Terms of Service

These Terms of Service are an agreement between you and Phenium Inc., a Delaware Corporation. Phenium's goal is to bring you functional and innovative task management and reporting services. To accomplish that, Phenium offers services for mobile data collection, storage and analysis ("Service"). By using our Website www.Phenium.com ("Website") and Phenium Mobile Applications ("Mobile Applications") and/or any services accessible from them, you agree to be bound by the following terms and conditions ("Terms of Service"). If you do not agree to these terms, or if you do not agree with our Privacy Policy, or our End User License Agreement, please do not use any Phenium services.
You acknowledge that you have read and agree to these Terms of Service when you browse, access or otherwise use the Website or the Mobile Applications.
Thank you for using our Services!
Phenium grants you a limited license to use Phenium online and mobile services. The license is a revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable, and non-resellable license. With the license, you can access and use the Website and the Mobile Applications, solely for your own internal purposes, subject to these Terms of Service. You may not permit the Website or Mobile Applications to be used by or for the benefit of unauthorized third parties. All rights not expressly granted to you are reserved by Phenium and its licensors.
Fees for Phenium services are published on Website and/or sent to you in an offer letter at your request. Phenium may change its fees from time to time at its sole discretion. Phenium will notify you of any changes to the amount of your subscription fee at least thirty (30) days prior to the change. You are solely responsible for ensuring Phenium has your up-to-date credit card details. If your payment becomes delinquent, Phenium may suspend or terminate any or all services provided for accounts that are delinquent by sixty (60) calendar days or more from the date payment is due for the Services. Phenium may provide written notice of delinquent payments after fifteen (15) and thirty (30) days, and will provide written notice of intent to suspend or terminate services (15) days before doing so. You acknowledge that suspension or termination of service will directly affect your access to Phenium Services. For more information on how we handle your Data upon termination, see below paragraph titled Cancellation.
In order to use certain features of the Website, you will have to create a member account ("Account"). You may never use another member’s Account without permission. As part of the account set-up and registration process, you may be asked to select a username and password. We may refuse to grant you a username for any reason in our sole discretion. You will be responsible for the confidentiality and use of your username and password and agree not to transfer or resell your use of or access to the Website or Mobile Applications to any third party.
You are fully responsible for maintaining the confidentiality of your username and password and any and all activities (including purchases, as applicable) that are conducted through your account.
Subject to these Terms and our Privacy Policy, you are granted a limited license to use services that are provided on Internet (“Website”) and the functionality provided by the Website to upload, store, display, aggregate, distribute and organize photographs and other information related to tasks, reports, campaigns, and other missions (“Content”) set by your company, employer or principal (“Principal”), and to copy, display, and use the functionality, materials, features, and services provided by the Website (collectively the “Materials”) solely for your Principal’s business purposes. The design and layout of the Website and the Mobile Applications are specifically excluded from the Materials. The Website is meant to be used solely with supported browsers through the Internet for your own internal purposes.
Phenium also offers native mobile device applications that enable you to collect data (the "Mobile Applications"). Phenium grants you and your Mobile Application users a limited, nonexclusive, nontransferable, revocable license to use the Mobile Applications, solely to access the Service. The terms of this license are contained in the End User License Agreement associated with the Mobile Application provided at the time of download or installation. The license to use the Mobile Application is automatically revoked when your account is terminated or deactivated, or if you otherwise cancel the use of the Service.
You understand that not all smartphones and tablets - and not all device operating systems versions - are supported. Please contact Phenium for more details. By using the Mobile Application, you understand and agree that certain information, including, but not limited to, the Mobile Application user's device, mobile carrier, internet access provider and physical location may be communicated to Phenium. You also acknowledge that Mobile Application users may incur data charges by transmitting data from their mobile devices, depending on Mobile Application user's wireless data/Internet usage plans. Phenium is not responsible for any such charges. You are responsible for removing a Mobile Application user's access to the Services when that user no longer is entitled to use the Website and Mobile Application services (for example, when an employee leaves your employment). Phenium will provide online tools to enable removal/replacement/addition of users.
You are solely responsible for the following with respect to all persons or entities that use the Mobile Application under your member Account:
  • i) Ensuring that Mobile Application users download the Mobile Application to their Mobile Devices.
  • ii) Ensuring that, after Mobile Application users receive notification on their Mobile Devices of the availability of Mobile Application updates, Mobile Application users download those updates.
  • iii) All content created by Mobile Application users. iv) Ensuring Mobile Application Users comply to all these Terms and Privacy Policy.
