EFFECTIVE DATE: March 20, 2020
License terms and conditions - applicable worldwide except where we publish specific territorial terms and conditions.
These terms and conditions (“Terms”) set out important information regarding the rights, obligations and restrictions that may apply to you as a “User” when you access our “Website” at https://www.phile.app and/or access, use or download the Phile “Application” available on “Devices” such as cell phones, tablets, and personal computers, and any “Services” offered in conjunction with the Application or Website. The Services may include content and media identification and exploration and, in some cases, access to related “Third Party Applications and/or Sites” that can be used in conjunction with the Services (for example, e-commerce providers, social networking sites, sites accessible via QR codes, information and access feature providers). The Services, where not specifically provided otherwise, are supplied by Never Brunch LLC (“Phile”, “Never Brunch,” “we”, “our”, “Company”, or “us” as appropriate). We are a limited liability company registered in Colorado under number 20171749432. You can contact us by email firstname.lastname@example.org.
By using our Services, you (1) represent you are over the age of 12; and (2) agree to be bound by these Terms and any applicable laws regarding your use of Phile. You must also pay any charges for the Services which may be applicable. Do not use the Services if these terms are unacceptable to you.
1. In the event that you are or become a paying customer of any part of the Application and/or Services or any other product part of the Phile offering, we will provide to you relevant information regarding price, delivery procedure, and cancellation options on a case–by-case basis, before completing the payment for your purchase. Any purchase will be effective upon the processing of your payment.
2. Each time you attempt to interact with Phile, such as when you search for a movie for example, you will send data for which your network operator will charge at your usual data rates.
3. Unless otherwise specifically provided by us, our license to you under these Terms is personal to you and allows you to access and use the Application and the Services only on the Device on which the software was first installed. The license is not transferable to another person or another Device without our agreement, which will only be given in exceptional circumstances, or if otherwise expressly provided in these Terms.
General Purpose of Terms: Sale of Service, not Software: The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of the Company’s Software, and, furthermore, any use of the Company’s Software by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms.
Payment: You agree to 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. Currently, all payments are made through the Application. If the Company offers alternative methods of payment, you may be required to provide the Company with a valid credit card or payment account accepted by Company (“Payment Provider”). Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing the Company with your credit card number and associated payment information, you agree that the Company is authorized to immediately invoice your Account for all fees and charges due and payable to the Company hereunder and that no additional notice or consent is required. You agree to immediately notify the Company of any change in your billing address or the credit card used for payment hereunder. The Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Company Properties or by email delivery to you.
Service Subscription Fees: You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you upgrade to a premium subscription (each, a “Service Commencement Date”). Except as set forth in the Terms, all fees for the Services are non-refundable. No contract will exist between you and the Company for the Services until the Company accepts your order by a confirmatory email or other appropriate means of communication.
Taxes: The Company’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to the Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify the Company for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that the Company is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
Withholding Taxes: You agree to make all payments of fees to the Company free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to the Company will be your sole responsibility, and you will provide the Company with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
Automatic Renewal: Your subscription will continue indefinitely until terminated in accordance with the Terms. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at the Company’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date by logging into the account settings of the App Store used for your purchase. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please log in and go to the account settings of the App Store used for your purchase. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize the Company to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if the Company does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that the Company may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
Free Trials: Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact the Company to have the charges reversed.
Other Promotions: We may run promotional offers from time to time on the Website. The terms of any such promotion will be posted on the Website. Unless otherwise indicated, we may establish and modify, in our sole discretion, the terms of such offer and end such offer at any point.
Disputes: You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to email@example.com.
You agree to use the Services for non-commercial use and, above all, fairly. The Services are not to be used for commercial or performance monitoring purposes. Phile reserves the right to limit your identification attempts in any month, or cease to provide our Service to you without further notice.
We may change, suspend or discontinue any aspect of Phile at any time, including the availability of any feature, database and/or content. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without liability. Where these changes or suspensions would amount to a complete termination of the Services you may be entitled to a refund of the reasonable part of any charges paid by you.
Continued use of the Application and/or Services may require a download of new releases of software with different functionality and that may have different license terms.
