENERAL. Site Owner may create, develop and administer the Website in conjunction with the Phile Tools and other services provided by Phile for use with the Website, according to the terms and conditions set forth in this Agreement.
2.2.MODIFICATIONS. Site Owner shall be responsible for all modifications to the Website.
3.2.SITE OWNER CONTENT. All Site Owner Content shall at all times remain the property of Site Owner or Site Owner’s licensor(s).
3.3.CONTENT LICENSE. Site Owner hereby grants to Phile a non-exclusive, royalty-free, worldwide license to reproduce, distribute, publicly perform, publicly display, digitally perform, and modify the Site Owner Content and the User Content as required for Phile to carry out its obligations under this Agreement.
3.4.CONTENT DISTRIBUTION. Phile may provide license options for Site Owner to choose the license under which Site Owner redistributes certain Site Owner Content and User Content on the Website. The default license under which all Site Owner Content and User Content is redistributed is “All Rights Reserved,” subject to the provisions herein.
3.5.CONTENT SYNDICATION. Site Owner may syndicate any Site Owner Content or User Content or use either one in any other manner during the Term of the Agreement.
4.PHILE’S INTELLECTUAL PROPERTY. Notwithstanding anything to the contrary herein, Phile owns all right, title and interest in and to the Phile website, Phile Tools, Phile Content and other Phile services, including without limitation any user accounts, programming, computer code (including source and object code), APIs, objects, database rights, methods of operation, and any related documentation. In addition, Phile shall own all rights in and to any programming code, database architecture, object or schema used or created in connection with the manipulation and/or redistribution of Site Owner Content and/or User Content. If any Phile Tools or Phile Content are incorporated into or used in conjunction with the Website, or any Phile Tools are used to manipulate content for distribution on the Website, Phile hereby grants to Site Owner (a) a limited, revocable, non-exclusive and royalty-free, right to use, reproduce, distribute (through one or more tiers), publicly perform, publicly display, and digitally perform such Phile Content in any media now known or hereafter known, (b) a limited, revocable, non-exclusive and royalty-free, right to use such Phile Tools to produce the Website, and (c) a limited, revocable, non-exclusive and royalty-free, right to use, reproduce, distribute (through one or more tiers), publicly perform, publicly display, and digitally perform the output of such Phile Tools.
5.SITE OWNER WARRANTY. Site Owner represents and warrants that all Site Owner Content and/or User Content contained on the Website or supplied to Phile shall not: (a) infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) contain any defamatory, trade libelous, unlawfully threatening or unlawfully harassing material or content; (d) be obscene, child pornographic or harmful to minors; or (e) contain any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. Site Owner further represents and warrants that there is no outstanding contract, commitment or agreement to which Site Owner is a party, or legal impediment of any kind known to Site Owner, which conflicts with this Agreement or might limit, restrict or impair the rights granted to Phile hereunder.
6.PERSONAL INFORMATION. Phile shall own all right, title, and interest in and to all personal information of end users of the Website, including without limitation, names, addresses, telephone numbers, email addresses and financial information.
7.PROMOTIONAL USE. Phile may, in its sole discretion: (a) use Site Owner’s name, logo, and images of the Website on the Phile website, (b) generate a case study about Site Owner and use such case publicly, and (c) discuss the Website publicly (e.g., in interviews, at conferences, and in other public forums).
9.FEES. Site Owner agrees to pay the fees associated with the services provided by Phile under this Agreement (“Service Fees”). Service Fees will be billed to Site Owner monthly, in advance of service. If Site Owner chooses to pay all Service Fees in advance, for an extended time period (as selected from the billing options provided by Phile at the execution of this Agreement), subsequent Service Fees will not be billed until such period ends, at which point Service Fee billing will continue as set forth in this Agreement. All Service Fees billed to Site Owner will be charged to the credit card, bank account or other payment method on file for Site Owner. If Phile’s services are provided under a promotion, regular Service Fees will apply after the promotional period ends.
10.TERM AND TERMINATION.
10.1.TERM. The term of this Agreement begins on the date Site Owner accepts this Agreement and continues for a period of thirty (30) days, and shall automatically renew for a period of equal length upon expiration of the preceding term unless terminated earlier pursuant to this Agreement.
10.2.TERMINATION OF SERVICE. Phile reserves the right, in its sole discretion and without notice to Site Owner, to: (a) edit, reject, or remove any Site Owner Content and/or User Content; (b) ban end users of the Website or terminate access to the Website by end users for any reason or no reason at all; (c) change, modify, suspend or discontinue any aspect of the Phile service, including without limitation, any websites, features, Phile Tools or other services; and (d) in the event Site Owner breaches this Agreement, immediately disable the Website, or terminate Site Owner’s access to the Website and/or Phile Tools, and retain any prepaid service fees paid by Site Owner to Phile. Site Owner agrees that Phile shall not be liable to Site Owner or any third-party for any of Phile’s actions taken in accordance with this Section.
10.3.TERMINATION OF AGREEMENT. Site Owner may terminate this Agreement at any time, for any reason or no reason, by submitting the Service Cancellation Form. Upon Site Owner’s termination of this Agreement, Site Owner’s access to the Website, Phile Tools, Phile Content and other Phile services will terminate immediately. Phile may terminate this Agreement at any time, for any reason or no reason and without notice to Site Owner by terminating Site Owner’s access to the Website, Phile Tools, Phile Content and/or other Phile Services.
