End-User License Agreement
Phyn LLC, including each of its affiliates and subsidiaries (“Phyn”, “us” or “we”) thanks you for choosing one of our products (the “Product”). This End-User License Agreement (this “Agreement”) is a legal document that contains the terms and conditions under which limited use of certain Software (as defined below) that operates with the Product is licensed to you.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THIS PRODUCT.
BY CHECKING THE BOX OR CLICKING THE BUTTON TO CONFIRM YOUR ACCEPTANCE WHEN YOU FIRST INSTALL THE SOFTWARE, YOU ARE AGREEING TO ALL THE TERMS OF THIS AGREEMENT. ALSO, BY USING, COPYING OR INSTALLING THE SOFTWARE, YOU ARE AGREEING TO ALL THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT CHECK THE BOX OR CLICK THE BUTTON AND/OR DO NOT USE, COPY OR INSTALL THE SOFTWARE, AND UNINSTALL THE SOFTWARE FROM ALL DEVICES THAT YOU OWN OR CONTROL. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT AND YOU PURCHASED A PRODUCT CONTAINING THE SOFTWARE FROM AN AUTHORIZED RETAILER, RESELLER OR APP STORE (AS DEFINED BELOW), YOU MAY BE ELIGIBLE TO RETURN THE PRODUCT FOR A REFUND, SUBJECT TO THE TERMS AND CONDITIONS OF THE APPLICABLE RETURN POLICY.
This product is Software licensed to you by Phyn and, where applicable, by Phyn’s suppliers. “Software” means: (i) any and all firmware programs and associated files provided with respect to the Product; (ii) any and all software programs, applications or “apps” and associated files provided with respect to the Product; (iii) all modified versions of and upgrades or improvements to such programs (such as those provided via web-based updates); (iv) all subsequent versions of such programs; and (v) all copies of such programs and files. “Software” does not include any Open Source Software (as defined below).
By “you,” we mean the purchaser, recipient or other end user of the Product containing the Software or the purchaser, recipient or other end user of the Software on a standalone basis. “You” may also mean a person who has downloaded the Software from an authorized website, such as http://www.phyn.com or from an authorized application market or store, such as Apple’s App Store or Google Play (each such application market or store is referred to in this Agreement as an “App Store”, and collectively as “App Stores”).
1. LICENSE GRANT. Phyn hereby grants you the right to use, (i) where your Product is not a “Small-Medium Business” or “SMB” branded Product, for your personal, non-commercial purposes, or (ii) where your Product is a “Small Medium Business” or “SMB” branded Product, for your personal or commercial use, copies of the Software in object code form on devices that you own (or, in the case of firmware, one copy of the firmware in object code form solely on the Product relating to the firmware). As part of this license, you may (A) operate the Software in the manner described in the user documentation for the Software, (B) where the Software is provided for download onto a personal computer or mobile device, make as many copies of the Software as you reasonably need for your own use (this does not include firmware), and (C) permanently transfer all of your rights to use the Product (including, but not limited to, the Software) to another person, so long as that person also agrees to be bound by this Agreement, and following such transfer you stop using the Product and the Software.
You can find the user documentation for the Software on the “Support” page of the applicable Phyn website.
