Phaser Terms of Use

Last Updated: 2024-08-20

 

Please read this Terms of Use agreement (the “Terms of Use”) carefully. This website and its subdomains (collectively, the “Website”), the information on the Website, the Phaser Editor application (“Phaser Editor”), the Phaser Compressor tool (“Phaser Compressor”), the Phaser Explorer example code and documentation library (the “Phaser Explorer”), the Phaser community forum (the “Forum”) and the other services and resources available or enabled via the Website (each a “Service” and collectively, the “Services”), are controlled by Phaser Studio Inc. (“Phaser”). These Terms of Use, along with all supplemental terms that may be presented to you for your review and acceptance (collectively, the “Agreement”), govern your access to and use of the Services. Please note that your access to and use of the Phaser JavaScript library (“Phaser Framework”) is not subject to the Agreement; instead, the Phaser Framework is made available subject to the open source MIT License, which is available for review here.

By clicking on the “I Accept” button, completing the account registration process, browsing the Website, downloading or using the resources available on the Website, or otherwise accessing or using any of the Services, you represent that (1) you have read, understand, and agree to be bound by the Agreement, (2) you are of legal age to form a binding contract with Phaser, and (3) you have the authority to enter into the Agreement personally or on behalf of the legal entity identified during the account registration process, and to bind that legal entity to the Agreement. The term “you” refers to the individual or such legal entity, as applicable. If you, or if applicable, such legal entity, do not agree to be bound by the Agreement, you, and if applicable, such legal entity, may not access or use any of the Services.

IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THE AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT PHASER’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU CANCEL OR DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 6.3 (AUTOMATIC RENEWAL) BELOW.

PLEASE BE AWARE THAT SECTION 12 (ARBITRATION AREEMENT) OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW ANY DISPUTES BETWEEN US WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (A) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (B) YOU ARE WAIVING YOUR RIGHT TO PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

Please note that the Agreement is subject to change by Phaser in its sole discretion at any time. When changes are made, Phaser will make a copy of the updated Agreement available at the Website and update the “Last Updated” date at the top of these Terms of Use. If we make any material changes to the Agreement, we will provide notice of such material changes on the Website and attempt to notify you by sending an email to the email address provided in your account registration, if any. Any changes to the Agreement will be effective immediately for new users of the Services and will be effective for existing Registered Users (defined below) upon the earlier of (i) thirty (30) days after the “Last Updated” date at the top of these Terms of Use, or (ii) your consent to and acceptance of the updated Agreement if Phaser provides a mechanism for your immediate acceptance in a specified manner (such as a click-through acceptance), which Phaser may require before further use of the Services is permitted. If you do not agree to the updated Agreement, you must stop using all Services upon the effective date of the updated Agreement. Otherwise, your continued use of any of the Services after the effective date of the updated Agreement constitutes your acceptance of the updated Agreement. Please regularly check the Website to view the then-current Agreement. You agree that Phaser’s continued provision of the Services is adequate consideration for the changes in the updated Agreement.

1.              THE SERVICES. The Phaser Framework is an open source HTML5 game framework designed specifically for web browsers. The Services are designed to assist, facilitate, and enhance use of the Phaser Framework for the purposes of designing and creating games. The Services, and the information and content available on them, are protected by applicable intellectual property laws. Unless subject to a separate license between you and Phaser, your right to use any and all Services is subject to the Agreement. Phaser, its suppliers and service providers reserve all rights not granted in the Agreement.

1.1           Phaser Software. Access to and use of any software and associated documentation that may be made available via the Services, including, but not limited to, the Phaser Editor, the Phaser Compressor, the Phaser Explorer, and related APIs (collectively, “Software”) is governed by the Agreement. Subject to your compliance with the Agreement (including payment of any applicable fees as described by Section 6 (Fees)), Phaser grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software for the sole purpose of enabling you to use the Services to create games for your personal and internal business purposes. Some portions or aspects of the Software may be offered under open source licenses that we will make available to you upon your request. There may be provisions in the open source licenses that expressly override some of these terms.

1.2           Updates. You understand that the Services are evolving. As a result, Phaser may require you to accept updates to the Software that you have installed on your computer. You acknowledge and agree that Phaser may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services. Any future release, update, or other addition to the Services shall be subject to the Agreement.

