Last Revised: September 9, 2010
2.ACCOUNT. If you register an account with Phile (the “Account”), you acknowledge and agree that you are responsible for maintaining the security of the Account and that you will be held responsible for all activities that occur under the Account. If you become aware of, or reasonably suspect, any breach of security, including without limitation any unauthorized use of the Account, you must notify Phile immediately. Phile shall have no obligation to inquire about the authority of anyone using the Account. You acknowledge and agree that (a) you shall have no ownership or other property interest in the Account, and (b) all rights in and to the Account are and shall forever be owned by Phile.
4.CONTENT; OWNERSHIP. “Content” means any communications, comments, reviews, images, sounds, text, data or any other material that you submit to us or a Phile Site. By submitting Content to a Site (a) you agree to assign and hereby do assign to Phile all right, title and interest in and to such Content and (b) Phile agrees to grant to you and hereby grants to you a perpetual, worldwide, royalty-free, non-exclusive license to use, reproduce, adapt, modify, translate, reformat, create derivative works from, publicly display, publish, distribute, sell, license, and/or sublicense such Content as well as all modified and derivative works thereof.
5.REPRESENTATIONS AND WARRANTIES. By submitting Content, you represent and warrant that you (a) own or otherwise control all rights to the Content, or (b) are able to assign the rights specified herein. Your further represent and warrant that your Content does not:
(i) infringe the proprietary, publicity or privacy rights of any third party;
(ii) violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising);
(iii) contain any defamatory, trade libelous, unlawfully threatening or unlawfully harassing material or content;
(iv) contain obscene, child pornographic or other material(s) that may be harmful to minors; or
(v) 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.
Phile reserves the right, but is not obligated, in Phile’s sole discretion, to edit, reject, or remove any Content.
6.LIMITATIONS OF USE. While using Phile, you agree that you will not:
(i)collect any information from or through Phile using any automated means, including without limitation any script, spider, “screen scraping,” or “database scraping” application;
(ii)access Phile by any means other than through the interface provided by Phile;
(iii)access or use Phile in any way beyond the authorization granted herein;
(iv)post defamatory, libelous, unlawfully threatening or unlawfully harassing material or content or otherwise use Phile to engage in unlawful activity;
(v)attempt to damage, disable, overburden, or impair Phile or interfere with any other party’s use of Phile; or
(vi)distribute or post “spam” on or through Phile or send unsolicited messages to other Phile users.
7.INTELLECTUAL PROPERTY. Notwithstanding anything to the contrary herein, all rights and title in and to Phile, 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, are the sole and exclusive property of Phile. 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. Neither your access to and use of Phile nor the terms of this Agreement grant you 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.
8.CHANGES TO THE AGREEMENT. Phile reserves the right to amend this Agreement at any time by posting the amended Agreement on the Phile website. Your continued use of Phile after a revision to this Agreement shall constitute your acceptance of such changes. If at any time you are no longer able to comply with the terms of this Agreement, you must terminate this Agreement and immediately stop using Phile. Phile may change, modify, suspend or discontinue, at any time and without notice, any aspect of Phile, including without limitation, any sites, groups, features or services of Phile. Furthermore, Phile may impose limits on certain features or restrict your access to parts or all of Phile without notice or liability to you.
9.SUSPENSION; TERMINATION. Phile reserves the right, in its sole discretion, to suspend or terminate your Account without notice, for any reason or no reason, including without limitation any breach by you of this Agreement or conduct by you that Phile, in its sole and absolute discretion, determines to be inappropriate. You agree that Phile shall not be liable to you or any third-party for any such suspension or termination.
10.LIMITATION OF LIABILITY. IN NO EVENT SHALL PHILE, ITS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, OR EMPLOYEES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM FINES, HARM TO BUSINESS, OR THE LOSS OF BUSINESS, GOODWILL, PROFITS, SAVINGS OR REVENUE, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, AS A RESULT OF (i) YOUR USE OF PHILE, (ii) YOUR SUBMISSION OF CONTENT THROUGH PHILE, OR (iii) ANY CONTENT MADE AVAILABLE THROUGH PHILE. A PARTY’S OUT-OF-POCKET COSTS FOR DAMAGES RECOVERED BY A THIRD PARTY ARE, FOR PURPOSES OF THIS AGREEMENT, INDIRECT DAMAGES. BY ENTERING INTO THIS AGREEMENT YOU HEREBY ACKNOWLEDGES AND AGREE THAT THIS LIMITATION ON DAMAGES IS FAIR AND REASONABLE. IN NO EVENT SHALL PHILE’S LIABILITY BE GREATER THAN AN AMOUNT EQUAL TO THE SUM OF THE PAYMENTS MADE BY YOU TO PHILE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT FOR WHICH LOSSES OR DAMAGES ARE CLAIMED.
11.WARRANTY DISCLAIMER. PHILE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
12.INDEMNIFICATION. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS PHILE, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, SERVICE PROVIDERS, CO-BRANDERS, PARTNERS, EMPLOYEES AND SITE OWNERS, FROM AND AGAINST ANY CLAIM, LIABILITY, LOSS, INJURY, DAMAGE, COST OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) INCURRED AS A RESULT OF, ARISING FROM, OR RELATING TO (i) YOUR USE OF PHILE OR ANY SITES AVAILABLE THROUGH PHILE; OR (ii) YOUR VIOLATION OF THIS AGREEMENT, ANY APPLICABLE LAWS, OR THE RIGHTS OF ANY THIRD PARTY.
13.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.
14.MISCELLANEOUS. You may 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. The provisions of this Agreement which by their nature are intended to survive termination of this Agreement (including, but not limited to, representations, warranties, guarantees, indemnifications, payment of obligations, remedies and/or forum selection) shall survive the termination of this Agreement. This Agreement represents the entire agreement between you and Phile and supersedes all other prior agreements between you and Phile.