1. ACKNOWLEDGEMENT AND ACCEPTANCE OF TERMS OF SERVICE
The PHYTBACK.COM® Service (“Service”) is owned and operated by World Anthem, Inc. (“WAT”), and provided to you (“Customer”) under the terms and conditions of this PHYTBACK.COM® Terms of Service and any operating rules or policies, price schedules, and any other supplemental documents which are expressly incorporated herein by reference in this TOS and published from time to time (hereinafter collectively referred to as “TOS”). The TOS comprises the entire agreement between Customer and WAT and supercedes all prior agreements between the parties regarding the subject matter contained herein. BY SUBSCRIBING TO THE PHYTBACK.COM® ON THE WEBSITE, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE TOS.
2. DESCRIPTION OF SERVICES
WAT is providing Customer with the capability to store and retrieve certain personal information via the World Wide Web interacting with other subscribers, displaying this information to the public, and conducting personal business. These functions and features are described on the phytback.com website. WAT will charge Customer on a monthly basis for this Service, with the exception of any initial set up or customization charges. The Customer is responsible to: (1) provide all equipment, including computers and modems necessary to establish a connection to the World Wide Web; (2) provide for its own access to World Wide Web and pay for any telephone or network service fees or costs associated with such access.
In consideration for this Service, Customer agrees to: (1) provide certain current, complete and accurate information about Customer as prompted to do so by the Service and (2) maintain and update this information as required to keep it current, complete and accurate. All information requested through the original sign up process shall be referred to as registration data (“Registration Data”). WAT will take all reasonable measures not to divulge this information to any third party unless: (1) Customer expressly directs WAT to disclose such information; or (2) WAT is required to disclose such information by any applicable law or legal process served on WAT.
If any information provided by Customer is inaccurate, WAT retains the right to terminate Customer’s rights to use the Service.
3. MODIFICATIONS TO TERMS OF SERVICE
WAT may amend or modify the terms and conditions of the TOS at any time and from time to time. Upon any change in the terms and conditions of the TOS, WAT will notify the Customer by email to the Customer’s administrator’s email address. Also, the Customer is responsible to regularly review WAT’s website to obtain timely notice of any such amendments. Customer’s continued use of the Service constitutes an affirmative: (1) acknowledgement by Customer of the TOS and its modifications; and (2) agreement by Customer to abide and be bound by the TOS and its modifications.
4. MODIFICATIONS TO SERVICE
WAT reserves the right to modify or discontinue the Service with or without notice to Customer. WAT shall not be liable to Customer or any third party should WAT exercise its right to modify or discontinue the Service.
5. INITIAL SET-UP FEE AND PAYMENT TERMS
Prior to Customer commencing use of the Service, Customer may pay to WAT an initial, non-refundable set-up fee as set forth in the Pricing/Sign-Up webpage, incorporated herein by reference. Upon Customer’s commencing use of the Service, the payment required for use of the Service as also set forth in the Pricing/Sign-Up webpage, shall be due and payable in full in accordance with the payment terms thereunder. Interest will be charged on all delinquent accounts at a rate equal to the greater of: (i) one and one-half percent (1½) per month or (ii) the maximum allowable under law.
It is WAT’s policy to respect the privacy of its Customers. Therefore, in addition to the privacy of Registration Data as discussed in Section 2 above, WAT will not monitor, edit, or disclose the contents of a Customer’s private communications unless required to do so by law or in the good faith belief that such action is necessary to: (1) conform to the edicts of the law or comply with legal process served on WAT; (2) protect and defend the rights or property of WAT; or (3) act under exigent circumstances to protect the personal safety of its Customers or the public.
Customer acknowledges and agrees that WAT neither endorses the contents of any Customer communications nor assumes responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby.
Customer acknowledges and agrees that certain technical processing of data may be required to: (1) work with the Service; (2) conform to connecting networks’ technical requirements; (3) conform to the limitations of the Service; or (4) conform to other similar requirements.
7. ACCOUNT, PASSWORD, PRIVATE WEBSITE
When Customer signs up for the Service, Customer will choose a user id/nickname, and a password to access the Service. Customer will also provide a valid email address for initial communications. The Customer userid and password will be used by the Customer or the Customer’s designee to create access the Service website. Customer is solely responsible to maintain the confidentiality of the logon, password and account information. Furthermore, Customer is entirely responsible for any and all activities that occur at the Customer’s Service website. Customer agrees to immediately notify WAT of any unauthorized use of Customer’s account or any other breach of security known to Customer.
