This is a legally binding agreement. Please read these terms and conditions carefully. By indicating your acceptance of this agreement, you represent that you have the full legal authority to enter this agreement yourself or on behalf of the party identified in the registration process, and in that capacity you acknowledge your agreement or such party’s agreement to be bound by the terms and conditions set forth below.
This agreement (the “Agreement”) is between PHY.net, a Delaware corporation (“PHY.net”), and the party (“Customer”) indicated during the online registration process for establishing a PHY.net customer account (the “Account Registration”). This Agreement is effective upon its acceptance by Customer in the course of the Account Registration (the “Effective Date”). The information entered by or on behalf of Customer during the Account Registration, as updated from time to time, is incorporated herein and made a part of this Agreement.
This Agreement sets forth the terms and conditions for access to and use of the PHY.net services to which Customer subscribes from time to time. The pricing, initial subscription term, and other terms (if any) indicated when Customer elects to subscribe to PHY.net services (the “Additional Terms”), as amended from time to time in accordance with this Agreement, are incorporated herein and made a part of this Agreement. Certain optional services associated with the PHY.net services, such as use of the PHY.net SDK by software developers, may be set forth in addenda accepted by Customer from time to time, each of which is incorporated herein and made a part of this Agreement.
1. Certain Definitions.
“Administrative User” means the individual person identified during Account Registration as the person that PHY.net has authorized to grant and revoke access to and use of the Services by Authorized Users or such other person substituted for the then-current Administrative User in accordance with procedures implemented by PHY.net from time to time.
“Authorized User” means the Administrative User and any employee or individual independent contractor (or employee of an independent contractor) of Customer (i) who is granted access to and use of the Services in accordance with this Agreement and in accordance with procedures implemented by PHY.net from time to time or (ii) who downloads or uses the BKON Configuration App pursuant to this Agreement.
“BKON Configuration App” means that certain software application (app) published by PHY.net for use on Mobile Devices to configure and administer BKON-brand beacons.
“Confidential Information” means any information of any type in any form that (i) is disclosed to or observed or obtained by one party from the other party (or from a person the recipient knows or reasonably should assume has an obligation of confidence to the other party) in the course of, or by virtue of, this Agreement and (ii) either is designated as confidential or proprietary in writing at the time of such disclosure or within a reasonable time thereafter (or, if disclosure is made orally or by observation, is designated as confidential or proprietary orally by the person disclosing or allowing observation of the information) or is of a nature that the recipient knew or reasonably should have known, under the circumstances, would be regarded by the owner of the information as confidential or proprietary. Without limiting any other provisions of this Agreement, and whether or not otherwise meeting the criteria described herein, the Licensed Materials shall be deemed conclusively to be Confidential Information of PHY.net. For purposes of this Agreement, however, the term “Confidential Information” specifically shall not include any portion of the foregoing that (i) was in the recipient’s possession or knowledge at the time of disclosure and that was not acquired directly or indirectly from the other party, (ii) was disclosed to the recipient by a third party not having an obligation of confidence of the information to any person or body of which the recipient knew or which, under the circumstances, the recipient reasonably should have assumed to exist, or (iii) is or, other than by the act or omission of the recipient, becomes a part of the public domain not under seal by a court of competent jurisdiction.
“Customer Branding Materials” means all text, pictures, sound, audio, graphics, video, and other materials and data (including without limitation any trademark, service mark, or trade dress, whether or not registered), supplied to PHY.net by Customer or at Customer’s direction, including without limitation such data entered or otherwise transmitted to the Services, for use in a branded or otherwise customized End User App.
“Customer Content” means all text, pictures, sound, audio, graphics, video, and other materials and data supplied to PHY.net by Customer or at Customer’s direction, including without limitation such data entered or otherwise transmitted to the Services and further including without limitation any such data provided by PHY.net personnel at the request or instruction of Customer, for display on Mobile Devices accessing web pages or metadata served by PHY.net through the Services.
“Customer Data” means all data maintained in the Services relating to, or generated from, Digital Touchpoints registered by Customer in the Services, other than Usage Data.
“Digital Touchpoint” means a physical web beacon, a QR code, an NFC tag, or other proximity technology supported by PHY.net from time to time that broadcasts or represents a URL.
“Documentation” means all documentation (whether printed or in an electronic retrieval format) supplied or made available to Customer by PHY.net for use with or in support of the Services or the BKON Configuration App (if applicable), including without limitation any and all revisions, modifications, and updates thereof as may be supplied or made available by PHY.net to Customer during the term of this Agreement and all copies thereof made by or on behalf of Customer.
“End User App” means a software application (app) that PHY.net makes available for download to Mobile Devices by individuals for such Mobile Devices to interact with Digital Touchpoints registered in the Service and to display content from the Services and other sources.
“Hosted Web Site” means the software comprising all web pages served to Mobile Devices (or stored for such purpose) by PHY.net through the Services exclusive of the Customer Content associated therewith.
“Licensed Materials” means the Services, the Hosted Web Sites (if applicable), the PHY.net API (if applicable), the BKON Configuration App (if applicable), and the Documentation.
“Losses” means all losses, liabilities, damages, awards, settlements, claims, suits, proceedings, costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, expert witness fees, settlement, judgment, interest, and penalties).