Phenium provides a variety of functions and services via the Website and the Mobile Applications, including access to creating reports, campaigns, missions and other tasks for your team(s) to collect, structure and share information (the "Service"). Unless otherwise noted, all text, content and documents available via the Service, including, any videos, names, logos, trademarks, service marks, brand identities, characters, trade names, graphics, designs, copyrights, trade dress, or other intellectual property appearing in and used to operate the Website and Mobile Applications, and the organization, compilation, look and feel, illustrations, artwork, videos, music, software and other works on the Website and Mobile Applications (the "Materials") are owned by Phenium or used with permission or under license from a third party (each an "Owner"), and are protected under copyright, trademark and other intellectual property and proprietary rights laws. As between Phenium and you, all right, title and interest in and to the Materials will at all times remain with Phenium and/or the Owners. All brand names, product names, titles, slogans, logos, or service names and other marks used on the Website, are registered and/or common law trade names, trademarks or service marks of Phenium or the applicable Owner. Except as expressly provided herein, nothing on the Website and the Mobile Applications shall be construed as conferring any license under Phenium's and/or its Owner's intellectual property rights, whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, Phenium may revoke any of the foregoing rights and/or your access to the Website and the Mobile Applications, or any part thereof, including the blocking of your IP Address, at any time without prior notice.
You own all rights, title and interest in and to all of your data. You shall have sole responsibility for the legality, reliability, accuracy, integrity and quality of your data. You hereby grant Phenium and its designees a worldwide, non-exclusive, sub-licenseable (through multiple tiers), assignable, royalty-free, fully paid-up, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, and publicly display and perform (publicly or otherwise) your Content, solely in connection with providing the Website to you. Please note that, while you retain ownership of your Content, any template or layout in which you arrange or organize such Content through tools and features made available through the Website and the Mobile Applications are not proprietary to you, and can be used by Phenium and others for any purposes. You acknowledge and agree that you have no rights in any such template and/or layout, and such template or layout shall be the sole and exclusive property of Phenium. You represent, warrant and covenant that
  • (i) you own or otherwise possess all necessary rights with respect to your Content, and
  • (ii) your Content does not and will not infringe, misappropriate, use or disclose without authorization, or otherwise violate any intellectual property or proprietary right of any third party, and are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.
No other use of the Website, Mobile Applications, or Materials is authorized. You agree that any copy of the Materials (or any portion of the Materials) that you make must retain all copyright and other proprietary notices contained herein or therein. Framing of the Website or Materials or posting of Materials on other websites is strictly prohibited. The use or misuse of any Materials, except as provided in the Terms of Service or in the Materials, is strictly prohibited. You shall not, without Phenium’s express written consent:
  • (a) distribute text or graphics to others,
  • (b) copy and retransmit, disseminate, broadcast, circulate, or otherwise distribute the Materials on any other server, or modify or re-use all or part of the Materials on this system or any other system,
  • (c) use any trade name, trademark, or brand name of Phenium in metatags, keywords and/or hidden text,
  • (d) copy, distribute, modify, transmit, perform, reuse, re-post, or otherwise display the Materials, in whole or in part, for public or commercial purposes or modify, translate, alter or create any derivative works thereof,
  • (e) create derivative works from the Materials or commercially exploit the Materials, in whole or in part, in any way,
  • (f) use the Website, the Mobile Applications, the Materials, and/or any portion thereof, in any manner that may give a false or misleading impression, attribution or statement as to Phenium, the Owner, or any third party referenced therein,
  • (g) use the Materials, and/or any services and products on the Website or accessible via the Website for unlawful purposes only; or
  • (h) alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice included in the Materials.
You agree that you will use the Website and the Mobile Applications only for lawful purposes. You will comply with all applicable laws and regulations including, without limitation, compliance with applicable privacy laws. You represent that you are not collecting any data that subjects Phenium or you to heightened data storage or protection standards (for example, the Health Insurance Portability and Accountability Act) and you will inform Phenium if you collect data subject to such standards.
You are solely responsible of the content you have uploaded. You shall not upload to, transmit through, or display via the Website or the Mobile Applications any Content that:
  • (i) is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights;
  • (ii) contains confidential, proprietary, or trade secret information of any third party;
  • (iii) violates the rights of others, including without limitation any privacy rights or rights of publicity;
  • (iv) impersonates any person or entity, falsely states or otherwise misrepresents your affiliation with any person or entity, or uses any fraudulent, misleading or inaccurate email address or other contact information;
  • (v) violates any applicable laws or regulations;
  • (vi) makes any statement, express or implied, that you are endorsed by Phenium;
  • (vii) harms minors in any way, including, but not limited to, by depicting content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct;
  • (viii) contains any unsolicited promotions, political campaigning, advertising or solicitations; or
  • (ix) in our sole judgment is inappropriate or objectionable or which restricts or inhibits any other person from using or enjoying the Website, or which may expose the Phenium, any of its officers, directors, or employees, or other users to any harm or liability of any type.