1.3           Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Phaser’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services.

1.4           Phaser Communications. By entering into the Agreement or using the Services, you agree to receive communications from us, including via email and Discord. Communications from us may include but are not limited to operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Phaser and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.

2.              REGISTRATION

2.1           Registering Your Account. In order to access certain features of the Services, you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account with Phaser through the Services (“Account”), has a valid account on a third-party service such as Google or GitHub (each, a “Third-Party Service”) through which the user has connected to the Services (each such account, a “Third-Party Service Account”).

2.2           Access Through a Third-Party Service. If you access the Services through a Third-Party Service as part of the functionality of the Services, you may link your Account with Third-Party Service Accounts by allowing Phaser to access your Third-Party Service Account, as is permitted under the applicable terms and conditions that govern your Third-Party Service Account. You represent that you are entitled to grant Phaser access to your Third-Party Service Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your Third-Party Service Account and without obligating Phaser to pay any fees or making Phaser subject to any usage limitations imposed by such Third-Party Service. Depending on the Third-Party Service Accounts you choose and subject to the privacy settings that you have set in such Third-Party Service Accounts, personally identifiable information that you post to your Third-Party Service Accounts may be available on and through your Account on the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND PHASER DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.

2.3           Registration Data. In registering an Account, you agree to (a) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence, or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to (y) notify Phaser immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Phaser has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current, or incomplete, Phaser has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Phaser reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Phaser, or if you have been previously banned from any of the Services.

2.4           Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Phaser.

2.5           Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a personal computer that is suitable to connect with and use the Services. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Services.

3.              RESPONSIBILITY FOR CONTENT

3.1           Types of Content. You acknowledge that all information, data, text, code, software, games, images, videos, graphics, messages, tags and other materials accessible through the Services (collectively, “Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Phaser, are entirely responsible for all Content that you design, develop, create, or otherwise make available using the Services, including but not limited to your games and any portion thereof (“Your Content”), and that you and other Registered Users of the Services, and not Phaser, are similarly responsible for all Content that you and they create or make available through the Services (“User Content”).

3.2           No Obligation to Pre-Screen Content. You acknowledge that Phaser has no obligation to pre-screen User Content, although Phaser reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. By entering into the Agreement, you hereby provide your irrevocable consent to Phaser’s monitoring of Your Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Phaser pre-screens, refuses or removes any of Your Content, you acknowledge that Phaser will do so for Phaser’s benefit, not yours. Without limiting the foregoing, Phaser shall have the right to remove any of Your Content that violates the Agreement or is otherwise objectionable.

3.3           User Conduct. As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) make available any Content on or through the Services that: (i) infringes, misappropriates or otherwise violates any intellectual property right, right of publicity, right of privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk email; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Phaser’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Phaser; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.

3.4           Interactions with Other Users. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact, including through the Forum; provided, however, that Phaser reserves the right, but has no obligation, to intercede in any interactions or disputes. You agree that Phaser will not be responsible for any liability incurred as the result of such interactions. Without limiting Section 3.3 (User Conduct), you agree to comply with Phaser’s Anti-Harassment Policy, which is hereby incorporated by reference and available for review here. The Services may contain User Content provided by other Registered Users. Phaser is not responsible for and does not control User Content. Phaser has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.

3.5           Monitoring and Enforcement. Phaser reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates the Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Phaser; (c) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (d) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.

If Phaser becomes aware of any possible violations by you of the Agreement, Phaser reserves the right to investigate such violations. If, as a result of the investigation, Phaser believes that criminal activity has occurred, Phaser reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Phaser is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in Phaser’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement; (iii) respond to any claims that Your Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Phaser, its Registered Users or the public, and all enforcement or other government officials, as Phaser in its sole discretion believes to be necessary or appropriate.

3.6           Storage. Phaser has no obligation to store any of Your Content. Phaser has no responsibility or liability for the deletion or accuracy of any User Content, including Your Content; the failure to store, transmit, or receive transmission of any User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. You agree that Phaser retains the right to create reasonable limits on Phaser’s use and storage of User Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits as determined by Phaser in its sole discretion.