“Mobile Device” means a smart phone, tablet, or other such device that provides a web browser or camera capable of interpreting URLs broadcast or represented by Digital Touchpoints.
“PHY.net API” means an application programming interface supplied or made available to Customer by PHY.net to enable automated transfer of data between the Services and a Customer system or other data source or target.
“Services” means PHY.net’s online Digital Touchpoint registry and management service, content management service, and other services provided by PHY.net on a hosted basis, together with any associated software applications, database structures and queries, interfaces, tools, and the like, and any and all revisions, modifications, and updates thereof, as made available by PHY.net to Customer pursuant to this Agreement, all as may be provided by PHY.net to Customer from time to time pursuant to this Agreement.
“Subscription Term” has the meaning ascribed in Section 2.
“Usage Data” means (i) statistical information regarding the use of and interaction with the Services or Hosted Web Sites by Mobile Devices and (ii) and metadata regarding or de-identified versions of Customer Data, provided that such statistical information, metadata, and de-identified data reasonably cannot be used to identify Customer, a Mobile Device, or any individual.
2. Term of Agreement. The term of this Agreement (the “Subscription Term”) shall commence as of the Effective Date and, unless otherwise terminated for breach as provided herein, shall continue until either party notifies the other of termination for convenience upon 30 days’ notice; provided, however, that if PHY.net terminates this Agreement for convenience, PHY.net shall refund to Customer on a pro rata basis any fees prepaid by Customer under this Agreement. Such fees are non-refundable in the event of termination for convenience by Customer.
(a) Grant of License. Subject to terms and conditions of this Agreement, PHY.net grants to Customer a non‑exclusive, non‑transferable (except as otherwise provided herein) license during the Subscription Term for Authorized Users to access and use the Services through PHY.net’s web portal and, if applicable, the PHY.net API and to use relevant Documentation, all in accordance with the terms of this Agreement. The license granted in this paragraph also permits (i) use of the Services, to the extent Customer has subscribed to such services, for creation and/or storage of Customer Content to be displayed on Mobile Devices accessing web pages served by PHY.net through the Services and (ii) downloading, installing, and using the BKON Configuration App on a Mobile Device strictly in accordance with all Documentation supplied or made available by PHY.net for the BKON Configuration App.
(b) Customer IT Environment. Customer shall be responsible for selecting, obtaining, and maintaining any equipment, computer software, Internet access, or other services needed to connect to or otherwise access the Services, including without limitation use of Internet browsers or other information technology described in the FAQs published by PHY.net on its web site at https://help.phyplatform.support/hc/en-us/categories/115000352028-Frequently-Asked-Questions. PHY.net may amend or replace the information in such FAQs at any time by posting updated terms at the foregoing web page.
(c) Logon Credentials and Data Security. Customer shall not, and shall ensure that Authorized Users and other of Customer’s personnel do not, share logon credentials or attempt to access the Services without providing valid logon credentials specific to such individual. Customer shall be solely responsible for and shall maintain adequate technical, physical, and procedural access controls with regard to Customer’s access to the Services. Customer shall cause each Authorized User to change his or her password at such intervals and upon such circumstances as Customer deems appropriate and prudent or as directed or enforced by PHY.net in its sole discretion. Customer shall cause each Authorized User to utilize a password of sufficient complexity as Customer deems appropriate and prudent or as directed or enforced by PHY.net in its sole discretion. Customer shall maintain or cause to be maintained the confidentiality and security of all Authorized User logon credentials. Customer shall notify PHY.net immediately of any unauthorized access to or use of Authorized User logon credentials or any other breach of security. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ALL USE OR MISUSE OF AUTHORIZED USER LOGON CREDENTIALS. PHY.net shall not be liable to Customer (or to any party claiming by or through Customer) for, and Customer shall indemnify, defend, and hold harmless PHY.net, its affiliates, and their respective directors, officers, employees, and agents from and against any Losses resulting from or relating to, Customer’s failure to maintain its obligations set forth in this paragraph or any unauthorized use or disclosure of information not directly caused by the gross negligence or willful misconduct of PHY.net. Any provision of this Agreement to the contrary notwithstanding, any direction or enforcement by PHY.net of password parameters or usage described in this paragraph, and any failure to do so, shall not give rise to any liability on the part of PHY.net.
(d) Acceptable Use Policy. In using the Services, Customer shall comply, and shall cause each Authorized User to comply, with the terms of PHY.net’s Acceptable Use Policy, which is available at https://www.phy.net/legal/aup and is incorporated herein and made a part of this Agreement. PHY.net may amend or replace the Acceptable Use Policy at any time by posting updated terms at the foregoing web page.
(e) Compliance with Law. Customer warrants that it will not use the Licensed Materials in any way that violates any federal, state, local, or international law or regulation (including without limitation any laws regarding the export of data or software to and from the U.S. or other countries and laws regarding the collection, use, or disclosure of personally-identifiable information).
(f) No Regulated PII or Card Information. Customer warrants that no Customer Content and no Customer Data transmitted to the Service by a Mobile Device will contain (i) any personally‑identifiable information or personal data of a type or character (other than an app instance identification number) the use, maintenance, processing, transmission, or disclosure of which would impose any obligation or liability upon PHY.net under any law or regulation or (ii) any information that is the subject of, or that would subject PHY.net to, the Payment Card Industry Data Security Standards.