You shall not use the Website to engage in any of the following activities:
  • (i) accessing, using, or uploading Content to, or attempting to access, use, or upload Content to another user's Account without permission; or
  • (ii) transmitting, uploading, or downloading, any software or other materials that contain any viruses, worms, trojan horses, defects, date bombs, time bombs or other items of a destructive nature. Phenium also reserves the right to decide whether Content is appropriate and complies with these Acceptable Use Restrictions at any time, without prior notice and at its sole discretion.
The Website and the Mobile Applications may contain links allowing you to leave the Website or Mobile Applications for other sites that are not under our control ("Linked Site"). Phenium provides the linked sites to you only as a convenience and does not endorse any Linked Sites. Phenium is not responsible for the contents or transmission of any Linked Site or any link contained in a Linked Site or for ensuring that the Linked Sites contain no errors or viruses. Phenium is not responsible for the terms of service or privacy practices of the Linked Sites or any link contained in the Linked Sites. Your linking to any Linked Site or any other off-site page or other site is entirely at your own risk. Phenium encourages you to carefully read the policies of each site you visit.
In addition to the terms and conditions of these Terms, any contests, sweepstakes, surveys, games or similar promotions (collectively, "Promotions") made available through the Website or the Mobile Applications may be governed by specific rules that are separate from this Agreement. By participating in any such Promotion, you will become subject to those rules, which may vary from the terms and conditions set forth herein. We urge you to review any specific rules applicable to a particular Promotion, which will be linked from such Promotion, and to review our Privacy Policy which, in addition to these Terms, governs any information you submit in connection with such activities. To the extent that the terms and conditions of such rules conflict with these Terms, the terms and conditions of such rules shall control.
Although the services that Phenium offers are global, Phenium Inc. is a Delaware, USA, Corporation. By using the Website, you agree and acknowledge that the Website and Mobile Applications are hosted in the United States. If you are attempting to access the Website from a physical location within the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure that differ from United States laws, please be advised that through your continued use of this Website, which is governed by U.S. law, these Terms of Service, and the Phenium Privacy Policy, you are transferring your personal information to the United States and you consent to
  • (a) such transfer,
  • (b) the application of the laws of the United States and/or the State of Delaware with respect to any dispute arising from or related to the Privacy Policy and/or your use of the Website or the Mobile Applications, other than such rules, regulations, case law, and/or international treaties that would result in the application of the laws of a jurisdiction other than the United States or the State of Delaware, and
  • (c) the exclusive jurisdiction of the courts of the United States and the State of Delaware.
Any claim or dispute between you and Phenium that arises in whole or in part from your use of the Services or in connection with the Privacy Policy shall be decided as described in the paragraph below, titled Arbitration Requirement. Each party hereby waives any objection based on inconvenient forum.
Without limiting the foregoing, the Materials and all other features on the Website and the Mobile Applications are provided to you "as is" and "as available" without warranty of any kind with respect to the Website and the Mobile Applications and/or Materials, either express or implied, including but not limited to, fitness for a particular purpose, title, or non-infringement. Should applicable law not permit the foregoing exclusion of express or implied warranties, then Phenium hereby grants the minimum express or implied warranty required by such applicable law. No advice or information, whether oral or written, obtained by you from Phenium, its employees, agents, suppliers or any other persons shall create any warranty, representation or guarantee not expressly stated in this section. Additionally, Phenium does not make any warranties that the Website and Mobile Applications will be uninterrupted, secure or error free or that your use of the Website and Mobile Applications will meet your expectations, or that the Website or Mobile Applications, Materials, or any portion thereof, is correct, accurate, or reliable. Phenium reserves the right to change any part of the Website at anytime without notice.
You affirm that you are more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms of Service, and to abide by and comply with the Terms of Service.
Phenium intends to provide Members the ability to store data collected through the Website and the Mobile Applications on Phenium's servers. If Phenium determines, in its sole discretion, that you are storing an unreasonably large amount of data (for example, an unreasonable amount of video recordings), Phenium may impose additional charges or take other steps to mitigate this burden. Phenium will provide notice to you before doing so. Furthermore, the data storage service is for the purpose of actively used data. Notwithstanding anything contained herein, the functionality provided to you by the Website, the Mobile Applications, and the Phenium's systems, networks and servers are not an archive and Phenium shall have no liability to you or any other person for loss, damage, or destruction to your Content or any other information submitted to or via the Website or the Mobile Applications. You shall be solely responsible for uploading your Content, preventing any loss or damage to your Content, and maintaining independent archival and backup copies of any Content.