4.              OWNERSHIP

4.1           Services. Except with respect to Your Content and other User Content, you agree that Phaser and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, text, compilations, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and software). You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.

4.2           Trademarks. Phaser’s name and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Phaser and may not be used without permission in connection with your, or any third-party, products or services. Third party trademarks, service marks, and trade names that may appear on or in the Services are the property of their respective owners.

4.3           Your Content. Phaser does not claim ownership of Your Content. However, when you post or publish Your Content on or in any Services, you represent that you own or have all necessary rights to create, post, or publish Your Content on or in the Services.

4.4           License to Your Content. You grant Phaser a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Registered Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services, including as part of the Forum. You agree that you, not Phaser, are responsible for all of Your Content. You may not post a photograph of another person without that person’s permission.

4.5           Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to the Forum or any other “public” area on the Services, you hereby expressly permit Phaser to identify you by your username (which may be a pseudonym) as the contributor of Your Content.

4.6           Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Phaser through email or through its suggestion, feedback, or similar pages (“Feedback”) is at your own risk and that Phaser has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Phaser a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Phaser’s business.

5.              RESPECTING COPYRIGHT

5.1           Procedure for Making Claims of Copyright Infringement. Phaser respects the intellectual property rights of others and follows the requirements set forth in the Digital Millennium Copyright Act (“DMCA”) and other applicable laws. It is Phaser’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Phaser by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing, such as a URL; (d) your address, telephone number and email address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Phaser’s Copyright Agent for notice of claims of copyright infringement is as follows:

Copyright Manager

Phaser Studio Inc.

548 Market St PMB 90114

San Francisco, CA 94104

Phone: 707-297-9255

Email: [email protected]

 

5.2           Phaser’s Actions Upon Receipt of Notifications of Claimed Infringement. If Phaser receives a complete notification from a rights holder or someone acting on their behalf claiming that content on a channel infringes the rights holder’s copyright, Phaser generally notifies the applicable Registered User. At the same time, we will generally remove or disable access to recorded or other content containing the claimed infringing material. We may suspend an Account if the claimed infringement is continuing at the time we receive the rights holder’s notification.

5.3           Phaser’s Actions Upon Receipt of Counter-Notifications. If Phaser receives a complete counter-notification from the applicable Registered User, Phaser generally notifies the claimant who submitted the original notification. At the same time, we may restore recorded content containing the claimed infringing material. Disputed notifications generally will not qualify for a strike under our Repeat Infringer Policy (as provided by Section 5.7 (Repeat Infringer Policy), unless and until the dispute has been resolved by the applicable Registered User and the rights holder. Please note that Phaser may not be able to reinstate certain material or access to it due to factors such as the passage of time or the format in which the material was broadcast or stored.

5.4           Phaser’s Actions Upon Receipt of Retractions. If Phaser receives a retraction from a rights holder or someone acting on their behalf, we may restore recorded content containing the claimed infringing material and the disputed notification will not qualify for a strike under our Repeat Infringer Policy (as provided by Section 5.7 (Repeat Infringer Policy)). Please note that Phaser may not be able to reinstate certain material or access to it due to factors such as the passage of time or the format in which the material was broadcast or stored.

5.5           How to Submit a Counter-Notification. If you are a Registered User and a notification of claimed infringement has been submitted against Your Content, we encourage you to review the details we have provided and consider your options. If you believe that the notification, and any action Phaser has taken as a result, was sent due to a mistake (for example, you believe your actions qualify as fair use under U.S. law) or misidentification, then you may send us a counter-notification. To send a counter-notification, please provide all of the following information: (a) URL(s) where the material that was the subject of the notification of claimed infringement appeared before it was identified, removed, or access to it was disabled; (b) name of the claimant who submitted the notification; (c) your Phaser username, if any; (d) your full legal name; (e) your email address; (f) your full postal address; (g) your phone number; and (h) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you have a good faith belief that the material identified in the notification was identified, removed, and/or disabled as a result of mistake or misidentification. You also have the option to explain why you believe there was a mistake or misidentification. Counter-notifications that include all of the information above should be sent to Phaser’s Copyright Agent as identified in Section 5.1 (Procedure for Making Claims of Copyright Infringement). Keep in mind that failure to provide this information could result in Phaser being unable to take action in response to your counter-notification.