(g) Service Availability; Error Correction; Enhancements. Subject to the terms and conditions of this Agreement, provided Customer is not in breach of its obligations under this Agreement, PHY.net shall use commercially reasonable efforts to make the Services available via the Internet for access and use by Customer pursuant to this Agreement other than during reasonable periods of interruption for maintenance and repair. PHY.net shall use commercially reasonable efforts to correct a reported malfunction or to provide a reasonable workaround sufficient to alleviate any material adverse effect of the problem on the utility of the Services, provided that Customer assists PHY.net in identifying and correcting a problem that PHY.net reports by making available information, documentation, access to personnel, and testing reasonably requested by PHY.net. From time to time at its sole discretion, PHY.net also may implement releases of the Licensed Materials that contain changes, updates, patches, fixes, enhancements to functionality, and/or additional functionality. PHY.net in its sole discretion will determine whether to include in the Licensed Materials, as part of the maintenance services hereunder, features or functionality offered in other products that could be incorporated into the Licensed Materials, and PHY.net shall have no obligation to disclose or offer to Customer any such products, features, or functionality.
(h) Suspension of Services. Any provision of this Agreement to the contrary notwithstanding, if PHY.net reasonably believes that use of the Service by any Authorized User or other use through Customer’s account will or could disrupt operation of the Service, other customers’ use of the Service, or the infrastructure used to provide the Service, or will or could result in unauthorized access to the Service or information stored or processed by or through the Service, PHY.net without notice to Customer may suspend or limit use of the Service to the extent and for such time as PHY.net reasonably deems necessary or appropriate. PHY.net further reserves the right, without notice, to disable any user name, password or other identifier of an Authorized User or otherwise suspend access to and use of the Services at any time if, in PHY.net’s reasonable discretion, such Authorized User has violated any provision of this Agreement, including without limitation PHY.net’s Acceptable Use Policy.
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Third Party Content
In no event shall any reference on the Site to any third party, third-party web site, or third-party product or service be construed as an approval or endorsement by us of that third party, third-party web site or of any product or service provided by a third party.
You understand that Third Party Content may be deemed offensive, indecent, or objectionable and may or may not be identified as having explicit language. Nevertheless, you agree to use the Third Party Content at your sole risk and that PHY.net shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
Information displayed by the Site is for general informational purposes only and is not intended to be relied upon as investment or medical advice. Location data provided by or through the Site is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage.
PHY.net reserves the right to change, suspend, remove, or disable access to the Site or any Third Party Content at any time without notice. In no event shall PHY.net be liable for the removal of or disabling of access to the Site or any such Third Party Content. PHY.net also may impose limits on the use of or access to the Site or certain Third Party Content in any case and without notice or liability.
This agreement does not grant you any right, title, interest, license (express or implied) to any patent, trademark, service mark, copyright, trade secret or other intellectual property right of PHY.net. Modification of any aspect of the Site or any Third Party Content is expressly prohibited. You are also prohibited from utilizing the Site in any way that would damage its content or visibility for other visitors. As between PHY.net and you, PHY.net has and retains exclusive and valid ownership of the Site, the names and marks thereof, and all intellectual property, proprietary rights and documentation therein, and you acknowledge that the foregoing constitute valuable assets and may constitute trade secrets of PHY.net. No portion of the Site or Third Party Content may be reproduced in any form or by any means.
PHY.NET, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, LICENSORS AND RELATED THIRD PARTIES (THE “PHY.NET ENTITIES”) DISCLAIM ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, COMPLETENESS, LEGALITY, RELIABILITY, OPERABILITY OR AVAILABILITY OF INFORMATION OR CONTENT. THE PHY.NET ENTITIES DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR CONTENT FROM THE SITE OR ANY THIRD PARTY CONTENT. THE PHY.NET ENTITIES DO NOT MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SITE. THE SITE AND ANY THIRD PARTY CONTENT ARE DISTRIBUTED ON AN “AS IS, AS AVAILABLE” BASIS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY POTENTIAL DAMAGES THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT. THE PHY.NET ENTITIES DO NOT MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SITE OR ANY THIRD PARTY CONTENT. YOU EXPRESSLY AGREE THAT YOU WILL ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE AND THE ACCURACY OR COMPLETENESS OF THE SITE OR ANY THIRD PARTY CONTENT.
THE PHY.NET ENTITIES SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, OR DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE SITE OR ANY THIRD PARTY CONTENT, OR ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITE OR ANY THIRD PARTY CONTENT, EVEN IF THE PHY.NET ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE PHY.NET ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Interruption of Service
We do not guarantee continuous, uninterrupted or secure access to the Site or that the operation of the Site will not be interfered with or adversely affected by numerous factors or circumstances outside of our control.
Digital Millennium Copyright Act
If you believe that content you own has been copied and made accessible in a manner that violates your intellectual property rights, please notify us immediately. You may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our designated agent at email@example.com with the information required in 17 U.S.C. § 512(c)(3). PHY.net may, in its sole discretion, terminate the accounts of repeat infringers.