We will do our best to offer you a smooth service, but we give no guarantees that Phile will be fault free or that the Services will be uninterrupted. If a fault does occur, please report it to firstname.lastname@example.org or by using our in-app support options, and we will attempt to correct the fault as soon as we reasonably can.
We will occasionally restrict your access to the Website or to the Services to carry out repairs, maintenance or to introduce new functionality or services and we will strive to keep disruption to a minimum.
New Services are subject to a period of testing. This means that a new Service may not perform with complete functionality, may be undergoing testing, may be inconsistently available, may have software “bugs” being fixed by us and may have other issues affecting availability and functionality.
You acknowledge that Phile’s Website and Applications (and any other Third Party Applications and/or Sites) licensed by us to you are our property (or that of the relevant third party). You are granted a limited, revocable, non-exclusive, non-transferable (without the right to sublicense) license to use Phile or any Third Party Application and/or Site for the purpose of accessing and using the Services. Except as expressly authorized by us, you may not copy, modify, translate, reproduce, distribute, publish, broadcast, perform, display, sell, assign, lease or sub-license that content, in whole or in part. You agree not to disassemble, de-compile, reverse engineer, or otherwise attempt to gain access to the source code of the Application or Services or any Third Party Application and/or Site. You will not copy any part of Phile or any Third Party Applications and/or Sites or make commercial use of, rent, lease, loan, sell, publish, license, sublicense, distribute, assign or otherwise transfer any part of Phile or such Third Party Application and/or Site to any person.
You agree to not use Phile to: (i) interfere with, manipulate, or take any actions that may undermine the integrity of any rating system used on the Services; (ii) interfere with or disrupt Phile or servers or networks, or disobey any requirements, procedures, policies or regulations of networks connected to these; (iii) collect or store personal data about other Users of Phile; or (iv) harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any other User without their prior explicit consent.
You will not alter, destroy, obscure, or otherwise remove any copyright or proprietary notices or labels on or embedded within any part of Phile and/or any Third Party Applications and/or Sites.
Your use of phile is at your sole risk. Phile is provided on an “as is” and “as available” basis. We expressly disclaim all representations, warranties and statutory remedies of any kind, whether express or implied, to the maximum extent permitted by applicable law, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. To the maximum extent permitted by applicable law, we make no warranty that (i) phile will meet your requirements; (ii) delivery of any portion of phile will be uninterrupted, timely, secure, or error-free; (iii) the results that may be obtained from the use of phile will be accurate or reliable; (iv) the quality of any products, services, information, or other material purchased or obtained by you through the services will meet your expectations; (v) any errors in the software will be corrected; (vi) any portion of phile or any other application provided by us will be of satisfactory quality, fault or virus free or uninterrupted or satisfy any conditions of quality and fitness for purpose. No advice or information, whether oral or written, obtained by you from us or through or from the application, website or services shall create any warranty not expressly stated in these terms.
Under no circumstances will we or our respective parents, subsidiaries, and affiliates, suppliers and their respective owners, officers, manager, members, agents and employees, be liable to you for loss of profits, business interruptions, loss of business information, loss of business, opportunity or other pecuniary loss, loss of data or any direct, indirect, incidental, consequential, special, exemplary, or punitive damages or losses, whether based in contract, tort or otherwise, arising out of or in connection with use of, or inability to use Phile (and any other applications) which we license to you, any content delivered to you or Phile, whether or not we have been advised of the possibility of such damages or loss. In any event, our liability to you shall be limited to typical and foreseeable damage and shall not exceed the fees for a three (3) month period or the maximum amount of eight dollars ($8), whichever is higher. Some jurisdictions (countries, provinces, states) absolutely prohibit some limitations on liability, disclaimer of warranties or exclusion of direct or consequential damages. In such cases only, the above disclaimers, limitations or exclusions may not apply to you to their full extent.
You hereby indemnify and hold harmless, and upon our request, defend, (1) us, our affiliates and their respective directors, officers and employees; and (2) providers of Third Party Applications and/or Sites, from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) arising out of any claim, action, or proceeding brought by a third party based on a breach of any warranty, representation, covenant or obligation by you under these Terms. You will reimburse us, our affiliates, and providers of Third Party Applications and/or Sites, as applicable, on demand for any actual payments made in resolution of any liability or claim that is subject to indemnification under this Section, provided that we attempt to obtain your written consent prior to making such payments, such consent not to be unreasonably withheld, delayed or conditioned. We shall promptly notify you of any such claim, and you shall assume control of the defense of such claim upon our request. We shall have the right, at your expense, to participate in the defense thereof under your reasonable direction.