2. LICENSE RESTRICTIONS. The Software is made available to you on the basis of a limited license only as set out in this Agreement. You have the non-exclusive right to use the Software in accordance with this Agreement. However, you may not (i) modify, adapt or otherwise create derivative works from the Software, the Product containing the Software or user documentation (except as may be permitted by an applicable open source license); (ii) lease, sublicense, resell, rent, loan, redistribute, or otherwise transfer (except as expressly permitted above), whether for commercial purposes or otherwise, the Software or user documentation; (iii) reverse engineer, disassemble, decrypt or decompile the Product or the Software or otherwise try to reduce the Software to a human-readable form, except where and only to the extent that such activity is permitted by applicable law or where Phyn is required to permit such activity under the terms of an applicable open source license; (iv) remove or alter any copyright, trademark or other proprietary notices contained in the Software or the user documentation; (v) use the Product, Software or user documentation to develop a competing hardware and/or software product, or otherwise in any manner not set forth in this Agreement or the user documentation; (vi) if the Software is firmware, copy the firmware (other than one backup copy for archival purposes only), use it on a multi-user system or operate it separately from the Product onto which it is embedded; (vii) use the Software to transmit software viruses or other harmful computer code, files or programs, or to circumvent, disable or otherwise interfere with security-related features of the Software; (viii) use the Software to collect or harvest any third party’s personally identifiable information, to send unauthorized commercial communications or to invade the privacy rights of any third party; or (ix) use the Software for any unlawful purpose, and/or in any manner that breaches this Agreement. All rights not expressly granted to you by Phyn under this Agreement are hereby reserved by Phyn. You will not acquire such rights, whether through estoppel, implication, or otherwise.
3. APP SOFTWARE RESTRICTIONS. If you have downloaded the Software from an App Store, you are also subject to any terms of use of that App Store. Such terms of use may prohibit you from doing some of the things you are permitted to do under this Agreement, or permit you to do some of the things you are prohibited from doing under this Agreement. In addition, application of the App Store’s terms of use may result in other terms of this Agreement not being applicable to the Software or applying in a different way than this Agreement states. If your use of the Software is subject to an App Store’s terms of use, then in the event of any conflict or ambiguity between the terms of this Agreement and such App Store’s terms of use, the App Store’s terms of use will govern, but only to the extent necessary to resolve such conflict or ambiguity, and the terms of this Agreement will otherwise remain in full force and effect. Notwithstanding anything to the contrary in this Agreement, by using the Software you acknowledge and agree that it is solely your responsibility to understand the terms of this Agreement, as well as the terms of use of any App Store that may be relevant to the Software or the Product.
4. UPGRADES AND UPDATES. While Phyn is not required to do so, Phyn may provide you with upgrades or updates to this Software. This Agreement will govern any upgrades provided by Phyn that replace and/or supplement the original firmware and/or Software, unless such upgrade is accompanied by a separate end user license agreement, in which case the terms of that end user license agreement will govern. If you decide not to download and/or to use an upgrade or update provided by Phyn, you understand that you could put the Software at risk to serious security threats or cause the Software to become unusable or unstable. Some Products include an auto-update feature, which gives us the ability to make updates automatically. You can change auto-update options by changing your settings within the Product account information. In very limited cases, updates may still be automatically applied, regardless of the auto-update setting. For example, we may provide an automatic update that fixes a security breach or vulnerability to your network. We may also provide you with updated Software data files automatically to benefit you, such as to provide you with updated device information to identify new devices in your network. These data files do not update your firmware, but consist of Software files that are cached on your Product and override older files. By agreeing to this Agreement, you agree to automatic updates.
5. DATA AND PRIVACY. We are committed to protecting your privacy. Our goal is to provide you with a positive experience when using our apps, products and services, while at the same time keeping your Personal Information (as defined in the Phyn Privacy Policy (the “Privacy Policy”)), secure. Our privacy practices are described in the Privacy Policy. At all times your information will be treated in accordance with the Privacy Policy, which is incorporated by reference into this Agreement and can be viewed at www.phyn.com/privacy.
6. OPEN SOURCE SOFTWARE. You hereby acknowledge that the Software may contain Open Source Software. This license does not apply to Open Source Software contained in the Software. Rather, the terms and conditions in the applicable Open Source Software license shall apply to the Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, any Open Source Software license. You acknowledge that the Open Source Software license is solely between you and the applicable licensor of the Open Source Software. You shall comply with the terms of all applicable Open Source Software licenses, if any. License and copyright information for the Open Source Software are disclosed in the Product documentation, within the “Support” tab on Phyn websites. Phyn is not obligated to provide any maintenance or support for any Open Source Software or any Product Software that has been modified by you pursuant to an Open Source Software license.