6. Limitations and Restrictions. Customer shall not do, nor shall it authorize any person to do, any of the following: (i) use the Licensed Materials for any purpose or in any manner not specifically authorized by this Agreement; (ii) make any copies or prints, or otherwise reproduce or print, any portion of the Licensed Materials, whether in printed or electronic retrieval format, except as expressly provided in this Agreement; (iii) distribute, republish, download, display, post, or transmit any portion of the Licensed Materials except as expressly authorized by this Agreement; (iv) create or recreate the source code for any or all of the Licensed Materials in object/executable or encrypted source code form, or re-engineer, reverse engineer, decompile, disassemble, modify, or alter any or all of the Licensed Materials except as may be expressly authorized in this Agreement; (v) modify, adapt, translate, or create derivative works based upon any part of the Licensed Materials, or combine or merge any part of the Licensed Materials with or into any other software, content, or documentation except as expressly authorized by this Agreement; (vi) refer to or otherwise use any part of the Licensed Materials in any effort to develop a program having any functional attributes, visual expressions, or other features similar to those of the Licensed Materials in competition with PHY.net; (vii) sell, market, license, sublicense, distribute, rent, loan, operate for, or otherwise provide to any third party any right to access, possess, or utilize any portion of the Licensed Materials except as expressly authorized by this Agreement; (viii) use the Licensed Materials to gain or attempt to gain access to any applications, data, or services of PHY.net for which Customer has not been granted a license by PHY.net or to any software, computer systems, or data belonging to any third party that has access to the Services; (ix) “frame” or “mirror” any portion of the Services; (x) use any robot, spider, other automatic device, or manual process, to “screen scrape,” monitor, “mine,” or copy any portion of the Services; (xi) use any device, software, methodology, or routine to interfere with the proper working of the Services, servers or networks connected to the Services, or the PHY.net web site; (xii) harvest or collect information about other Services users; (xiii) restrict or inhibit any other person from using the Services or PHY.net web site, including without limitation by means of “hacking” or defacing any portion thereof; or (xiv) attempt to do or assist any party in attempting to do any of the foregoing.
7. Charges; Payments; Taxes.
(a) Fees and Expenses. Customer shall pay all fees, expenses, and other charges set forth in this Agreement to be paid by Customer, including without limitation the subscription fees and such other amounts, if any, as are described or referred to in the Account Registration and the Additional Terms.
(b) Invoices; Payments. Amounts due hereunder shall be paid in the manner established during Account Registration or as subsequently established by access to Customer’s Account Registration through Authorized User login to the Service. If applicable, Customer authorizes PHY.net to charge or debit automatically, using Customer’s selected payment method, all such amounts, including amounts due upon renewal of this Agreement. Customer is responsible for providing complete and accurate billing and contact information to PHY.net. If any amounts due from Customer are invoiced by PHY.net, payment on each such invoice shall be due within 30 days from the date thereof. All payments shall be made in U.S. Dollars. Payments not received within 30 days after the due date shall accrue interest from such due date at the rate of 1.5% per month or, if less, at the highest rate permitted by applicable law.
(c) Taxes. Customer shall pay when due (and PHY.net at its discretion may collect and pay on Customer’s behalf) all taxes or other charges imposed by a governmental authority based on or in any way measured by this Agreement, the services provided hereunder, or Customer’s use of the Licensed Materials or any portion thereof, excluding taxes based on PHY.net’s net income, but including without limitation sales and use taxes, personal property taxes, customs duties, tariffs, and value added taxes, if any.
(a) Security of Confidential Information. Each party possessing Confidential Information of the other party will maintain all such Confidential Information under secure conditions, using reasonable security measures and in any event not less than the same security procedures used by such party for the protection of its own Confidential Information of a similar kind.
(b) Non-Disclosure Obligation. Except as otherwise may be permitted by this Agreement, neither party shall disclose any Confidential Information of the other party to any third party without the express prior written consent of the other party; provided, however, that either party may disclose appropriate portions of Confidential Information of the other party to those of its employees, contractors, agents, and professional advisors having a substantial need to know the specific information in question in connection with such party’s exercise of rights or performance of obligations under this Agreement provided that all such persons (i) have been instructed that such Confidential Information is subject to the obligation of confidence set forth by this Agreement and (ii) are bound either by contract, employment policies, or fiduciary or professional ethical obligation to maintain such information in confidence.
(c) Compelled Disclosure. If either party is ordered by a court, administrative agency, or other governmental body of competent jurisdiction to disclose Confidential Information, or if it is served with or otherwise becomes aware of a motion or similar request that such an order be issued, then such party will not be liable to the other party for disclosure of Confidential Information required by such order if such party complies with the following requirements: (i) if an already-issued order calls for immediate disclosure, then such party immediately shall move for or otherwise request a stay of such order to permit the other party to respond as set forth in this paragraph; (ii) such party immediately shall notify the other party of the motion or order by the most expeditious possible means; and (iii) such party shall not oppose a motion or similar request by the other party for an order protecting the confidentiality of the Confidential Information, including not opposing a motion for leave to intervene by the other party; and (iv) such party shall exercise reasonable efforts to obtain appropriate assurance that confidential treatment will be accorded the Confidential Information so disclosed.
