End User License Agreement

This End User License Agreement is for obtaining a license to use Phenium Mobile Application. Please read this document carefully in its entirety, as the End User License Agreement ( "EULA" ) is a legal agreement between you (either an individual or a single entity) and Phenium Inc. It is important you read it, as it affects your rights and responsibilities. By downloading, installing, or using Phenium Mobile Application for Android, iOS or other mobile platform ("Mobile Application"), becoming a Member, and/or by selecting the "Sign Up","Agree", “Next” or “Enter” button (or similar language of assent) in connection with this EULA, you agree to be bound by the terms of the EULA.
Subject to the terms of this EULA, Phenium hereby grants you a limited, personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable, non-resellable license and right to use the Phenium Mobile Application for the sole purpose of accessing Phenium Services on devices you own or control.
Except as expressly specified in this EULA, you may not:
  • (a) copy or modify the Mobile Application;
  • (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Mobile Application to any third party; or
  • (c) use the Mobile Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA. You acknowledge and agree that portions of the Mobile Application, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Phenium and its licensors. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer any components of the Mobile Application provided in object code or any other Phenium products or services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
Updates. From time to time, Phenium will update the service. If you receive a notification within the Mobile Application, or via the Apple App Store or Google Play Store, that an update is ready for you to download, you must download it before continuing to use the Mobile Application. Using the Mobile Application without updating it to the latest version may cause certain features not to function correctly - you do so at your own risk.
Data charges. Third party usage charges are not included in the member Account service. Phenium is not responsible for any mobile data charges you incur while using the Mobile Application.
GPS location and time stamping. When you click "Submit" (or similar language of assent) on any form within the Mobile Application, the Mobile Application will record your location at that time using your mobile device's GPS function. The time will also be recorded. You can disable the GPS functionality by going to your mobile device's Settings.
Offline use. If you attempt to submit data when your mobile device does not have internet access, the data will not be submitted until the next time you open the Mobile Application on your mobile device when your device has internet access.
Lawful use. You agree to comply with all applicable laws, rules and regulations when using the Mobile Application. You will not use the Mobile Application to infringe anyone's rights, including, without limitation, any intellectual property rights of any person or entity. You will not use the Mobile Application in any way that may be deemed offensive, indecent or objectionable.
Personal information collection. By using the Mobile Application, you consent to the collection, use and disclosure of personal information as set out in the Privacy Policy.
The Mobile Application is licensed, not sold to you. You acknowledge and agree that any and all intellectual property rights (the "IP Rights") in the Mobile Application are and shall remain the exclusive property of Phenium. Nothing in this EULA intends to or shall transfer or vest any IP Rights in you. You are only entitled to the limited use of the rights granted to you in this EULA. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this EULA, as well as a violation of applicable intellectual property laws.
You acknowledge and understand that all title and rights in and to any third party content, which is contained or accessed through Phenium Services, is the property of the respective content owners and may be protected by applicable patent, copyright, or other intellectual property laws and treaties. You agree that such third parties may enforce their rights against you directly in their own name.
In the course of using the Mobile Application, you may provide Phenium with feedback, including but not limited to suggestions, observations, errors, problems, and defects regarding the Mobile Application or other Phenium services (collectively "Feedback"). You hereby grant Phenium a worldwide, irrevocable, perpetual, royalty-free, transferable and sub-licensable, non-exclusive right to use, copy, modify, distribute, display, perform, create derivative works from and otherwise exploit all such Feedback.
From time to time, Phenium may revise the EULA. To help you stay current of any changes, Phenium notes the date the EULA was last updated below. Your use of the Mobile Application following the posting of any revised EULA shall be deemed acceptance of the revised policy. Phenium strongly recommends checking EULA periodically. If, and only if, Phenium makes revisions to the EULA that result in a material lessening of the restrictions on Mobile Application's use or disclosure of your Personal Information, Phenium will make a commercially reasonable attempt to obtain your consent before implementing such revisions with respect to such Personal Information. If you disagree with the provisions of the EULA at any time, your sole remedy is to terminate your use of the Mobile Application. Continued use of the Mobile Application constitutes your agreement to the Terms of Service as in effect.