“Open Source Software” means any software or software component or technology that is subject to an open source license. Open source licenses are generally licenses that make source code available for free modification and distribution, but can also apply to technology received and distributed solely in object code form. Examples of open source licenses include: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the OpenSSL License; (c) the Mozilla Public License; (d) the Berkeley Software Distribution (BSD) License; and (e) the Apache License.
7. INTELLECTUAL PROPERTY RIGHTS. All title and intellectual property rights (including, without limitation, all copyrights, patents, trade secret rights and trademark rights) in and to the Software (including, but not limited to, any content incorporated into the Software), the accompanying printed materials, and any copies of the Software are owned by Phyn or its suppliers. Therefore, you must treat the Software like any other material protected by laws and treaties relating to international property rights and in accordance with this Agreement.
8. THIRD PARTY PRODUCTS AND SERVICES. The Software may contain links or other features that make it easier for you to visit or log-in to independent third-party websites (“Linked Sites”). These features are provided solely as a convenience to you. Linked Sites are not under Phyn’s control, and Phyn is not responsible or liable for, and does not endorse the content or practices of, such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with any Linked Sites. You hereby waive and release any legal claim you might have against Phyn with respect to these sites or third-party products or services, and your use of these sites, third-party products or services. We encourage you to read the terms and conditions and privacy policy of each third-party website that you choose to visit.
9. INDEMNITY. If Phyn is the subject of a claim, becomes involved in a legal proceeding, or suffers any economic loss or damage as a result of your violation of this Agreement, to the extent permitted by law, you will be responsible for compensating Phyn for the full amount of its loss, as well as any reasonable amounts Phyn incurs in lawyers’ fees, expenses and court costs, except to the extent that Phyn contributed to the loss or damage.
10. TERM. This Agreement is effective when you click on the “I Accept” button, or when you in any other way use, copy or install the Software, which will constitute your acceptance of, and agreement to, this Agreement. Once accepted, this Agreement remains in effect until terminated. The limited license in this Agreement will automatically terminate if you fail to comply with any of the terms and conditions in this Agreement. You agree that upon such termination, you will immediately destroy all programs and documentation that relate to the Software, including all copies made or obtained by you, and otherwise cease use of the Software. If the Software has been installed on a personal computer or mobile device, you must uninstall the Software immediately. If the Software is software or firmware embedded in a Product, you must stop using the Product. All provisions of this Agreement except for Section 1 and the limited warranty in Section 12 (the first paragraph) will survive termination.
11. IMPORTANT NOTICE REGARDING YOUR CONSUMER RIGHTS (NON-EU RESIDENTS). SOME COUNTRIES, STATES AND/OR PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CONDITIONS, WARRANTIES OR GUARANTEES, AND/OR DO NOT ALLOW PRODUCTS OR SERVICES TO BE SOLD WITH NO WARRANTIES OR GUARANTEES. ACCORDINGLY, IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE SECTIONS BELOW ENTITLED “LIMITED WARRANTY AND DISCLAIMER” AND “GENERAL EXCLUSIONS AND LIMITATION OF LIABILITY” MAY NOT APPLY TO YOU. ONLY THOSE EXCLUSIONS AND LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, PHYN’S LIABILITY WILL BE LIMITED ONLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE ENFORCEABILITY OF THESE LIMITED WARRANTIES MAY VARY BASED ON THE LOCAL LAWS APPLICABLE TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS DEPENDING ON WHERE YOU LIVE. FOR EXAMPLE, IN AUSTRALIA AND NEW ZEALAND, OUR SOFTWARE AND THE MEDIA ON WHICH IT IS PROVIDED COME WITH STATUTORY GUARANTEES, INCLUDING AS TO QUALITY AND FITNESS FOR PURPOSE, WHICH CANNOT BE EXCLUDED OR LIMITED UNDER THE AUSTRALIAN CONSUMER LAW OR THE CONSUMER GUARANTEES ACT 1993 (NEW ZEALAND) (AS FURTHER EXPLAINED BELOW).