(d) Non-Use Obligation. Except as expressly authorized in this Agreement, during the term of this Agreement and forever thereafter (or for such shorter period as may be imposed by applicable law), neither party shall use any Confidential Information of the other party, except at the request of and for the benefit of such other party, without the express prior written consent of the other party.
(e) Copying of Confidential Information. Except as otherwise may be permitted by this Agreement, neither party shall copy or otherwise reproduce any part of any Confidential Information of the other party, nor attempt to do so, without the prior written consent of the other party. Any embodiments of Confidential Information of a party that may be generated by the other party, either pursuant to or in violation of this Agreement, will be deemed to be the sole property of the first party and fully subject to the obligations of confidence set forth herein.
(f) Proprietary Legends. Without the other party’s prior written consent, neither party shall remove, obscure, or deface on or from any embodiment of any Confidential Information any proprietary legend relating to the other party’s rights.
(a) Licensed Materials; Usage Data. Customer acknowledges and agrees that, as between PHY.net and Customer, PHY.net has and retains exclusive and valid ownership of the Licensed Materials and Usage Data, the names and marks thereof, and all intellectual property and proprietary rights therein, and Customer acknowledges that the foregoing constitute valuable assets and may constitute trade secrets of PHY.net.
(b) Customer Content; Customer Branding Materials; Customer Data. PHY.net acknowledges and agrees that, as between PHY.net and Customer, Customer has and retains exclusive ownership of all Customer Content, Customer Branding Materials, and Customer Data and all intellectual property and proprietary rights therein, subject to the licenses granted to PHY.net in this Agreement. PHY.net hereby assigns to Customer, as-is and without any warranties whatsoever, any and all right, title, and interest of PHY.net in and to any Customer Content provided by PHY.net personnel at the request or instruction of Customer. Customer grants to PHY.net a non‑exclusive, royalty‑free license during the Subscription Term to use, copy, disclose, distribute, display, perform, and transmit Customer Content, Customer Branding Materials, and Customer Data as necessary to perform its obligations under this Agreement. Customer represents and warrants that (i) it owns or has the legal right and authority, and during the Subscription Term will continue to own or have the legal right and authority, to grant to PHY.net the rights and licenses set forth herein and (ii) PHY.net’s use of Customer Content and Customer Branding Materials as provided herein will not infringe any copyright, patent, trademark, or other proprietary right, misappropriate any trade secret, violate any right of privacy or other right of a third party, or violate or contradict any law or any order of a court or administrative tribunal. Customer shall indemnify, defend, and hold harmless PHY.net, its affiliates, and their respective directors, officers, and employees from and against any Losses arising from or related to a breach of the foregoing representations and warranties of Customer.
(c) Suggestions and Joint Efforts. Customer may suggest, and the parties may discover or create jointly, findings, inventions, improvements, discoveries, or ideas that PHY.net, at its sole option, may incorporate in the Licensed Materials or in other products or services that may or may not be made available to Customer. Any such finding, invention, improvement, discovery, or idea, whether or not patentable, that is conceived or reduced to practice during the term of this Agreement, whether by a party alone or by the parties jointly, arising from or related to this Agreement or the Licensed Materials shall be and remain solely the property of PHY.net and may be used and sold, licensed, or otherwise provided by PHY.net to third parties, or published or otherwise publicly disclosed, in PHY.net’s sole discretion without notice, attribution, payment of royalties, or liability to Customer. Customer hereby assigns to PHY.net any and all right, title, and interest, including without limitation copyright and patent rights, in and to any such findings, inventions, improvements, discoveries, and ideas. Unless otherwise expressly agreed in writing, Customer shall not obtain any right, title, or interest in or to anything created or developed by PHY.net in connection with or incident to this Agreement other than the licenses expressly set forth in this Agreement.
(a) NO WARRANTY. THE LICENSED MATERIALS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED AS-IS, WITH ALL FAULTS, AND PHY.NET DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT PHY.NET KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR OTHERWISE IS IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE.
(b) Other Disclaimers. As between the parties, Customer will be exclusively responsible for, and PHY.net makes no warranty or representation with respect to, determining whether the Licensed Materials and services provided hereunder will achieve the results desired by Customer and selecting, procuring, installing, operating, and maintaining the technical infrastructure for Customer’s access to and use of the Licensed Materials and services provided hereunder. PHY.net shall not be liable for, and shall have no obligations with respect to, any aspect of the Licensed Materials modified by any person other than PHY.net or its contractors, use of the Licensed Materials and services provided hereunder other than in accordance with the most current instructions provided by PHY.net, malfunctions or failures caused by defects, problems, or failures of hardware or software not provided by PHY.net, or malfunctions or failures caused by acts or omissions of Customer or any third party. Customer acknowledges that the operation of the Licensed Materials will not be error free in all circumstances, that all defects therein may not be corrected, and that the operation thereof may be interrupted for periods of time by reason of defect therein or by reason of fault on the part of PHY.net. Customer acknowledges that PHY.net does not guarantee or warrant that any information or data obtained from the Services will be free of viruses, malware, or other destructive or malicious code, and Customer is responsible for implementing sufficient procedures and checkpoints to satisfy its particular requirements for protection and accuracy of data input and output with regard thereto and, if applicable, for maintaining a means external to the Services for reconstruction of any lost data. Due to the continual development of new techniques for intruding upon and attacking networks, PHY.net does not warrant that the Services or any equipment, system, or network on which they are used or accessed, or any information stored or processed by or through the Services, will be free of vulnerability to intrusion, attack, or unauthorized use or disclosure.
