PHYSMODO TERMS OF USE

Last modified: May 25, 2018

This Physmodo Terms of Use Agreement (this “Agreement”) is between Physmodo, Inc. (“Physmodo”) and you (hereinafter referred to as “User”, “You”, or “you”), each a “Party” and together the “Parties,” and governs your use of the software services provided by Physmodo (collectively, the “Service”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SERVICE. This Agreement governs your use of the Service and affects your legal rights and obligations. By clicking the “I Agree” button and accepting this Agreement, you agree to and are bound by the terms, conditions, policies and notices contained in this Agreement, including without limitation conducting this transaction electronically, disclaimers of warranties, damage and remedy exclusions and limitations, and a choice of Texas law. If you do not agree to be bound by all of the terms contained in this Agreement, do not click on the “I Agree button and do not access or use the Service. By clicking the “I Agree” button and accepting this Agreement, you agree that use of any third-party features, services, or content either in or accessible in connection with the Service shall be subject to any applicable third party terms and conditions, disclaimers and disclosures.

PHYSMODO MAY REVISE AND UPDATE THIS AGREEMENT AT ANY TIME. PLEASE PERIODICALLY REVIEW THIS AGREEMENT POSTED ON THE SERVICE BECAUSE YOUR CONTINUED USE OF THE SERVICE WILL MEAN THAT YOU ACCEPT THOSE CHANGES. TO THE EXTENT ANY MODIFICATION TO THIS AGREEMENT MATERIALLY AFFECTS YOUR RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT, THE UPDATED AGREEMENT WILL BE PRESENTED TO YOU UPON YOUR NEXT LOG-IN TO THE SERVICE AND YOU WILL BE REQUIRED TO ACCEPT THE UPDATED AGREEMENT BEFORE PROCEEDING TO THE SERVICE.

1. Use of the Service.

1.1          Physmodo hereby grants User a limited, revocable, personal, non-exclusive, non-transferable, non-assignable, non-sublicenseable right to access and use the Service during the term of this Agreement solely for User’s purposes.

1.2          This Agreement only gives User the right to access and use the Service. Physmodo reserves all other rights. User may use the Service only as expressly permitted in this Agreement. In doing so, User must comply with any technical limitations in the Service that only allow User to use it in certain ways and User agrees to comply with all laws, rules and regulations applicable to User’s use of the Service.

1.3          In order to use the Service, you are required to register and set up an account to access the Service. By setting up an account, you agree to (i) provide Physmodo with accurate and complete information, and (ii) promptly update your account information with any new information that may affect the operation of your account. You may not use false identities or impersonate any other person or use a username or password that you are not authorized to use. You agree to notify Physmodo as soon as possible at notices@physmodo.com, of any known or suspected unauthorized use(s) of your account, or any known or suspected breach of security, including but not limited to loss, theft or unauthorized disclosure of your password. You are responsible for all usage or activity on your Service account. Any fraudulent, abusive or otherwise illegal activity, or any violation of this Agreement, may be grounds for termination of your account in Physmodo’s sole discretion.

1.4          To the extent that User provides any information, including but not limited to Personal Data (as defined in Physmodo’s Privacy Policy), to Physmodo or its Representatives (as defined in Section 2 below), User warrants that User is providing or obtaining only User’s own information or the information of others which User is authorized to provide to third parties and/or obtain from third parties on their behalf.           

2. Warranty Disclaimer. User understands that the Service may contain, errors, “bugs” and other problems, which may result in system failure or failure in the use of the Service or loss of data or access to information provided to Physmodo or obtained by User or on User’s behalf through use of the Service. The Service is provided to User “AS IS”, “WITH ALL FAULTS”, and Physmodo disclaims any warranty or liability obligations to User of any kind. User understands and agrees that Physmodo AND ALL THIRD PARTY SERVICE AND DATA PROVIDERS, LICENSORS AND DISTRIBUTORS (“REPRESENTATIVES”) DO NOT MAKE ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTY OR CONDITION OF ANY KIND WITH RESPECT TO THE SERVICE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION WITH REGARD TO THE SERVICE’S PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, DATA SECURITY OR RESULTS THAT MAY BE OBTAINED FROM OR THROUGH THE SERVICE.

IN NO EVENT WILL Physmodo OR ANY OF ITS REPRESENTATIVES BE LIABLE TO USER OR ANY OTHER PARTY FOR (i) PUNITIVE, EXEMPLARY, INCREASED OR AGGRAVATED DAMAGES, OR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING ANY LOSS OF PROFITS OR INVESTMENT, LOSS OF BUSINESS, LOSS OF SAVINGS, CORRUPTION, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, OTHER ECONOMIC OR COMMERCIAL LOSS OR ANY OTHER INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES of any kind EVEN IF Physmodo OR ANY OF ITS REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF ANY EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS agreement IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND PHYSMODO BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT COULD OTHERWISE BE LIMITED, PHYSMODO’S TOTAL AGGREGATE LIABILITY, OR THAT OF ANY OF ITS THIRD-PARTY LICENSORS AND/OR SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND WHETHER INCURRED WITH RESPECT TO ONE CLAIM, OR CUMULATIVELY INCURRED FROM MULTIPLE RELATED OR UNRELATED CLAIMS ARISING UNDER THIS AGREEMENT, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 USD).

3. Feedback; Idea Submission; Data.

3.1 User acknowledges and agrees that User may be providing certain feedback, statements, suggestions and ideas (“Ideas”) to Physmodo, directly or through a third party, in connection with User’s use of the Service, which Physmodo may use, without limitation, in future modifications to the Service, multimedia works and/or advertising and promotional materials relating thereto. User hereby assigns to Physmodo any and all rights and interest in any Ideas and data (“Data”), including but not limited to any copyright, patent right, moral right, and all other intellectual property rights.           