THIS AGREEMENT IS NOT INTENDED TO AND DOES NOT: (i) CHANGE OR EXCLUDE ANY STATUTORY CONSUMER RIGHTS THAT CANNOT BE LAWFULLY CHANGED OR EXCLUDED; OR (ii) LIMIT OR EXCLUDE ANY RIGHT YOU HAVE AGAINST THE PERSON WHO SOLD THE PRODUCT TO YOU IF THAT PERSON HAS BREACHED ANY SALES CONTRACT WITH YOU. YOU AGREE TO USE THE SOFTWARE IN COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING LOCAL LAWS OF THE COUNTRY OR REGION IN WHICH YOU LIVE OR IN WHICH YOU DOWNLOAD OR USE THE SOFTWARE.
CERTAIN LEGISLATION, INCLUDING THE AUSTRALIAN CONSUMER LAW AND THE CONSUMER GUARANTEES ACT 1993 (NEW ZEALAND) (“CGA”) MAY IMPLY WARRANTIES OR CONDITIONS, OR IMPOSE GUARANTEES OR OBLIGATIONS ON PHYN, WHICH OPERATE TO PROTECT CERTAIN AUSTRALIAN OR NEW ZEALAND PURCHASERS OF GOODS AND SERVICES IN VARIOUS CIRCUMSTANCES (“AU/NZ APPLICABLE LAWS”). NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY CONDITION, WARRANTY, GUARANTEE, RIGHT OR REMEDY IMPLIED OR IMPOSED BY ANY AU/NZ APPLICABLE LAWS WHICH CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED. If any condition, warranty or guarantee is implied into this Agreement or imposed on Phyn under AU/NZ Applicable Laws and cannot be excluded, but Phyn has a choice of a remedy, then Phyn’s liability for breach of the condition, warranty or guarantee is limited to one or more of the following, at Phyn’s option: (a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods or refunding the payment for the goods if it would be unreasonable to expect the products to be repaired; or (b) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again. In addition to these remedies a “consumer” (within the meaning of the CGA) may claim for any reasonably foreseeable loss (other than loss or damage through reduction of value of the goods) that results from the initial problem.
12. IMPORTANT NOTICE REGARDING YOUR CONSUMER RIGHTS (EU RESIDENTS). By accepting this Agreement and downloading the Software you waive any rights that you may have to a “cooling off period” in which to return the Software under the Consumer Rights Directive 2011/83/EU and/or any incorporation of the Directive into the laws of your country of residence.
Nothing in this Agreement is intended to or will have the effect of limiting any of your rights under European Union law and/or the laws of your country of residence, including rights as to the quality and fitness for purpose of the Software and its compliance with the description of it which was made by us prior to you accepting this Agreement.
References in this Agreement to “special, indirect, consequential, punitive or incidental damages” shall mean any losses which (i) were not reasonably foreseeable by both parties; (ii) were known to you but not to us; and/or (iii) were reasonably foreseeable by both parties but could have been prevented by you such as, for example (but without limitation), losses caused by viruses, malware or other malicious programs, or loss of or damage to your data.
You agree to use the Software in compliance with all applicable laws, including local laws of the country or region in which you live or in which you download or use the software.
