These Terms of Service (these “Terms”) govern your access and use of the services (the “Services”) provided by Phaxio, Inc. (“Phaxio”) via its website located at http://www.phaxio.com (the “Site”).
Please read these Terms carefully. By clicking on the “Accept” button on the Site or by using the Services, you acknowledge and agree that you have read, understood and agree to be bound by all of the Terms.
If you are entering into these terms on behalf of a company or other entity, you represent that you are the employee or agent of such company (or other entity) and you have the authority to enter into these terms on behalf of such company (or other entity). For the purpose of these terms, you and, if applicable, such individual, company or other entity constitutes “Customer.” If you do not agree to any of the terms and conditions set forth in these terms, Phaxio is unwilling to permit you to use the Services. If you do not agree to these Terms, do not engage in any transactions on the Site.
These Terms are subject to change without prior written notice at any time, in Phaxio’s sole and absolute discretion. You waive any right you may have to receive specific notice of such changes and any changes will be effective immediately upon posting the revised Terms. Any changes to these Terms shall supersede and replace prior versions of the Terms and shall apply to all transactions made after the revised Terms go into effect. In addition, changes to these Terms shall apply to any unperformed obligations, terms or conditions associated with prior transactions. We recommend that you review these Terms regularly to understand the terms applicable to your transactions.
Please refer to https://www.phaxio.com/pricing for information on pricing for the Services. All prices for the Service are shown in U.S. dollars. Phaxio reserves the right to reject all or part of a request and to discontinue the Service without prior notice to you, even if you have already placed your order. All prices are subject to change without notice.
You may pay by check, electronic funds transfer or by valid credit cards (“Payment Method”). By submitting your order, you represent and warrant that you are authorized to use the Payment Method and authorize us to charge or debit your order (including taxes and any other amounts described on the Site or Services) to that Payment Method. If the Payment Method cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or canceled automatically. You must resolve any problem Phaxio encounters in order to proceed with your order. You agree to timely pay for any Service and all related additional amounts (including taxes and late fees, as applicable) (“Purchase Fees”) as may be accrued in connection with any purchase you make. There may be a temporary disruption in your ability to use the Service until Phaxio verifies the Payment Method information. You agree that Phaxio may use all legal means available to collect Purchase Fees should our attempts to charge or debit your Payment Method fail for any reason, including any collection agency and legal fees.
CANCELLATION AND REFUNDS
There are no refunds or cancellations, except as granted by Phaxio, in its sole discretion, as otherwise provided in these Terms or as required by law. Phaxio reserves the right to refuse or cancel purchases or attempted purchases at any time and in its sole discretion.
You are responsible for any taxes that you are obligated to pay or that Phaxio may collect from you in connection with your purchase. If you do not pay such sales or other taxes or fees on a transaction, you will be responsible for such taxes or fees in the event that they are later determined to be payable on such sale. Phaxio reserves the right to collect such taxes or other fees from you at any time.
GRANTS AND RESTRICTIONS
Subject to the Terms, Phaxio hereby grants to Customer a non-exclusive, non-transferable and revocable right to access and use the Services. Customer hereby grants to Phaxio a non-exclusive right to access, use, reproduce, modify and create derivative works of any and all documents and other materials uploaded by Customer to Phaxio’s system in order to use the Services (“Customer Data”). Customer will not, and will not allow any third party to: (a) disclose to any third party any performance information or analysis relating to the Services; (b) sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Services (any component thereof) or any materials contained in the Site; (c) distribute, publicly perform or publicly display any materials contained in the Site; (d) use any data mining, robots or similar data gathering or extraction methods with respect to the Site or the Services; (e) download (other than the page caching) any portion of the Site (including, but not limited to, any materials contained in the Site); (f) use of the Site, the materials contained in the Site or the Services other than for its intended purpose; and (g) remove, obscure or alter any notice of copyright, trademark or other proprietary right appearing on or in the Site or the Services. Customer will permit Phaxio, at all reasonable times, and at Phaxio’s expense, to verify that the use of the Services is in compliance with the terms of these Terms.
Phaxio will use commercially reasonable efforts to provide the Services to Customer. Notwithstanding any terms to the contrary in these Terms, if Customer’s use of the Services overburdens or impairs the functioning of the Services in any manner, Phaxio may prohibit Customer from using the Services on such occasion or entirely. Customer must use reasonable security precautions in connection with Customer’s use of the Services. Customer must comply with all federal, national, state, provincial, municipal and local laws, regulations, rules, judicial decrees, decisions and judgments in each and every jurisdiction (“Laws”) applicable to Customer, Phaxio and the subject matter of these Terms and/or the Services with respect to Customer’s use of the Services. Customer must cooperate with Phaxio’s reasonable investigation of downtime/outages, security problems and any suspected breach of these Terms. Customer agrees to: (a) provide accurate, current and complete information about Customer as may be prompted by any signup, login and/or registration forms on the Site (“Registration Data”); (b) maintain the security of Customer password and identification; (c) maintain and promptly update the Registration Data, and any other information Customer provides to Phaxio, in order to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information Customer provides to Phaxio. Customer agrees not to upload to, transmit, distribute, store, create or otherwise publish through the Site any of the following:
- Material that may infringe or violate any patent, trademark, trade secret, copyright, right of privacy, right of publicity or other intellectual or other right of any party;
- Viruses, corrupted data or other harmful, disruptive or destructive files; and
- Material that is libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, violent, harassing, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive or otherwise objectionable.