5.6           How to Submit a Retraction. If you are a Registered User who has received a notification of claimed infringement, you can seek a retraction by reaching out to the rights holder or agent who sent the notification directly. Phaser will honor retractions of notifications from the party that originally submitted the notifications. If you are a rights holder or agent who submitted a notification that you wish to retract, please contact Phaser’s Copyright Agent as identified in Section 5.1 (Procedure for Making Claims of Copyright Infringement) with the following information: (a) the date of your original notification; (b) the copyrighted work(s) allegedly infringed; (c) the URL(s) where the allegedly infringing material could be found; and (d) a signature.

5.7           Repeat Infringer Policy. Phaser will terminate a Registered User’s access to the Services if such Registered User is determined by Phaser to be a “repeat infringer” of copyrighted works on the Services. Under our policy, a Registered User will be considered a repeat infringer if they accrue three copyright strikes. Furthermore, we may in appropriate cases and at our sole discretion, limit access to the Services and/or terminate the Accounts of any Registered User who blatantly and egregiously infringes the intellectual property rights of others, whether or not repeat infringement has occurred. Registered Users generally earn a strike when Phaser receives a complete notification of infringement and does not receive a complete counter-notification regarding the alleged infringement or a retraction of the notification. Strikes are not permanent, but rather are associated with an Account for enough time for Phaser to determine whether the Registered User is engaging in repeated infringement such that termination is necessary under this policy. When determining whether Registered Users are repeat infringers under this policy, we take into consideration complete notifications of claimed infringement from rights holders, complete counter-notifications from Registered Users, retractions from rights holders, and other relevant factors and circumstances. Phaser may also ask the complainant and/or Registered User for more information where we think it’s necessary to fairly apply our Repeat Infringer Policy. If a relevant court rules that a Registered User is an “infringer” or “repeat infringer” on Phaser, we will take that ruling as conclusive under our Repeat Infringer Policy. To provide judicial determinations showing that a Registered User is an infringer, or a repeat infringer, on the Services, please forward it to our Phaser’s Copyright Agent as identified in Section 5.1 (Procedure for Making Claims of Copyright Infringement) with “court ruling regarding infringer/repeat infringer” in the subject line. Phaser personnel will review the submission and may contact the complainant and/or Registered User to verify the court ruling and understand its scope.

6.              FEES

6.1           Payment. If you sign up for a subscription to paid features of the Services such as Phaser Editor and Phaser Compressor (a “Subscription”), you agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable in accordance with the Phaser pricing plans available here (collectively, the “Subscription Fees”). You will be responsible for payment of the applicable Subscription Fees at the time you create your Account and select your payment package (each, a “Subscription Commencement Date”). By providing Phaser with your credit card number and associated payment information, you agree that Phaser is authorized to immediately invoice your Account for all Subscription Fees as they become due and payable and that no additional notice or consent is required. No contract will exist between you and Phaser for a Subscription until Phaser accepts your order by a confirmatory email or other appropriate means of communication. You agree to immediately notify Phaser of any change in your billing address or the credit card account used for payment hereunder. Phaser reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by email delivery to you. Except as set forth in the Agreement, all Subscription Fees are non-refundable.

6.2           Third-Party Payment Providers and Processors. You must provide Phaser with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (each, a “Payment Provider”) as a condition to signing up for a Subscription. Your Payment Provider agreement governs your use of the designated credit card account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities with respect thereto. Phaser uses Stripe, Inc. and its affiliates as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services). By signing up for a Subscription, you acknowledge Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and agree to be bound by Stripe’s Terms of Service (currently accessible at https://stripe.com/us/terms) and hereby consent and authorize Phaser and Stripe to share any information and payment instructions you provide with one or more third-party payment processor(s) to the minimum extent required to complete your transactions.