13. DISCLAIMER. Subject to sections 11 and 12 and to the maximum extent permitted by applicable law, the software and any related programs and documentation is provided to you “as is,” with all faults and without warranties of any kind. In those jurisdictions where it can lawfully do so, and to the maximum extent permitted by applicable law, Phyn, its resellers and its suppliers hereby disclaim and exclude any and all other warranties, express, statutory or implied, including, but not limited to, the implied warranties of merchantability, acceptable or satisfactory quality, non-infringement, title, fitness for a particular purpose, loss of or damage to data, lack of viruses or free from virus or malware attack, security, performance, lack of negligence, workmanlike effort, quiet enjoyment, that the functions contained in the software will meet your requirements, or that your use of or the performance of the software and related information, programs and documentation will be uninterrupted or error-free, or that defects in the software will be corrected, or that your use of the software and related information, programs and documentation will generate accurate, reliable, timely results, information, material or data. No oral or written information or advice given by Phyn, a dealer, agent or affiliate shall create a warranty. To the extent warranties cannot be disclaimed or excluded, they are limited to the duration of the relevant Warranty Period.
Your use of the software, product and related programs and documentation is at your own risk and discretion. You are solely responsible for (and Phyn disclaims) any and all loss, liability, or damages, including to your home, hvac system, electrical system, plumbing, product, other peripherals connected to the product, computer, mobile device, and all other items and pets in your home, resulting from your misuse of the software, product and related programs and documentation. You are responsible for complying with any safety warnings and precautions that accompany the product. If you are not comfortable with using the product after reading the safety warnings, you must return the product to your place of purchase and stop using the software. Phyn is not responsible for (i) your failure to follow safety warnings, precautions or any other instructions provided with the product and/or software, (ii) your negligence in use of the product and/or software, or (iii) your intentional misuse of the product or software.
You further acknowledge that the software and any related programs and documentation are not certified for emergency response or intended or suitable for use in situations or environments where failure, delay or errors or inaccuracies in the data or information provided by the software could lead to death, personal injury or severe physical or environmental damage, including, without limitation, in connection with the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support or weapons systems. You understand that the product and the software are not part of and do not contain a third-party monitored emergency notification system. Phyn does not monitor emergency notifications and will not dispatch emergency authorities to your home in the event of an emergency. Phyn customer support contacts cannot be considered a lifesaving solution and they are not a substitute for emergency services. All life threatening and emergency situations should be directed to the appropriate emergency response services in your area.
It is your responsibility to back up your system, including, without limitation, any material, information or data that you may use or possess in connection with the Product or the Software, and Phyn shall have no liability for your failure to back up your system or any material, information or data.
Some Phyn Products and Software may monitor energy or water consumption in the home. Phyn does not guarantee or promise any specific level of energy or water savings or other monetary benefit from the use of the Products or the Software or any other feature. Actual energy or water savings and any associated monetary benefits vary based on factors beyond Phyn’s control or knowledge. From time to time, Phyn may use the Software to provide you with information that is unique to you and your energy or water usage and suggest an opportunity to save money on energy or water bills if you adopt suggestions or features of the Product or the Software. You acknowledge that this information is not a guarantee of actual savings, and you agree not to seek monetary or other remedies from Phyn if your savings differs. All information provided to you by Phyn is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing information through the Software is not a substitute for direct access of the information in the home.
14. GENERAL EXCLUSIONS AND LIMITATION OF LIABILITY. Some jurisdictions do not allow the exclusion or limitation of implied warranties or of liability for incidental or consequential damages, so the foregoing limitations or exclusions may not apply to you. This agreement gives you specific legal rights which vary from jurisdiction to jurisdiction. To the maximum extent permitted by applicable law, in no event shall Phyn and/or its affiliates, associates, dealers, agents or suppliers or their respective officers, directors, managers, employees, licensors or assigns (for the purposes of this clause 14, “Associated Parties”) be liable for any indirect, exemplary, punitive, special, incidental or consequential damages whatsoever (including, but not limited to, damages for loss of profits or revenue, for business interruption, for personal injury, for loss of privacy, for loss of ability to use any third party products or services, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever), regardless of the theory of liability (contract, tort or otherwise), arising out of or in any way related to the use of or inability to use the software, even if Phyn or such other entities or persons have been advised of the possibility of such damages. In no event shall the total aggregate liability of Phyn and/or its Associated Parties to you for all damages exceed the lesser of fifty dollars (u.s.$50.00) or the price you paid for the product, the software or the media containing the software. This limitation is cumulative and will not be increased by the existence of more than one incident or claim. The foregoing limitations will apply even if any warranty or remedy provided fails of its essential purpose. Nothing in this section is intended to limit the liability, under applicable law, of Phyn and/or its Associated Parties in relation to death or bodily injuries resulting from the negligence or recklessness of Phyn and/or its Associated Parties.