Nothing in these Terms shall be construed so as to exclude or limit our liability or that of any third party for death or personal injury as a result of negligence. Nothing in these Terms affects any mandatory statutory rights that you may have as a consumer, except to the extent permitted by law.
We may assign our rights and obligations under these Terms without your prior consent to any new provider of the Phile Services. If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then the provision will be deleted. Any such deletion will not affect the validity and enforceability of any of the other provisions of these Terms.
We may at any time terminate your account or prevent you from gaining access to Phile. We will not be liable to you or to any third party for any failure, suspension and/or termination of access to Phile in any way.
If you have any queries regarding us, the Website, Application and/ or Services, please contact us by email at email@example.com.
We may amend these Terms at any time by posting the amended terms on our Website and/ or by amending the Terms as they are accessed from the Application on your Device. It is your responsibility to review these Terms from time to time to check if they have been amended. The effective date of each new version of the Terms will be included at the top of the Terms page. If you continue to use the Application and/ or Services or you download any content or upgrade any of the Services after we have posted any amended terms that will demonstrate that you accept our updated Terms. Should you not accept these amendments, you may terminate the Services.
We welcome your feedback on what we are currently doing (both positive and negative). If you want to send us your feedback, we ask that you use our contact form. Any feedback you provide to us can be used by us on an unrestricted basis and treated by us as non-confidential.
Please do not tell us anything that contains new or original ideas, in respect of which you might want, now or in future, to claim any form of proprietary rights. If, despite our request that you not send us your ideas, you still send them to us, then regardless of what you say to us, you agree that: (i) your submissions and their contents will automatically become our property, without any compensation to you; (ii) you will not assert against us any rights or ownership and you will not claim any reward (financial or otherwise) in respect of any such submissions; (iii) we may use or redistribute the submissions and their contents for any purpose and in any way; (iv) there is no obligation for us to review any material that you submit to us; and (v) there is no obligation to keep any such material confidential.
These Terms and the relationship between you and us shall be governed by the laws of Colorado without regard to its conflict of law provisions. In the event of a dispute, we want to address your concerns without needing a formal legal case. Before filing a claim against us, you agree to try to resolve the dispute informally by contacting firstname.lastname@example.org. We’ll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within fifteen (15) business days of submission, you or Phile may bring a formal proceeding.
Outside of the United States. You and we agree to submit to the personal and exclusive jurisdiction of the courts of Colorado.
In the United States. Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the terms may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR provider”) that offers arbitration as set forth in this section and under the rules of such adr provider, except to the extent such rules are in conflict with the terms. The party demanding arbitration will propose an ADR provider and the other party shall not unreasonably withhold consent to use such ADR provider. The ADR provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR provider. Notwithstanding the foregoing, the company may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from Colorado law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the company properties.
Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the federal arbitration act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the american arbitration association (“aaa”). As modified by the terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the aaa’s commercial arbitration rules and, if the arbitrator deems them applicable, the supplementary procedures for consumer related disputes (collectively “rules and procedures”).
You are thus giving up your right to go to court to assert or defend your rights except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator and not a judge or jury. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by a court.
You and the company must abide by the following rules: (i) any claims brought by you or the company must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding; (ii) the arbitrator may not consolidate more than one person’s claims, may not otherwise preside over any form of a representative or class proceeding, and may not award class-wide relief; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, the company will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) the company also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
The arbitral proceedings, and all pleadings and written evidence will be in the english language. Any written evidence originally in a language other than english will be submitted in english translation accompanied by the original or true copy thereof. The english language version will be controlled. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by california law or united states federal law.
Notwithstanding the foregoing, either you or the company may bring an individual action in small claims court. Further, claims of defamation, violation of the computer fraud and abuse act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Denver, Colorado. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Salt Lake County, Utah, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within salt lake county, utah for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the rules and procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Denver, Colorado. By using the company properties in any manner, you agree to the above arbitration provision.
This Policy was last revised on March 20, 2020.
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