Either you or Phenium may cancel your Account at any time. If you cancel your Account, your access to this Service will continue until the end of the month or other period for which you have already paid. If Phenium notifies you of its intent to cancel your Account (other than for violation of these Terms of Service or for delinquent payment), your access to this Service will continue until the end of the month (or other period) for which you have already paid. If you have violated any of the Terms of Service, Phenium may cancel your access immediately. Your right to use the Website and the Mobile Applications will end once your Account is cancelled, and any data you have stored on the Website and the Mobile Applications, including Content and Materials, may be unavailable later, unless Phenium is required to retain it by law. In all termination situations (other than violation of the Terms of Service), for a limited time Phenium will arrange for you to have access to your data for the purposes of migrating it from the Service. However, Phenium is not responsible or liable for any records or information that is made unavailable to you as the result of your termination of your Account. You agree that Phenium will not be liable to you or any other party for any termination of your access to the Website or the Mobile Applications, Content, or Materials. If you have violated any of the Terms of Service, Phenium may, at its sole discretion, arrange alternative means to provide you with your data. Any limitations on liability that favor Phenium will survive the expiration or termination of these Terms for any reason.
From time to time, Phenium may revise the Terms of Service. To help you stay current of any changes, Phenium notes the date the Terms of Service was last updated below. Your use of the website following the posting of any revised Terms of Service shall be deemed acceptance of the revised policy. Phenium strongly recommends checking Terms of Service periodically. If, and only if, Phenium makes revisions to the Terms of Service that result in a material lessening of the restrictions on Phenium’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 Terms of Service at any time, your sole remedy is to terminate your use of the Services and inform us of such termination as described in the Terms of Service. Continued use of the Website constitutes your agreement to the Terms of Service as in effect.
Phenium does not permit copyright infringing activities and infringement of intellectual property rights on the Website or the Mobile Applications, and Phenium reserves the right to remove Content without prior notice and/or to terminate a user’s access to the Website and the Mobile Applications, if the User has been notified of infringing activity and has had Content removed from the Website more than twice. User shall not:
  • (i) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Website;
  • (ii) remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of the Website or the Mobile Applications;
  • (iii) "frame" or "mirror" any portion of the Website or the Mobile Applications, or link to any Material other than via the homepage of the URL located at http://www.gospocheck.com/ or the URLs provided by us to you for such purposes, without our prior written authorization;
  • (iv) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, "data mine" or in any way reproduce or circumvent the navigational structure or presentation of the Website; or
  • (v) harvest or collect information about or from users of the Website without their express consent and, if such consent is provided, only pursuant to applicable law. Phenium does not endorse any user submission or any opinion, recommendation, or advice expressed therein, and Phenium expressly disclaims any and all liability in connection with user submissions.
Phenium is committed to respecting and protecting the legal rights of copyright owners. As such, Phenium adheres to the following notice and take-down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any of the Materials infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a "DMCA Takedown Notice"). To be valid, a DMCA Takedown Notice must be provided to Phenium's designated copyright agent, Marten Stenfors. Email: marten@phenium.com. In order for Phenium to be authorized to take down any Materials, your DMCA Takedown Notice must comply with all of the requirements. To provide the necessary information for checking compliance, please include all following six items in your DMCA Takedown Notice:
  • i) Picture, copy or other identification and location description of the material claimed to be infringing or to be the subject of infringing activity that is to be removed or access disabled;
  • ii) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
  • iii) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • iv) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
  • v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • vi) A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
In addition to the limitations of Account holder's liability expressly contained in this Agreement, you assume all the responsibility and risk for your use of the Website and Service 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 Phenium SITE AND SERVICE ARE 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 AGREEMENT. Phenium DOES NOT REPRESENT OR WARRANT THAT:
  • (I) THE Phenium SITE OR SERVICE WILL MEET YOUR REQUIREMENTS OR WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED;
  • (II) THE OPERATION OF THE Phenium SERVICE WILL BE UNINTERRUPTED; OR
  • (III) THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE Phenium SITE OR SERVICE AND ANY DATA ACCESSED THEREFROM. INFORMATION PROVIDED THROUGH THE Phenium SITE OR SERVICE 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 Phenium SITE OR SERVICE OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE Phenium SITE OR SERVICE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
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 AGREEMENT OR THE USE OF OR INABILITY TO USE THE PHENIUM SITE OR SERVICE 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 AGREEMENT OR THE SERVICE, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID, IF ANY, BY YOU FOR THE Phenium SERVICE. 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.
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 Phenium Website, Mobile Applications or Service, or your violation of these Terms of Service.
YOU AND Phenium AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR PHENIUM'S WEBSITE, MOBILE APPLICATION OR SERVICE, 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 Agreement.
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 Agreement 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.
These Terms of Service 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 Agreement on account of, any delay or failure to perform as required by this Agreement 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 Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service 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 these Terms of Service or portion thereof, to be unenforceable, that provision of these Terms of Service shall be enforced to the fullest extent permissible, and the remainder of these Terms of Service shall continue in full force and effect.
The Terms of Service, 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 these Terms of Service 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.
These Terms of Service 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 Terms of Service was last updated on December 15, 2016.

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.