The warranties and remedies set out in this Agreement are exclusive, and, to the extent permitted by law, in lieu of all others oral or written, express or implied.
15. EXPORT CONTROL LAWS. You agree that the use of the Software is subject to U.S. and local export control laws and regulations. You represent and warrant that you are not a citizen of an embargoed or “terrorist supporting” country or a prohibited or restricted end user under applicable U.S. or local export and anti-terrorism laws, regulations and lists. You agree to strictly comply with all export control laws and regulations and agree not to export, re-export, divert, transfer or disclose any portion of the Software or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
16. U.S. GOVERNMENT USERS. The Software and the user documentation qualify as “commercial items” as defined at 48 C.F.R. 2.101 and 48 C.F.R. 12.212. All U.S. Government users acquire the Software and the user documentation with only those rights herein that apply to non-governmental customers. Use of either the Software or the user documentation or both constitutes agreement by the U.S. Government that the Software and the user documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
17. GENERAL TERMS. If any portion of this Agreement or any of its terms is found to be void or unenforceable by law in a particular jurisdiction, such portion or terms shall be interpreted and enforced to the maximum extent allowed in such jurisdiction, and the remaining provisions or any part thereof will remain in full force and effect. This Agreement constitutes the entire agreement between Phyn and you with respect to the Software and your use thereof and supersedes any conflicting or additional terms contained in any purchase order or elsewhere. No provision of this Agreement may be waived, modified or superseded except by a written instrument signed and accepted by Phyn and you. However, the Privacy Policy referenced herein is subject to change in the manner described in that document. Phyn may provide translations of this Agreement as a convenience to users. However, in the event of a conflict or inconsistency between the English and any non-English versions, the English version of this Agreement shall govern, to the extent not prohibited by local law in your jurisdiction. Any suppliers of Phyn shall be direct and intended third-party beneficiaries of this Agreement, including, without limitation, with respect to the disclaimers of warranties and limitations on liability set forth herein. Other than as set forth in the preceding sentence, a person or entity who is not a party to this Agreement shall not have any right to enforce any term of this Agreement. No failure or delay in exercising any right or remedy shall operate as a waiver of any such (or any other) right or remedy. The language of this Agreement shall not be construed strictly for or against either party, regardless of who drafted such language or was principally responsible for drafting it. The rights and obligations under this Agreement are not assignable by you, and any attempted assignment shall be void and without effect. This Agreement shall bind and inure to the benefit of the parties and their successors and permitted assigns. In the event of any legal proceeding between the parties arising out of or related to this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and expert witness’ fees) incurred in any such proceeding.
18. ARBITRATION, WAIVER OF CLASSWIDE ARBITRATION, GOVERNING LAW & VENUE.
(A) GENERALLY. SUBJECT TO CLAUSE 17(D) BELOW, YOU AND PHYN EACH ACKNOWLEDGE AND AGREE THAT ANY CLAIM, DISPUTE OR CONTROVERSY BETWEEN YOU AND PHYN ARISING OUT OF OR RELATING TO (1) THIS AGREEMENT, INCLUDING THE VALIDITY OF THIS SECTION, AND (2) YOUR USE OF SOFTWARE AND/OR PRODUCT(S) UNDER THIS AGREEMENT (COLLECTIVELY, THE “DISPUTE”) SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY JAMS, A NATIONALLY RECOGNIZED ARBITRATION AUTHORITY, PURSUANT TO ITS CODE OF PROCEDURES THEN IN EFFECT FOR CONSUMER-RELATED DISPUTES. YOU UNDERSTAND THAT WITHOUT THIS PROVISION YOU WOULD HAVE HAD A RIGHT TO LITIGATE A DISPUTE THROUGH A COURT BEFORE A JURY OR JUDGE, AND THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THOSE RIGHTS AND AGREE INSTEAD TO RESOLVE ANY DISPUTES THROUGH BINDING ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.