10.4.REFUND POLICY. SITE OWNER SHALL FORFEIT ALL PREPAID SERVICE FEES UPON (a) SITE OWNER’S TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 10.3 OR (b) SITE OWNER’S BREACH, AND PHILE’S SUBSEQUENT TERMINATION, OF THIS AGREEMENT PURSUANT TO SECTION 10.2(d).
10.5.EFFECT OF TERMINATION. Sections 1, 3.1, 3.2, 3.3, 3.6, 5, 6, 9, 11, 14, 15, 16, and 19 shall survive the termination of this Agreement. Upon the termination of this Agreement for any reason (a) Site Owner shall retain all rights in and to the User Content granted by Phile to Site Owner in Section 3.1, (b) Phile shall retain the license to the User Content granted by Site Owner to Phile in Section 3.3, and (c) upon request by Site Owner, Phile shall use reasonable efforts to remove all copies of Site Owner Content from servers within Phile’s control.
11.CONFIDENTIAL INFORMATION. Phile’s “Confidential Information” is defined as the source code of any Phile Tools. Phile understands and agrees that Site Owner does not want any other Confidential Information of Phile, and should the parties agree that additional confidential information of Phile needs to be disclosed to Site Owner, the Parties shall execute a separate non-disclosure agreement regarding such information. Site Owner shall hold Phile’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the Confidential Information for any purpose other than as set forth in this Agreement. The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by Site Owner, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by Site Owner from a third party without a restriction on disclosure or use, or (d) independently developed by Site Owner without reference to Phile’s Confidential Information.
12.TRADEMARK. Phile, Phile.com and their respective logos are trademarks, service marks or registered marks of Phile ("Marks"). Other trademarks, service marks, graphics, logos and domain names appearing on Phile may be the trademarks of third parties. Phile does not grant Site Owner any right, title or interest or license to reproduce or otherwise use the Marks or any third-party trademarks, service marks, graphics, logos or domain names.
13.DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH HEREIN, PHILE EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
14.LIMITATION ON LIABILITY. IN NO EVENT SHALL PHILE’S LIABILITY BE GREATER THAN AN AMOUNT EQUAL TO THE SUM OF THE PAYMENTS MADE BY SITE OWNER TO PHILE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT FOR WHICH LOSSES OR DAMAGES ARE CLAIMED. BY ENTERING INTO THIS AGREEMENT, SITE OWNER HEREBY ACKNOWLEDGES AND AGREES THAT THIS LIMITATION ON DAMAGES IS FAIR AND REASONABLE.
15.INDEMNIFICATION. SITE OWNER SHALL DEFEND PHILE AGAINST ANY THIRD PARTY CLAIM, ACTION, SUIT OR PROCEEDING ALLEGING ANY BREACH OF THE REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED IN THIS AGREEMENT. SITE OWNER SHALL INDEMNIFY PHILE FOR ALL LOSSES, DAMAGES, LIABILITIES AND ALL REASONABLE EXPENSES AND COSTS (INCLUDING REASONABLE ATTORNEYS&rsqo; FEES) INCURRED BY PHILE AS A RESULT OF A FINAL JUDGMENT ENTERED AGAINST PHILE IN ANY SUCH CLAIM, ACTION, SUIT OR PROCEEDING.
16.INJUNCTIVE RELIEF. Site Owner agrees that Phile’s services are unique and that Phile may suffer irreparable harm in the event of any breach by Site Owner and that monetary damages in such event would be substantial and inadequate to compensate Phile. Consequently, Phile shall be entitled, in addition to such monetary relief as may be recoverable by law, to such injunctive or other relief as may be necessary to restrain any threatened, continuing or further breach by Site Owner, without showing or proving actual damage sustained by Phile and without posting a bond.
17.CHANGES TO THE AGREEMENT. Phile reserves the right to amend this Agreement at any time by posting the amended Agreement in the Phile Policy Center. Site Owner’s continued use of the Website, and/or any Phile services related to the Website, after a revision to this Agreement shall constitute Site Owner’s acceptance of such changes. If at any time Site Owner is no longer able to comply with the terms of this Agreement, Site Owner must terminate this Agreement and immediately stop using the Website and the Phile services provided for use with the Website.
18.FORCE MAJEURE. Phile shall not be liable for any failure of performance due to causes beyond Phile’s control, including without limitation: acts of God, fire, flood, earthquake, accidents, strikes, war, terrorism, governmental acts, failure of common carriers (including Internet service providers and web hosting providers), or shortages of transportation facilities, fuel, energy, labor, or materials.
19.MISCELLANEOUS. Site Owner shall not assign this Agreement, in whole or in part, without Phile’s prior written consent and any attempted assignment in violation of this provision shall be null and void. No waiver of any default, condition or breach of this Agreement shall constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise. The failure of either party to insist on the strict enforcement of any provision of this Agreement shall not constitute a waiver of the provision and all terms and conditions shall remain in full force and effect. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to its principles of conflicts of laws. Any provision found unlawful by a court or regulator having jurisdiction shall be deemed to be severed from the Agreement but such severance shall have no effect on the enforceability of the remaining provisions of the Agreement. This Agreement is non-exclusive; nothing in this Agreement shall prevent Phile from entering into similar arrangements with, or otherwise providing service to, any other person or entity. This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.