In addition to the limitations of Phenium's liability expressly contained in this EULA, you assume all the responsibility and risk for your use of the Mobile Application and the results and performance thereof, and your use of any data collection forms created or developed (in whole or in part) by parties other than Phenium. THE MOBILE APPLICATION IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND. Phenium DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Phenium OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS EULA. Phenium DOES NOT REPRESENT OR WARRANT THAT:
  • (I) THE Phenium APP OR ANY THIRD PARTY SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED;
  • (II) THE OPERATION OF THE MOBILE APPLICATION OR ANY THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED; OR
  • (III) THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE MOBILE APPLICATION, ANY THIRD PARTY SOFTWARE AND ANY DATA ACCESSED THEREFROM. INFORMATION PROVIDED THROUGH THE MOBILE APPLICATION MAY BE DELAYED, INACCURATE, OR CONTAIN ERRORS OR OMISSIONS. THE PHENIUM GROUP (DEFINED BELOW) AND PHENIUM'S THIRD PARTY LICENSORS WILL HAVE NO LIABILITY WITH RESPECT THERETO. PHENIUM MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE MOBILE APPLICATION OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE MOBILE APPLICATION OR THE THIRD PARTY SOFTWARE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE MOBILE APPLICATION IS TO UNINSTALL AND CEASE USE OF THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Your use of the Mobile Application is at your own risk. IN NO EVENT WILL PHENIUM, ITS AFFILIATED ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AUTHORIZED AGENTS (COLLECTIVELY, THE "PHENIUM GROUP") AND PHENIUM'S THIRD PARTY LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE MOBILE APPLICATION OR ANY THIRD PARTY APPLICATION UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE Phenium GROUP OR ITS THIRD PARTY LICENSORS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL PHENIUM'S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS EULA, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID, IF ANY, BY YOU FOR THE MOBILE APPLICATION. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SUCH AS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. The limitation of liability herein is a fundamental element of the basis of the bargain and reflects a fair allocation of risk. The Website and Phenium Group’s Services would not be provided without such limitations and you agree that the limitations and exclusions of liability, disclaimers and exclusive remedies specified herein will survive even if found to have failed in their essential purpose.
To the maximum extent permitted by law, you agree to defend, indemnify and hold the Phenium Group harmless from and against any and all claims, law suits, losses, liability, costs or expenses (including but not limited to reasonable attorneys fees) arising from or incurred as a result of your use of the Software, including your downloading, installation, or use of the Software, or your violation of this EULA.
YOU AND PHENIUM AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THIS EULA OR PHENIUM'S SERVICES, SHALL BE DETERMINED BY BINDING ARBITRATION INSTEAD OF IN COURTS OF GENERAL JURISDICTION. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND PHENIUM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This arbitration provision shall survive termination of this EULA. The arbitration will be governed by the Commercial Arbitration Rules and, if appropriate, the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"). YOU AND PHENIUM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Phenium agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator shall decide any issues relating to the enforceability and/or applicability of the arbitration provisions of this EULA to the dispute. 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 that party's individual claim.
This EULA shall be governed by and interpreted under the laws of the State of Delaware, without regard to its conflicts of laws or provisions. You agree that any legal proceedings must be brought and resolved in Delaware.
Neither party will be liable for, or be considered to be in breach of or default under this EULA on account of, any delay or failure to perform as required by this EULA as a result of any cause or condition beyond such party's reasonable control (including, but not limited to: fire, explosion, earthquake, storm, flood, wind, drought and act of God or the elements; court order; act, delay or failure to act by civil, military or other governmental authority; strike, lockout, labor dispute, riot, insurrection, sabotage, acts of terrorism, declared or undeclared war; unavailability of required parts, materials or other items; and act, delay or failure to act by the other party or any third party); provided that such party uses its best efforts to promptly overcome or mitigate the delay or failure to perform. This Section will not apply to any monetary obligation of either party.
A printed version of the EULA and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the EULA to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
If for any reason a tribunal of competent jurisdiction finds any provision of this EULA or portion thereof, to be unenforceable, that provision of this EULA shall be enforced to the fullest extent permissible, and the remainder of the EULA shall continue in full force and effect.
The EULA, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Phenium without restriction.
Nothing in the EULA will be construed as creating a joint venture, partnership, employment or agency relationship between you and Phenium, and you do not have any authority to create any obligation or make any representation on Phenium's behalf.
The EULA and all the policies referenced herein constitute the entire agreement between Phenium and you concerning the subject matter hereof, and it may only be modified by written agreement by a Phenium official with authority to legally bind Phenium.
If you have any questions about the Phenium Services, please visit our website at www.Phenium.com. If you have any other questions, suggestions, ideas, complaints or claims, please contact info@Phenium.com.
This version of the EULA was last updated on December 15, 2016.