(B) ARBITRATION PROCEDURES AND FEES. PRIOR TO SUBMITTING A CLAIM FOR ARBITRATION, EITHER PARTY SHALL FIRST NOTIFY THE OTHER PARTY TO TRY TO RESOLVE THE DISPUTE. IF THE DISPUTE IS NOT RESOLVED WITHIN 60 DAYS OF SUCH NOTIFICATION, THEN THE CLAIM WILL BE SUBMITTED FOR ARBITRATION. THE ARBITRATION OF ANY DISPUTE OR CLAIM SHALL BE CONDUCTED IN ACCORDANCE WITH THE THEN CURRENT AND APPLICABLE RULES OF JAMS AS MODIFIED BY THIS AGREEMENT. THE ARBITRATION SHALL OCCUR BEFORE A SINGLE ARBITRATOR, WHO MUST BE A RETIRED JUDGE OR JUSTICE, IN ONE OF SIX REGIONAL VENUES CONSISTENT WITH THE VENUE PROVISION BELOW. WHETHER OR NOT YOU PREVAIL IN THE DISPUTE, SO LONG AS YOUR CLAIM IS NOT FOUND TO BE FRIVOLOUS BY THE ARBITRATOR AS DETERMINED IN ACCORDANCE WITH RULE 11(b) OF THE FEDERAL RULES OF CIVIL PROCEDURE, YOU SHALL BE ENTITLED TO BE REIMBURSED FOR YOUR COSTS OF ARBITRATION, WITHIN THE SOLE DISCRETION OF THE ARBITRATOR. IF THE ARBITRATION AWARD IS EQUAL TO OR GREATER THAN THE AMOUNT YOU DEMANDED IN YOUR ARBITRATION CLAIM, PHYN WILL PAY FOR YOUR REASONABLE AND ACTUAL ATTORNEYS’ FEES YOU HAVE INCURRED TO ARBITRATE THE DISPUTE, PLUS A MINIMUM RECOVERY OF $2,500. ANY DECISION OR AWARD BY THE ARBITRATOR RENDERED IN AN ARBITRATION PROCEEDING SHALL BE FINAL AND BINDING ON EACH PARTY, AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. IF EITHER PARTY BRINGS A DISPUTE IN A COURT OR OTHER NON-ARBITRATION FORUM, THE ARBITRATOR OR JUDGE MAY AWARD THE OTHER PARTY ITS REASONABLE COSTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES) INCURRED IN ENFORCING COMPLIANCE WITH THIS BINDING ARBITRATION PROVISION, INCLUDING STAYING OR DISMISSING SUCH DISPUTE. ANY ARBITRATION SHALL BE CONFIDENTIAL, AND NEITHER YOU NOR PHYN NOR THE ARBITRATOR MAY DISCLOSE THE EXISTENCE, CONTENT OR RESULTS OF ANY ARBITRATION, EXCEPT AS MAY BE REQUIRED BY LAW OR FOR PURPOSES OF ENFORCEMENT OR APPEAL OF THE ARBITRATION AWARD. JUDGMENT ON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING PROPER JURISDICTION. IF ANY PORTION OF THIS ARBITRATION CLAUSE IS DETERMINED BY A COURT TO BE INAPPLICABLE OR INVALID, THEN THE REMAINDER SHALL STILL BE GIVEN FULL FORCE AND EFFECT.