Customer further agrees not to:
- Use the Site or the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Site or the Services or that could damage, disable, overburden or impair the functioning of the Site or the Services in any manner;
- Use the Site or the Services for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms or any other rules or polices established from time-to-time by Phaxio; and
- Circumvent or attempt to circumvent any filtering, security measures or other features designed to protect the Site, the Services, users of the Site or the Services or third parties.
Customer represents and warrants that: (a) all Customer Data is either the sole property of Customer or has been collected from a third party by Customer in accordance with Customer’s privacy guidelines; (b) Customer’s privacy guidelines comply with all applicable Laws; (c) Customer has obtained all consents required by the applicable Laws to transfer all of the Customer Data to Phaxio for use of the Services and storage by Phaxio within the United States; (d) all of Customer’s registration and account information is true, accurate and complete; and (e) Customer will maintain the security of Customer’s password.
Notwithstanding any terms to the contrary in these Terms, Phaxio may disclose Customer Data: (a) as required by any applicable Laws; or (b) in response to a subpoena or other compulsory legal process.
Phaxio is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services. Customer is responsible for: (a) the use of the Services by any employee of Customer or any person to whom Customer has given access to the Services; and (b) any person who gains access to Customer Data or the Services as a result of Customer’s failure to use reasonable security precautions (even if such use was not authorized by Customer).
As between the parties and subject to the grants in these Terms: (a) Customer owns all right, title and interest in and to the Customer Data and any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing embodied therein (“Intellectual Property Rights”); and (b) Phaxio owns all right, title and interest in and to the Services (including, but not limited to, the software components of the Services), the Site, all content and other materials on the Site and any and all Intellectual Property Rights embodied therein. This provision will survive the use of the Services.
THIRD PARTY CONTENT
Phaxio may provide third party content on the Site and may provide links to website and content of third parties (collectively the “Third Party Content”) as a service to those interested in this information. Phaxio does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content including, but not limited to, its accuracy or completeness. You acknowledge and agree that Phaxio is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk. This provision will survive the use of the Services.
The Phaxio logo or slogan contained in the Site (or made available via the Services) are trademarks of Phaxio and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Phaxio or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “Phaxio” or any other name, trademark or product or service name of Phaxio without our prior written permission. In addition, the look and feel of the Site and the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Phaxio and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site (or made available via the Services) are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
CUSTOMER ACKNOWLEDGES AND AGREES THAT: (A) THE SERVICES REQUIRE ACCESS TO AND USE OF THE INTERNET; (B) PHAXIO IS NOT RESPONSIBLE FOR OPERATING OR MAINTAINING CUSTOMER SERVERS OR CUSTOMER’S CONNECTION TO THE INTERNET TO ACCESS AND UTILIZE THE SERVICES; AND (C) THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER DATA. PHAXIO PROVIDES THE SERVICES AND THE SITE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. PHAXIO DOES NOT WARRANT THAT THE SERVICES OR THE SITE WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. PHAXIO AND ITS SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SITE AND THE SERVICES WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT PHAXIO KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS RELIED ON NO WARRANTIES. THIS PROVISION WILL SURVIVE THE USE OF THE SERVICE.
Customer, at its sole expense, will defend, indemnify and hold Phaxio and its directors, officers, shareholders, employees, consultants, affiliates and agents (collectively, “Phaxio Indemnitees”) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees and costs, expert witnesses’ costs and fees, penalties, interest and disbursements) arising from or relating to any suit, action, or proceeding against any Phaxio Indemnitees, whether successful or not, caused by, arising out of, resulting from, attributable to or in any way incidental to: (a) any breach by Customer of these Terms (including, but not limited to, any breach by Customer of its representation or warranties); or (b) Customer Data (including, but not limited to, any violation, misappropriation or infringement of any third party’s Intellectual Property Rights or rights of privacy or right of publicity).
LIMITATION OF LIABILITY
IN NO EVENT WILL: (A) PHAXIO BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SERVICES, THE SITE OR THE THIRD PARTY CONTENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) PHAXIO’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICES, THE SITE OR THE THIRD PARTY CONTENT EXCEED THE AMOUNT PAID BY CUSTOMER TO PHAXIO UNDER THESE TERMS (IF ANYTHING). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THIS PROVISION WILL SURVIVE THE USE OF THE SERVICE.
TERM, TERMINATION & EFFECTS OF TERMINATION
Unless terminated as set forth in these Terms, the term of these Terms will be as determined by Phaxio in its sole discretion. Phaxio may terminate these Terms, for cause, if Customer breaches these Terms. Except as otherwise provided in these Terms, upon the termination of these Terms: (a) all licenses granted to Customer herein will terminate; and (b) Phaxio may delete all Customer Data.
These Terms will be governed by and construed in accordance with the laws of the State of Illinois applicable to agreements made and to be entirely performed within the State of Illinois, without resort to its conflict of law provisions. The parties agree that any action at law or in equity arising out of or relating to these Terms will be filed only in the state and federal courts located in Cook County, Illinois and the parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms.
Phaxio will not be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers being used by Phaxio, the Internet, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.
Last Revised: 3/30/2016