3.2 The Parties agree that all proprietary information and Data of User provided to or accessed by Physmodo under this Agreement is and shall remain proprietary to and owned by User. The parties acknowledge and agree that Physmodo shall have the right to use, compile, extract, combine, modify, and aggregate any such Data in order to create de-identified data (“Aggregate Data”), which Physmodo may use for its business purposes. Physmodo shall own all right, title, and interest in and to such Aggregate Data. SHALL USER DESIRE THAT PHYSMODO REMOVE ALL PERSONAL INFORMATION AND DATA OF USER, USER SHALL CONTACT PHYSMODO AT PRIVACY@PHYSMODO.COM TO MAKE SUCH REQUEST.

4. Third Party Services. The Services may permit you to link to other websites, services, or resources on the Internet, and other websites, services, or resources may contain links to the Services. For more information about third-party advertising, cookies, and opt-outs, please visit Physmodo’s Privacy Policy at https://www.physmodo.com/privacy. When you access third-party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource. Physmodo will also not be responsible or liable for any failure in the Services attributable to your or any third party’s products, services, negligence, willful misconduct, breach of these Terms of Use, or other unauthorized access or use.

5. Term and Termination.

5.1 User may terminate this Agreement at any time by giving Physmodo written notice, ceasing all use of the Service, and returning or destroying all information and data of Physmodo.

5.2 Upon receipt of User’s written notice of termination, Physmodo will remove all Personal Data associated with the User from all Physmodo systems and all Physmodo data storage media with a confirmation written notice or an explanation why the request could not be fulfilled returned back to the User by means of the method used in the request.

5.3 Physmodo may terminate this Agreement immediately if User fails to comply with any term or condition of this Agreement.

5.4 Physmodo further reserves the right to terminate this Agreement at any time on fifteen (15) days’ prior notice to User.

5.5 The provisions of Section 2, this Section 5, and Sections 6, 7 and 8 shall survive any termination of this Agreement.

6. Proprietary Rights. The Service and any materials furnished or provided to User by Physmodo in connection with this Agreement and any information and materials which are designated as the property of Physmodo shall remain the sole property of Physmodo, and are available to User solely for purposes of User’s use of and access to the Service in accordance with the terms of this Agreement. Except for the limited rights granted herein, nothing in this Agreement shall transfer to User any right, title, or interest in or to any information or materials owned by Physmodo, and User shall not use or disclose any information or materials of Physmodo except as expressly permitted in this Agreement. Without limiting the generality of the foregoing, User agrees that User shall not (i) modify, alter, adapt, translate, copy or create derivative works or any functionally similar service or software based on the Service, or attempt to merge the Service into any other program, software,  or application; (ii) reverse-engineer or otherwise attempt to obtain or perceive the source code of the Service (or any component thereof); (iii) build a publically available, competitive product service using all or any portion of any information or materials of Physmodo; (iv) copy any ideas, features, functions or graphics of the Service; or (v) remove, change or obscure any identification marks or notices of proprietary rights and restrictions on the Service or any elements of the Service.

7. Indemnification. User agrees to indemnify and hold Physmodo, its affiliates, Representatives, officers, employees and agents harmless from and against any and all claims, costs, demands, liabilities, suits, or actions (including all reasonable expenses and attorneys’ fees) for any loss, damage (including incidental, punitive, exemplary, consequential, and special), injury, or other casualty of any kind whatsoever, or by whomever caused, to the person or property of anyone arising out of or resulting from User’s use of or access to the Service or violation of any rights of another.

8. General Provisions.

8.1          This Agreement shall be governed in all respects by the laws of The United States and the State of Texas, excluding its conflicts or choice-of-law provisions, and each Party agrees that any action commenced in connection with any claim arising out of or related to this Agreement and/or the Services shall be brought solely in the state or federal courts in Dallas, Texas. This Agreement is in compliance with the General Data Protection Regulation (the “GDPR”).

8.2          Unless expressed otherwise, notices between the Parties shall be by personal delivery, facsimile transmission, or certified or registered mail, return receipt requested, and shall be deemed given upon receipt at the address of the recipient Party or ten (10) days after deposit in the mail. NOTICE FROM USER TO PHYSMODO IS ALSO ACCEPTABLE VIA EMAIL TO NOTICES@PHYSMODO.COM.

8.3          In the event of any invalidity of any provision of this Agreement, the Parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and effect of the invalid provision.

8.4          This Agreement and any addendum or amendment to either of the foregoing, constitute the entire understanding and agreement between the Parties with respect to the subject matter addressed herein and supersedes any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof, all of which are merged herein. User may not assign or transfer User’s rights and obligations under this Agreement without the prior written consent of an authorized representative of Physmodo.

8.5          The provisions of this Agreement are not intended to create any relationship between User and Physmodo other than that of independent entities contracting with each other solely for the purpose of effecting the provisions of this Agreement, and nothing contained herein shall be construed as creating any agency, employment, partnership, or joint-venture relationship between the Parties.

8.6          Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a Party in enforcing the provisions of this Agreement or its rights at any time will not be construed as, and will not be deemed to be, a waiver of such Party’s rights under this Agreement and will not in any way affect the validity of this Agreement in whole or in part or prejudice such Party’s right to take subsequent action. Except as expressly stated herein, no exercise or enforcement by either Party of any right or remedy under this Agreement will preclude the enforcement by such Party of any other right or remedy under this Agreement, or any other right or remedy to which such Party may be entitled at law or equity.