11. Risk Allocation.
(a) EXCLUSION OF INDIRECT DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY’S RIGHTS) FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF OR DAMAGE TO DATA, LOSS OF BUSINESS, OR OTHER ECONOMIC DAMAGE), WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, SHOULD HAVE ANTICIPATED, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE. THE PROVISIONS OF THIS PARAGRAPH ARE INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.
(b) MAXIMUM AGGREGATE LIABILITY. OTHER THAN FOR CUSTOMER’S USE OR DISCLOSURE OF THE LICENSED MATERIALS BEYOND THE SCOPE OF THE LICENSE GRANTED HEREIN, IN NO EVENT SHALL A PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY (INCLUDING LIABILITY TO ANY PERSON OR PERSONS WHOSE CLAIM OR CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY OR THROUGH SUCH PARTY), WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE FEES PAID HEREUNDER DURING THE ONE‑YEAR PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISE TO CLAIM. THE PROVISIONS OF THIS PARAGRAPH ARE INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.
(c) Intentional Risk Allocation. Each party acknowledges that the provisions of this Agreement reflect an informed, voluntary allocation between them of all risks (both known and unknown) associated with the transactions involved with this Agreement. The warranty disclaimers and limitations in this Agreement are intended, and have as their essential purpose, to limit the circumstances of liability. The remedy limitations and the limitations of liability are separately intended, and have as their essential purpose, to limit the forms of relief available to the parties.
(a) Notice of Breach; Cure Period. In the event of a breach of provision of this Agreement, the notice and cure procedures set forth in this paragraph shall apply. The non-breaching party shall give the breaching party notice describing the breach and stating the time, as provided herein, within which the breach must be cured. If a provision of this Agreement sets forth a cure period for the breach in question, then that provision shall take precedence over any cure period set forth in this paragraph. No cure period shall be required, except as may be provided otherwise in this Agreement, if this Agreement sets forth specific deadline dates for the obligation allegedly breached. If the breach is (i) of an obligation to pay money or (ii) a non-willful breach of an obligation of a party relating to the other party’s Confidential Information, then the breaching party shall have five business days to cure the breach after written notice thereof by the non-breaching party. If the breach is a willful breach of an obligation of a party relating to the other party’s Confidential Information, then the non‑breaching party, in its sole discretion, may specify in the notice of breach that no cure period will be permitted. If the breach is other than a breach of the kind described above in this paragraph, then the cure period will be 30 days after the notice of the breach by the non-breaching party.
(b) Termination for Breach. If a breach of any provision of this Agreement has not been cured at the end of the applicable cure period, if any (or upon such breach if no cure period is permitted), then the non-breaching party thereupon may terminate this Agreement by notice to the other party. This Agreement shall terminate automatically, to the extent permitted by applicable law in the jurisdiction or jurisdictions in question, if Customer makes an assignment for the benefit of its creditors, files a petition in bankruptcy, receivership, reorganization, or other like proceeding under any present or future debtor relief law (or is the subject of an involuntary such petition or filing that is not dismissed within 60 days after the effective filing date thereof), or admits of a general inability to pay its debts as they become due. Any termination of this Agreement shall be in addition to, and not in lieu of, any other rights or remedies available at law or in equity.
13. Nature of Relationship. PHY.net shall perform all services hereunder as an independent contractor to Customer, and nothing contained herein shall be deemed to create any agency or other relationship between the parties or any of their affiliates. Neither party shall have the right, power, or authority under this Agreement to create any duty or obligation on behalf of the other party.
14. U.S. Government End-Users. Each of the components that constitutes the Licensed Materials is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and/or “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Licensed Materials are licensed to U.S. Government end users as a commercial item, with only those rights set forth herein. Unpublished-rights reserved under the copyright laws of the United States.
