Pholiofy Subscription Agreement
BY CLICKING THE “Sign Up” or “Subscribe” BUTTON DISPLAYED AS PART OF THE TRIAL AND ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF PHOLIOFY’S ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT USE THE SERVICE.
Pholiofy will provide you with use of the Service, including a dashboard, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Pholiofy website incorporated by reference herein, including but not limited to Pholiofy’s privacy and security policies.
1. Definitions and Interpretation
The following are the standard terms and conditions under which Pholiofy (“the Company”) sells the subscription service and supplies related services. These Terms and Conditions shall, unless otherwise expressly stated in writing, apply to the subject matter of any agreement in respect thereof.
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings: “Agreement” – means any agreements entered into between the Company and a Customer to which these standard Terms and Conditions apply; “Customer” – means the individual, business, or other organisation with whom the Company contracts; “Supplier” – means any supplier of Products or Services to the Company; “Products” – means software, applications and associated services that may be supplied by the Company; and “Services” – means any service supplied by the Company.
1.2 Any reference to a day or days refers to business days – that is any day which is not a weekend or public holiday in the Canada.
1.3 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
2. Privacy & Security; Disclosure
Pholiofy’s privacy and security policies may be viewed at http://www.pholiofy.com/privacy Pholiofy reserves the right to modify its privacy and security policies at its reasonable discretion from time to time.
3. License Grant & Restrictions
Pholiofy hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Pholiofy and its licensors.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorised access to the Service or its related systems or networks.
4. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Pholiofy immediately of any unauthorised use of any password or account or any other known or suspected breach of security; (ii) report to Pholiofy immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Pholiofy user or provide false identity information to gain access to or use the Service.
5. Account Information and Data
Pholiofy does not own any data, information or material that you submit to the Service in the course of using the Service (”Customer Data”). You, not Pholiofy, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Pholiofy shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. You should always maintain a copy of your data at another location. Pholiofy reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Pholiofy shall have no obligation to maintain any Customer Data.
6. Intellectual Property Ownership
Pholiofy alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Pholiofy Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Pholiofy Technology or the Intellectual Property Rights owned by Pholiofy. The Pholiofy name, the Pholiofy logo, and the product names associated with the Service are trademarks of Pholiofy or third parties, and no right or license is granted to use them.
7. Charges and Payment of Fees
Charges are monthly or yearly. You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments for the service must be made monthly in advance unless otherwise mutually agreed upon. All payment obligations are non-cancellable and all amounts paid are non-refundable. You must provide Pholiofy with valid credit card as a condition for subscribing to the Service. Pholiofy reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail.
8. Billing and Renewal
Pholiofy charges and collects monthly or yearly in advance for use of the Service. Pholiofy will automatically issue a receipt for each month upon receipt of payment. Pholiofy will automatically renew and bill your credit card each month or year on the subsequent anniversary or as otherwise mutually agreed upon. You agree to provide Pholiofy with complete and accurate billing and contact information. This information includes your legal name, street address, e-mail address, and name and telephone number of an authorised billing contact You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Pholiofy reserves the right to terminate your access to the Service in addition to any other legal remedies. If you believe your bill is incorrect, you must contact us in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
9. Non-Payment and Suspension
In addition to any other rights granted to Pholiofy herein, Pholiofy reserves the right to suspend or terminate this Agreement and your access to the Service if your payment is unsuccessful. Pholiofy reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Pholiofy has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 7 days or more delinquent.
10. Space and Usage
You are allocated a 50 megs of space. We do not have a fixed amount of monthly bandwidth for your use. We monitor server activity at all times. Should your site generate a large amount of traffic, we will contact you immediately via email, and inform you that we will be moving your site to a separate server and be charging you $30 per month. If we do not receive a confirmation email and a credit card payment for the $30, we reserve the right to suspend your account and delete the contents 7 days later.
11. Termination for Cause
Any breach of your payment obligations or unauthorised use of the Pholiofy Technology or Service will be deemed a material breach of this Agreement. Pholiofy, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that Pholiofy has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 7 days of notice of such breach.
12. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Pholiofy represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Pholiofy help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
13. Mutual Indemnification
You shall indemnify and hold Pholiofy, its licensors and each such party’s parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Pholiofy (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defence and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Pholiofy of all liability and such settlement does not affect Pholiofy’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Pholiofy shall indemnify and hold you and your parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Pholiofy of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Pholiofy; provided that you (a) promptly give written notice of the claim to Pholiofy; (b) give Pholiofy sole control of the defence and settlement of the claim (provided that Pholiofy may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Pholiofy all available information and assistance; and (d) have not compromised or settled such claim. Pholiofy shall have no indemnification obligation, and you shall indemnify Pholiofy pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
14. Disclaimer of Warranties
PHOLIOFY AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. PHOLIOFY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PHOLIOFY AND ITS LICENSORS.
15. Internet Delays
PHOLIOFY’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PHOLIOFY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. Proper Law and Jurisdiction
The Agreement shall be governed by and construed in accordance with the laws of British Columbia, Canada. Any dispute concerning it or its interpretation shall be adjudicated in that Jurisdiction.
Pholiofy may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Pholiofy’s account information.
20. Modification to Terms
Pholiofy reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
21. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Pholiofy but may be assigned without your consent by Pholiofy to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Pholiofy directly or indirectly owning or controlling 50% or more of you shall entitle Pholiofy to terminate this Agreement for cause immediately upon written notice.