6.3           Automatic Renewal. Your Subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial Subscription period, and again after any subsequent Subscription period, your Subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Phaser’s then-current price for such Subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your Subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Phaser that your Subscription will be automatically renewed, you will have thirty (30) days from the date of the Phaser notice), by logging in and going to the “Subscriptions” tab of your “Account” page and clicking “Cancel subscription.” If you want to change or terminate your Subscription, please contact Phaser at [email protected] or log in and go to the “Subscriptions” tab on your “Account” page. If you cancel your Subscription, you may use your Subscription until the end of your then-current Subscription term; your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Subscription Fees paid for the then-current Subscription period. By subscribing, you authorize Phaser to charge your Payment Provider now, and again at the beginning of any subsequent Subscription period. Upon renewal of your Subscription, if Phaser does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Phaser may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new Subscription commitment period will begin as of the day payment was received).

6.4           Free Trials and Other Promotions. Any free trial or other promotion that provides Subscription-level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable Subscription Fee. If you are inadvertently charged for a Subscription, please contact Phaser to have the charges reversed.

6.5           Taxes. The payments required under Section 6.1 (Payment) do not include any Sales Tax that may be due in connection with the services provided under the Agreement. If Phaser determines it has a legal obligation to collect a Sales Tax from you in connection with the Agreement, Phaser may collect such Sales Tax in addition to the payments required under Section 6.1 (Payment). If any services, or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Phaser, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Phaser for any liability or expense Phaser may incur in connection with such Sales Taxes. Upon Phaser’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

7.              THIRD-PARTY SERVICES. The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Phaser. Phaser is not responsible for any Third-Party Websites or Third-Party Applications. Phaser provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website, the Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

8.              Indemnification. You agree to indemnify and hold Phaser, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Phaser Party” and collectively, the “Phaser Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of any Service in violation of the Agreement; (c) your violation of any rights of another party, including any Registered Users; or (d) your violation of any applicable laws, rules or regulations. Phaser reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Phaser in asserting any available defenses. This provision does not require you to indemnify any of the Phaser Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.

9.              DISCLAIMER OF WARRANTIES AND CONDITIONS

9.1           As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. PHASER EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.

(a)            PHASER MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

(b)            NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PHASER OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

(c)            From time to time, Phaser may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Phaser’s sole discretion. The provisions of this section apply with full force to such features or tools.

9.2           No Liability for Content or Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT PHASER PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD PHASER PARTIES LIABLE, FOR THE CONTENT OF THIRD PARTIES, INCLUDING THE CONTENT OF OTHER REGISTERED USERS, OR FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

9.3           Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Phaser to monitor such materials and that you access these materials at your own risk.

10.           LIMITATION OF LIABILITY

10.1         Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL PHASER PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT PHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A PHASER PARTY FOR (a) DEATH OR PERSONAL INJURY CAUSED BY A PHASER PARTY’S NEGLIGENCE; OR FOR (b) ANY INJURY CAUSED BY A PHASER PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

10.2         Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, PHASER PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAID TO Phaser by you during the THREE (3)-month period prior to the act, omission or occurrence giving rise to such liability; or THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A PHASER PARTY FOR (a) DEATH OR PERSONAL INJURY CAUSED BY A PHASER PARTY’S NEGLIGENCE; OR FOR (b) ANY INJURY CAUSED BY A PHASER PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

10.3         User Content. EXCEPT FOR PHASER’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN PHASER’S PRIVACY POLICY, PHASER ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

10.4         Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

10.5         Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PHASER AND YOU.

11.           TERM AND TERMINATION

11.1         Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.

11.2         Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services; or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.

11.3         Termination of Services by Phaser. You will have thirty (30) days from the Subscription Commencement Date, or any Renewal Commencement Date, for any Subscription hereunder, to cancel such Subscription, in which case Phaser will refund your Subscription Fee, if already paid pursuant to Section 6.1 (Payment), for the applicable Subscription. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Phaser is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Phaser has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Phaser’s sole discretion and that Phaser shall not be liable to you or any third party for any termination of your Account.

11.4         Termination of Services by You. If you want to terminate the Services provided by Phaser, you may do so by (a) notifying Phaser at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Phaser’s address set forth below. YOUR SUBSCRIPTION WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 6.3 (AUTOMATIC RENEWAL).