15. Special Provisions Regarding BKON Configuration App.
(a) Users of the Apple App Store. If Customer downloads and uses the iOS version of the BKON Configuration App from the Apple App Store, Customer agrees to the provisions in this paragraph. Customer acknowledges that this Agreement is entered into by and between PHY.net and Customer, not with Apple, Inc. The foregoing notwithstanding, Customer acknowledges that Apple, Inc., and its subsidiaries are third-party beneficiaries of this Agreement and that Apple, Inc., has the right (and is deemed to have accepted the right) to enforce this Agreement. Customer acknowledges that Apple, Inc., has no obligation whatsoever to furnish any maintenance and support services with respect to the BKON Configuration App. Customer acknowledges that Customer has reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). This Agreement incorporates by reference the Licensed Application End User License Agreement (the “Apple Agreement”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of this Agreement, the BKON Configuration App is considered the “Licensed Application” as defined in the Apple Agreement and PHY.net is considered the “Application Provider” as defined in the Apple Agreement. If any terms of this Agreement conflict with the terms of the Apple Agreement, the terms of this Agreement shall control unless otherwise required by the Apple Agreement. Customer further acknowledges and agrees that in no event will Apple, Inc., be responsible for any claims relating to the BKON Configuration App (including without limitation a third-party claim that the BKON Configuration App infringes that third party’s intellectual property rights) or Customer’s use or possession of the BKON Configuration App, including without limitation (i) product liability claims, (ii) any claim that the BKON Configuration App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
(b) Users of the Google Play Store. If Customer downloads and uses the Android version of the BKON Configuration App from the Google Play Store, Customer agrees to the provisions in this paragraph. Customer acknowledges that this Agreement is entered into by and between PHY.net and Customer, not with Google, Inc. This Agreement incorporates by reference the Google Play Developer Distribution Agreement (the “Google Agreement”) published by Google, Inc. (located online at https://play.google.com/about/developer-distribution-agreement.html). If any terms of this Agreement conflict with the terms of the Google Agreement, the terms of this Agreement shall control unless otherwise required by the Google Agreement.
16. Other Provisions.
(a) Notices to PHY.net. Except as otherwise expressly provided herein, notices to PHY.net shall be given under this Agreement in writing, in the English language, by certified or registered U.S. mail, postage pre-paid, from within the United States (in which case such notices shall be deemed delivered on the third business day after deposit) or by a recognized overnight courier, pre-paid, with next-business-day delivery instruction (in which case such notices shall be deemed delivered on the next business day after deposit), sent to PHY.net at Attn: CEO, PHY.net, 41 Peabody Street, Nashville, Tennessee 37210, USA, with copy to Steve F. Wood, Esq., Baker Donelson, 211 Commerce Street, Nashville, Tennessee 37201, USA. PHY.net may change its address for purposes of notice by notice thereof to Customer.
(b) Notices to Customer. Except as otherwise expressly provided herein, notices shall be given to Customer under this Agreement in writing, in the English language, (i) by any of the methods set forth above for notices to PHY.net, (ii) by display of a notification upon login to Customer’s PHY.net account (in which case such notice shall be deemed delivered upon such display), or (iii) by e-mail (in which case such notice shall be deemed delivered upon transmission unless PHY.net receives a non-delivery email message within a reasonable time thereafter). Notices shall be sent to Customer at the address or email address provided in the Account Registration or as provided in clause (ii) of this paragraph. Customer may change its address for purposes of notice by access to Customer’s Account Registration or by written notice to PHY.net.
(c) Survival. The covenants herein concerning Confidential Information, indemnification, post-termination procedures, and any other provision that, by its nature, is intended to survive this Agreement shall survive any termination or expiration of this Agreement.
(d) Force Majeure. Except with respect to any payment obligations, neither party shall be liable for any failure to perform its obligations under this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control of such party, including without limitation acts of God, acts of terrorists or criminals, acts of domestic or foreign governments, change in any law or regulation, fires, floods, explosions, epidemics, disruptions in communications, power, or other utilities, strikes or other labor problems, riots, or unavailability of supplies.
(e) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Tennessee, USA (other than its conflicts of law provisions), and venue shall be exclusive in the federal or state courts sitting in Davidson County, Tennessee, USA.
(f) Assignment. Customer may transfer or assign some or all of its rights and/or delegate some or all of its obligations under this Agreement only with the express prior written consent of PHY.net, which may be granted or withheld in PHY.net’s sole discretion; provided, however, that if Customer is not a natural person, Customer may assign all of its rights hereunder indivisibly to an entity that controls, is controlled by, or is under common control with Customer (“control” meaning possession, directly or indirectly, of a majority of an entity’s voting interests) or to a purchaser of substantially all of Customer’s assets so long as such assignee promptly notifies PHY.net in writing of such assignment and agrees in writing to PHY.net to comply with Customer’s obligations under, and to be bound by, this Agreement. Any purported transfer or assignment by Customer of any right under this Agreement otherwise than in accordance with the provisions of this paragraph shall be null and void and a breach of this Agreement. This Agreement shall be assignable by PHY.net upon notice to Customer.
(g) Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns permitted by this Agreement.
(h) No Third Party Beneficiaries. Except with respect to indemnitees described herein, nothing in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and their respective successors or assigns any rights or remedies whatsoever.
(i) Entire Agreement. Except as otherwise expressly provided herein, this Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the parties with reference thereto will be of any force or effect. Each party represents and warrants that, in entering into and performing its obligations under this Agreement, it does not and will not rely on any promise, inducement, or representation allegedly made by or on behalf of the other party with respect to the subject matter hereof, nor on any course of dealing or custom and usage in the trade, except as such promise, inducement, or representation may be expressly set forth herein.
(j) Amendment. Except as otherwise provided herein, no modification or amendment to this Agreement will be valid or binding unless in writing and duly executed or acknowledged by the party or parties to be bound thereby (which may be accomplished in electronic form or by electronic means); provided, however, that PHY.net may amend or replace this Agreement upon not less than 45 days’ notice to Customer, such amendment or replacement to become effective upon the date specified in such notice unless Customer terminates this Agreement as provided in Section 2.