8. DISCLAIMER OF WARRANTIES
CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
WAT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WAT MAKES NO WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE; NOR DOES WAT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED.
CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
WAT MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. WAT ASSUMES NO RESPONSIBILITY FOR THE DELETION OR FAILURE TO STORE CUSTOMER’S DATA ON THE SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM WAT OR THROUGH THE SERVICE SHALL CREATE OR MAKE ANY MODIFICATION, EXTENSION OR ADDITION TO ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
9. LIMITATION OF LIABILITY
IN NO EVENT WHATSOEVER SHALL WAT BE LIABLE TO THE CUSTOMER OR TO THIRD PARTIES FOR ANY DAMAGES CAUSED, IN WHOLE OR IN PART, BY THE USE OF THE SERVICE, THE INABILITY TO USE THE SERVICE, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED, MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA, OR FOR ANY LOST REVENUES, LOST PROFITS, LOST SAVINGS OR OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES INCURRED BY CUSTOMER OR ANY THIRD PARTY, EVEN IF WAT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. WAT’S LIABILITY ARISING FROM OR RELATED TO THIS TOS SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED AN AMOUNT EQUAL TO THE MONTHLY FEE PAID BY CUSTOMER.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH CASE, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
10. NO RESALE OR COMMERCIAL USE OF THE SERVICE
Customer’s right to use the Service is personal to Customer. Customer may be an individual, a corporation or other business entity. Customer agrees not to resell or make any commercial use of the Service without the express written consent of WAT.
11. CUSTOMER CONDUCT
Customer is solely responsible for the contents of Customer’s data within the Service. Customer’s use of the Service is subject to all applicable U.S. local, state, and national laws and regulations.
Customer agrees: (1) to comply with United States of America (“U.S.”) law regarding the transmission of technical data exported from the U.S. through the Service; (2) not to use the Service for illegal purposes; (3) not to interfere or disrupt the service or networks connected to the Service; and (4) to comply with all regulations, policies and procedures of the Service and networks connected to the Service.
The Service makes use of the Internet to send and receive certain data; therefore, Customer’s conduct is subject to Internet regulations, policies and procedures. Customer will not use the Service for junk mail, spamming or any use of distribution lists to any person who has not given specific permission to be included in such a process.
Customer agrees not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Customer further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, or national law or regulation. Attempts to gain unauthorized access to other computer systems are prohibited.
Customer shall not interfere with another Customer’s use and enjoyment of the Service or another entity’s use and enjoyment of similar services.
WAT may, at its sole discretion, immediately terminate Service should Customer’s conduct fail to conform with the terms and conditions of this TOS. In the case of a termination, no refunds are given.
Customer agrees to indemnify, hold harmless and defend, at its own expense, WAT, its parents, subsidiaries, affiliates, shareholders, officers and employees, from and against any claims, demands, actions, proceedings, judgments, decrees, costs and expenses, including reasonable attorneys’ fees, arising from or out of Customer’s use of the Service, the violation of this TOS by Customer, or any person authorized to act on Customer’s behalf, or the infringement by Customer, or other user of the Service using Customer’s computer, of any intellectual property or other right of any person or entity.
Either Customer or WAT may terminate the Service with or without cause at any time and effective immediately. Termination shall be accompanied by a written or eMailed notice to the other party. WAT shall not be liable to Customer or any third party for any damages resulting from termination of the Service.
Should Customer object to any terms and conditions of the TOS or any subsequent amendments, modifications or changes thereto or become dissatisfied with the Service in any way, Customer’s only recourse is to immediately: (1) discontinue use of the Service; (2) terminate Service membership; and (3) notify WAT of such termination.
Upon termination of the Service, Customer’s right to use the Service immediately ceases. Thereafter, Customer shall have no right and WAT will have no obligation to any other party.
WAT reserves the right to refuse to set up a subsequent account for any Customer who has cancelled previous Service accounts.
All notices to a party shall be in writing and shall be made either via email or conventional mail. WAT may broadcast notices or messages through the Service to inform Customer of changes to the TOS, the Service, or other matters of importance; such broadcasts shall constitute notice to Customer.
15. PROPRIETARY RIGHTS TO CONTENT
Customer acknowledges that content of the Service, including but not limited to text, software, music, sound, photographs, video, graphics or other material contained in the Service or email-distributed, commercially produced information presented to Customer by the Service or by WAT, is the sole and exclusive property of WAT and is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws; therefore, Customer is only permitted to use this content as expressly authorized by the Service. Customer may not copy, reproduce, distribute, or create derivative works from this content without expressly being authorized to do so by WAT in writing.