(C) WAIVER OF CLASSWIDE CLAIMS; SMALL CLAIMS COURT. NEITHER YOU NOR PHYN SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CONSUMERS OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. YOU UNDERSTAND THAT WITHOUT THIS PROVISION YOU MAY HAVE HAD A RIGHT TO ARBITRATE A DISPUTE ON A CLASSWIDE OR REPRESENTATIVE BASIS, AND THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THOSE RIGHTS AND AGREE INSTEAD TO ARBITRATE ONLY YOUR OWN DISPUTE(S) IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION. NOTWITHSTANDING THE ABOVE AGREEMENT TO ARBITRATE DISPUTES, YOU AND PHYN EACH ACKNOWLEDGE AND AGREE THAT EITHER PARTY MAY, AS AN ALTERNATIVE TO ARBITRATION, BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT TO RESOLVE A DISPUTE, SO LONG AS SUCH SMALL CLAIMS COURT DOES NOT PROVIDE FOR OR ALLOW FOR JOINDER OR CONSOLIDATION OF CLAIMS.
(D) GOVERNING LAW; INJUNCTIVE RELIEF. THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION TO THE RIGHTS AND DUTIES OF THE PARTIES. HOWEVER, WITH RESPECT TO SOFTWARE PROVIDED, IF YOU ARE A CONSUMER AND YOU LIVE IN A COUNTRY WHERE PHYN MARKETS OR PROMOTES THE SOFTWARE, LOCAL LAW MAY REQUIRE THAT CERTAIN CONSUMER PROTECTION LAWS OF YOUR COUNTRY OF RESIDENCE APPLY TO SOME SECTIONS OF THIS AGREEMENT. IN ADDITION, PHYN MAY SEEK INJUNCTIVE RELIEF IN ANY COURT HAVING JURISDICTION TO PROTECT ITS INTELLECTUAL PROPERTY RIGHTS. EACH OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND THE UNITED NATIONS CONVENTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS IS HEREBY EXPRESSLY EXCLUDED AND WILL NOT APPLY TO THIS AGREEMENT.
(E) VENUE. EXCEPT FOR INDIVIDUAL SMALL CLAIMS ACTIONS WHICH CAN BE BROUGHT IN ANY SMALL CLAIMS COURT WHERE JURISDICTION AND VENUE ARE PROPER, ANY ARBITRATION, LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DISPUTE SHALL BE COMMENCED IN (1) NEW YORK, NEW YORK, (2) ATLANTA, GEORGIA, (3) CHICAGO, ILLINOIS, (4) DALLAS, TEXAS, (5) SEATTLE, WASHINGTON, OR (6) LOS ANGELES, CALIFORNIA, AND YOU AND PHYN EACH IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE FOR ANY SUCH PROCEEDING. HOWEVER, FOR A DISPUTE OF $10,000 OR LESS, YOU MAY CHOOSE WHETHER THE ARBITRATION IN ANY OF THE SIX REGIONAL VENUES PROCEEDS IN PERSON, BY TELEPHONE, OR BASED ONLY ON SUBMISSIONS.
19. GOVERNING LAW. The courts in some countries will not apply California law to some types of disputes. If you are resident in one of those countries, then where California law is excluded from applying, your country’s laws will apply to such disputes which are related to this Agreement. In all other circumstances, this Agreement will be governed by California law, without reference to its or any other jurisdiction’s conflict of laws principles. The courts in some countries will not allow for dispute resolution by arbitration or waiver of classwide claims by you. If you are resident in one of those countries, any action arising out of or relating to this Agreement may be brought exclusively in the appropriate state or federal court in Los Angeles, California, and Phyn and you irrevocably consent to the jurisdiction of such courts and venue in Los Angeles, California. However, if you are a consumer and you live in a country where Phyn markets or distributes the Software, local law may require that certain consumer protection laws of your country of residence apply to some sections of this Agreement. In addition, Phyn may seek injunctive relief in any court having jurisdiction to protect its intellectual property rights. Each of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods is hereby expressly excluded and will not apply to this Agreement.
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