(k) Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect the right of such party to require performance of that provision. Any waiver by either party of any breach of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself or a waiver of any right under this Agreement.
(l) Severability. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction, then (i) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable will be unaffected; (ii) the effect of the ruling will be limited to the jurisdiction of the court or other government body making the ruling; (iii) the provision(s) held wholly or partly invalid or unenforceable would be deemed amended, and the court or other government body is authorized to reform the provision(s), to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein; and (iv) if the ruling, and/or the controlling principle of law or equity leading to the ruling, subsequently is overruled, modified, or amended by legislative, judicial or administrative action, then the provision(s) in question as originally set forth in this Agreement will be deemed valid and enforceable to the maximum extent permitted by the new controlling principle of law or equity.
(m) Attorney Fees. If litigation or other action is commenced between the parties concerning any dispute arising out of or relating to this Agreement, the prevailing party will be entitled, in addition to any other award that may be made, to recover all court costs and other official costs and all reasonable expenses associated with the litigation or other action, including without limitation reasonable fees and expenses of attorneys.
(n) Injunctive Relief. Recognizing the unusual nature of computer software and trade secrets, Customer acknowledges that any violation by Customer of its covenants in this Agreement relating to PHY.net’s Confidential Information, including without limitation the Licensed Materials, would result in damage to PHY.net that is largely intangible but nonetheless real and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give PHY.net the right to a court-ordered injunction or other appropriate order to enforce specifically those covenants. Customer agrees to pay PHY.net any reasonable expenses, including without limitation attorney fees and expenses, incurred in obtaining such specific enforcement (in addition to any other relief to which PHY.net may be entitled).
(o) Headings. The headings of the sections used in this Agreement are included for convenience only and are not to be used in construing or interpreting this Agreement.
1. Certain Definitions.Capitalized terms not otherwise defined in this Addendum shall have the meanings ascribed in the Agreement.
“End User Application” means a software application that incorporates, uses, or is based upon the PHY.net SDK.
“Licensed Materials” has the meaning ascribed in the Agreement but includes without limitation the PHY.net SDK.
“PHY.net SDK” means PHY.net’s software development kit, programming library, and other files, data, software, and other materials and information supplied or made available to Customer by PHY.net intended for use in developing End User Applications, including without limitation any and all revisions, modifications, and updates thereof as may be supplied or made available by PHY.net to Customer during the term of this Agreement and all copies thereof made by or on behalf of Customer.Without otherwise limiting the definition of “Services,” “Services” shall not include the PHY.net SDK.
2. License to PHY.net SDK.
(a) Grant of License. Subject to terms and conditions of this Addendum and the Agreement, PHY.net grants to Customer a perpetual, non‑exclusive, non‑transferable (except as otherwise provided herein) license use the PHY.net SDK and relevant Documentation in accordance with the terms of this Addendum and the Agreement solely to develop and operate End User Applications and to distribute End User Applications in accordance with the terms of this Addendum.
(b) Distribution of End User Applications (Sublicensing). The license granted in this Addendum permits Customer to publish and distribute End User Applications provided that Customer does not purport to grant to an end user thereof any rights that would contravene the terms and conditions of this Addendum or the Agreement and provided that Customer enters into a written sublicense agreement (which may be in the form of a click-through agreement) with each end user of an End User Application containing, at a minimum, substantially the following provisions (replacing “[End User Application]” with the name of the End User Application and replacing “[Customer]” with Customer’s name):
You acknowledge that portions of the [End User Application] (the “PHY.net Components”) are provided by [Customer] pursuant to a license from PHY.net, a Delaware corporation (“PHY.net”). You acknowledge that, as between PHY.net and you, PHY.net has and retains exclusive, valid, and non-contestable ownership of the PHY.net Components and that the PHY.net Components constitute valuable assets and trade secrets of PHY.net. You agree not to do or authorize any person do any of the following: (i) use the PHY.net Components for any purpose or in any manner not specifically authorized by this agreement; (ii) create or recreate the source code for any or all of the PHY.net Components or re-engineer, reverse engineer, decompile, disassemble, modify, or alter any or all of PHY.net Components; (iii) sell, market, license, sublicense, distribute, rent, loan, operate for, or otherwise provide to any third party any right to access, possess, or utilize any portion of the PHY.net Components; or (iv) attempt to do or assist any party in attempting to do any of the foregoing. You acknowledge and agree that (A) PHY.net is not responsible for the [End User Application], (B) PHY.net makes no warranties to you and disclaims all implied warranties (if any) to you, and (C) PHY.net disclaims all liability arising from or related to the [End User Application] or the PHY.net Components or use thereof. You and [Customer] agree that PHY.net and its subsidiaries are intended to be, and shall be, third party beneficiaries of this agreement with the right to enforce the agreement against you.
3. Backup Copies. Customer may make copies of the PHY.net SDK for routine backup purposes provided that no more than a reasonable and necessary number of such copies may be in existence at any one time. Customer shall preserve on and/or in all such backup copies all of PHY.net’s copyright and other restrictive and proprietary notices in the form and content as they appear on and/or in the PHY.net SDK. Customer acknowledges and agrees that all such backup copies are and shall remain Licensed Materials.