16.1 This TOS embodies the entire understanding between the parties and there are not other agreements, representations, warranties or understandings, oral or written, between them with respect to the subject matter of this TOS. No alteration, modification or change of the TOS shall be valid and enforceable unless approved by WAT in writing.
16.2 Customer agrees to hold all parts of the Service (including the Terms of Service) in confidence for WAT. Customer, its shareholders, officers, directors, employees, agents and representatives or other designees shall not disclose or cause to be disclosed to any third party any part or all of the Service or the terms of this TOS. Customer may disclose the Service or the terms of the TOS to employees of Customer to whom such disclosure is necessary to utilize the Service in accordance with the terms hereunder. Customer shall appropriately notify all employees to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by them.
16.3 Any suit or action filed to enforce or contest any provision of this TOS, or the obligations imposed, shall be brought and prosecuted in a court of competent jurisdiction sitting in the Commonwealth of Pennsylvania, County of Bucks. Any suit, action, or proceeding concerning any disputes, controversies, or claims arising out of or relating to the Services or this TOS shall be instituted in any applicable court in Bucks County, Pennsylvania. Customer irrevocably consents and submits to the jurisdiction and venue of such court for such purposes. Provided, however, that WAT may elect to submit such matter to arbitration in Bucks County, Pennsylvania in accordance with the then current Commercial Arbitration rules of the American Arbitration Association under an accelerated format such that the case shall be heard within thirty (30) days of submission. WAT reserves its right to bring suit in any court elsewhere of competent jurisdiction and is not required to submit to arbitration.
16.4 If any of the provisions of the TOS are held by a court of competent jurisdiction to be illegal, invalid, or unenforceable under any applicable law, then such contravention or invalidity shall not invalidate the entire agreement. Such provisions shall be deemed modified to the extent necessary to render it legal, valid and enforceable, and if no such modification shall render it legal, valid and enforceable, then this TOS shall be construed as if not containing the provision held to be invalid and the rights and obligations of the parties shall be construed and enforced accordingly with the other provisions remaining in full force and effect. The provisions of Paragraphs 6, 8, 9, 10, 12, 15, 16.2, 16.3, 16.4, 16.5, 16.9 and 16.10 shall survive termination of the Service.
16.5 Customer acknowledges and agrees that WAT would be damaged irreparably in the event that any of the provisions of this TOS are not performed in accordance with their specific terms or are otherwise breached. Accordingly, Customer agrees that WAT shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this TOS and to specifically enforce this TOS and the terms and provisions hereof in any action instituted in any court of the U.S. or any state thereof having jurisdiction over the parties and the matter in addition to any other remedy to which it may be entitled hereunder, at law or in equity.
16.6 If at any time Customer or WAT retains one or more attorneys to enforce any covenant or provision of this TOS, or to defend itself against any claim by any other party hereto, whether or not suit is filed, the party who is wholly or partially successful shall be entitled to damages inclusive of the amount of such party’s reasonable attorneys’ fees, expenses and costs; this covenant shall survive the termination of the Service.
16.7 WAT’s failure to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision.
16.8 Customer and WAT agree that any cause of action arising out of or related to the Service must commence within one (1) year after the alleged cause of action arose; otherwise, such cause of action is permanently barred.
16.9 This Agreement shall not confer any rights or remedies upon any individual, partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, unincorporated organization, governmental entity (or any department, agency or political subdivision thereof) or any other or similar type of entity other than the parties hereto and their respective successors and permitted assignees.
16.10 Customer shall not assign any of its rights, duties or obligations nor delegate any of its obligations hereunder without the prior written consent of WAT, which consent may be arbitrarily withheld. To the extent assignable, this ToS shall be binding upon and inure to the benefit of the parties hereto and their respective successors (including, specifically, any person or entity acquiring or otherwise succeeding to ownership of all or substantially all of the assets of any party hereto) and permitted assigns.
16.11 The paragraph titles and headings in this TOS are included for convenience of reference only and in no way modify or restrict any of the terms or provisions hereof, nor shall they be considered in the interpretation or construction of any provision in this TOS.
IN WITNESS WHEREOF, intending to be legally bound hereby, by checking the box labeled “I have read and agree to the Terms Of Service” on the PHYTBACK.COM® service sign up form and completing the signup process, the Customer has caused this TOS to be executed.