11.5         Effect of Termination. Termination of any Subscription includes removal of access to the paid features of the Services associated with such Subscription and barring of further use of such features of the Services. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Phaser will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

11.6         No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Phaser community, is discontinued by Phaser due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Phaser community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for Subscription Fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Phaser reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

12.           ARBITRATION AGREEMENT. Please read this Section 12 (sometimes referred to herein as this “Arbitration Agreement”) carefully. It is part of your contract with Phaser and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION.

12.1         Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Phaser agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Website, any communications you receive from Phaser, or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (a) you and Phaser may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (b) you or Phaser may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of this Agreement.

12.2         Informal Dispute Resolution. There might be instances when a Dispute arises between you and Phaser. If that occurs, Phaser is committed to working with you to reach a reasonable resolution. You and Phaser agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Phaser therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Phaser that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [email protected] or regular mail to our offices located at 548 Market St PMB 90114, San Francisco, CA 94104. The Notice must include: (a) your name, telephone number, mailing address, and email address (if you have one); (b) the name, telephone number, mailing address and email address of your counsel, if any; and (c) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

12.3         Waiver of Jury Trial. YOU AND PHASER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Phaser are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

12.4         Waiver of Class and Other Non-Individualized Relief. YOU AND PHASER AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 12.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 12.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Phaser agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in San Francisco, California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Phaser from participating in a class-wide settlement of claims.

12.5         Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Phaser agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (a) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (b) a statement of the legal claims being asserted and the factual bases of those claims; (c) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (d) a statement certifying completion of the Informal Dispute Resolution process as described above; and (e) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (i) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless you and Phaser otherwise agree, or the Batch Arbitration process discussed in Section 12.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.

You and Phaser agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

12.6         Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 12.9 is triggered, the AAA will appoint the arbitrator for each batch.

12.7         Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (a) all Disputes arising out of or relating to Section 12.4 (Waiver of Class or Other Non-Individualized Relief), including any claim that all or part of Section 12.4 (Waiver of Class or Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that Section 12.4 (Waiver of Class or Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (b) except as expressly contemplated in Section 12.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (c) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (d) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 12.9 The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

12.8         Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Phaser need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

12.9         Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Phaser agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Phaser by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (a) administer the arbitration demands in batches of one hundred (100) Requests per batch (plus, to the extent there are less than one hundred (100) Requests left over after the batching described above, a final batch consisting of the remaining Requests); (b) appoint one arbitrator for each batch; and (c) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Phaser.

You and Phaser agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

12.10      30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 548 Market St PMB 90114, San Francisco, CA 94104, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address provided to Phaser (if applicable), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

12.11      Invalidity, Expiration. Except as provided in Section 12.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Phaser as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

12.12      Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Phaser makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Phaser at 548 Market St PMB 90114, San Francisco, CA 94104, your continued use of the Website, including the acceptance of products and services offered on the Website following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Website, any communications you receive, any products sold or distributed through the Website or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Phaser will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.

13.           INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Phaser intends to announce such Services or Content in your country. The Services are controlled and offered by Phaser from its facilities in the United States of America. Phaser makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law. The following provisions shall apply only if you are located in the countries listed below.

13.1         United Kingdom. A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.

13.2         Germany. Notwithstanding anything to the contrary in Section 10 (Limitation of Liability), Phaser is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).

 

14.           GENERAL PROVISIONS

14.1         Governing Law. Any dispute, claim or request for relief relating in any way to your use of the services will be governed and interpreted by and under the laws of the state of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.

14.2         Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Phaser agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.

14.3         Electronic Communications. The communications between you and Phaser may take place via electronic means, whether you visit the Services or send Phaser emails, or whether Phaser posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Phaser in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Phaser provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.

14.4         Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Phaser’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

14.5         Force Majeure. Phaser shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

14.6         Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

14.7         Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.

14.8         Notice. Where Phaser requires that you provide an email address, you are responsible for providing Phaser with your most current email address. In the event that the last email address you provided to Phaser is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Phaser’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Phaser at the following address: 548 Market St PMB 90114, San Francisco, CA 94104. Such notice shall be deemed given when received by Phaser by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

14.9         Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

14.10      Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

14.11      Export Control. You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Phaser are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Phaser products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

14.12      Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

14.13      Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.