Last updated: 29 Jan 2024
Terms of Use
MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF PHELIX AI INC. (“PHELIX”) SERVICES.
CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. IF CUSTOMER REGISTERS FOR A FREE TRIAL OF PHELIX SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING THE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Phelix’s direct competitors are prohibited from accessing the Services, except with Phelix’s prior written consent. This Agreement was last updated on February 6 2023. It is effective between Customer and Phelix as of the date of Customer’s accepting this Agreement.
- Definitions.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Services” means the products and services, namely an application, feature, function, machine learning algorithm, APIs or other technology, that Customer has ordered under an Order Form.
“Customer” means in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
“Customer Data” means data submitted by Customer through purchased Services.
“Content” means information obtained by Phelix from publicly available sources or its third party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form.
“Documentation” means Phelix provided user documentation relating to the Services
“Free Services” means Services that Phelix makes available to Customer free of charge.
“Order Form” means an ordering document or online order, including any addenda and supplements thereto. specifying the Services to be provided hereunder that is entered into between Customer and Phelix or Customer and an authorized Phelix partner or reseller.
“Services” means the products and services that are ordered by Customer under an Order Form, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by Phelix. “Services” exclude Content and Third-Party Applications.
“Successor Service” means any successor version of a Pilot Service or a product or service derived from a non-generally available alpha opr beta service Phelix may make available to Customer.
“Third-Party Application” means a Web-based or offline software application that is provided by Customer or a third party and which may interoperate with the Services, including, for example, an electronic medical records application or an application that is developed by or for Customer.
“User” means, in the case of an individual accepting these terms on their own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by Phelix without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Phelix at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, contractors and agents of Customer.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between the Parties.
- Use of Services.
- Provision and Use of Services. Phelix will make the Services available to Customer and its Affiliates, subject to the terms of this Agreement and the applicable Order Form(s). Phelix may make updates and changes to the Services from time to time. Phelix will notify Customer if Phelix makes a material change to the Services that has a material impact on Phelix’s use of the Services provided that Customer has subscribed with Phelix to be informed about such change. Phelix will notify Customer at least 2 months before discontinuing a Service purchased under an Order Form, unless Phelix replaces such discontinued Service with a materially similar Service or functionality.
- Protection of Customer Data. Phelix will only access or use Customer Data to provide the Services by Customer and as otherwise instructed by Customer. Phelix maintains appropriate safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards include, but are not limited to, measures for preventing unlawful access, use, modification or disclosure of Customer Data and to protect against anticipated threats or hazards to the security or integrity of the Services and Customer Data.
- Customer Responsibilities. Customer will allow only authorized Users to access the Services. Customer will (a) be responsible for Users’ compliance with this Agreement and Order Forms, including any acceptable use policy made available by Phelix (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, including any consents and notices required by law or otherwise, (c) use the Services only in accordance with this Agreement and Order Forms and applicable laws and government regulations, including privacy laws. Customer is responsible for any consents and notices required to permit (a) Customer’s use and receipt of the Services and (b) Phelix’’s accessing, storing, and processing of data provided by Customer (including Customer Data, personal information and personal health information) under the Agreement. Customer will not use, and will not allow End Users to use, the Services to provide, place or receive emergency service calls or emergency services.
Customer acknowledges that the Services are not medical diagnostic tools and Customer remains solely liable for any use of the Services which impact diagnostic, clinical, triaging or public health and safety outcomes, including COVID-19 or other health screenings and outcomes. Any information or content provided by Phelix, within the Services or otherwise, relating to COVID-19 or other health or public health and safety subjects, is to be used at Customer’s own risk, discretion and liability and Phelix does not accept any responsibility or liability.
- Integration and Interoperability. The Services contain features designed to interoperate with Third-Party Applications. To use such features, Customer may be required to obtain access to such Third-Party Applications from their providers, and may be required to grant Phelix access to Customer’s account(s) on such Third-Party Applications. If Customer chooses to use a Third-Party Application with a Service, Customer grants Phelix permission to allow the Third-Party Application and its provider to access Customer Data as required for the interoperation of that Third-Party Application with the Service. Any acquisition by Customer of a Third-Party Application, and any exchange of data between Customer and any Third-Party Application provider, product or service is solely between Customer and the applicable Third-Party Application provider. Phelix is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Application or its provider. Customer acknowledges and agrees that the Services may operate from infrastructures owned and operated by third parties and data may be hosted on third party platforms for the Services.
- Usage Restrictions. Customer will not (a) make any Service available to anyone other than Customer or authorized Users, or use any Service for the benefit of anyone other than Customer or its Affiliates, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit, or use any Services to access or use any of Phelix’s intellectual property except as permitted under this Agreement or an Order Form, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, (k) disassemble, reverse engineer, or decompile a Service, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent. Customer will not use the Services to transmit, store, or process health information subject to United States HIPAA regulations except as permitted by an executed HIPAA BAA.
Any use of the Services in breach of the foregoing by Customer or Users that in Phelix’s judgment threatens the security, integrity or availability of Phelix’s services, may result in immediate suspension of the Services, however Phelix will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
- Usage Limits. Services and Content are subject to usage limits specified in Order Forms and associated documentation. If Customer exceeds a contractual usage limit, Phelix may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Phelix’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Phelix’s request, and/or pay any invoice for excess usage in accordance with this Agreement.
- 6. License Granted by Customer. Customer grants Phelix, and its applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display Customer Data, each as appropriate for Phelix to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement.
- Free Services. Phelix may make Free Services available to Customer at Phelix’s discretion. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the relevant Order Form(s) or documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that Phelix, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Phelix will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if Phelix terminates Customer’s account, except as required by law, Phelix will provide Customer a reasonable opportunity to retrieve its Customer Data.
Free Services may contain bugs or errors and are provided as-is. Any participation in or use of the Free Services or its contents is at Customer’s sole risk. Customer acknowledges that Phelix may discontinue Free Services at any time in its sole discretion, and may never make an applicable Successor Service available.
NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT OR ORDER FORM, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND PHELIX SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE PHELIX’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, PHELIX AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO PHELIX AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
- FEES AND PAYMENT
- Fees. Customer will pay all fees and applicable taxes specified in Order Forms. Payment obligations are non- cancelable and fees paid are non-refundable. If Customer entered into an Order Form via a Phelix authorized partner or reseller, then the fees and payment terms contained therein will govern instead of this section 7.
- Invoicing and Payment. Customer will provide Phelix with valid and updated credit card information. Customer authorizes Phelix to charge such credit card for all purchased Services listed in the Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Phelix will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Phelix and notifying Phelix of any changes to such information.
- Overdue Charges. If any invoiced amount is not received by Phelix by the due date, then without limiting Phelix’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
- Suspension of Service. If any charge owing by Customer under this Agreement is 15 days or more overdue, Phelix may suspend Services until such amounts are paid in full, provided that Phelix will give Customer at least 7 days’ prior notice that its account is overdue before suspending services to Customer.
- Payment Disputes. Phelix will not exercise its rights under the “Overdue Charges” or “Suspension of Service” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
- Taxes. Customer is responsible for any taxes, and Customer will pay Phelix for the Services without any reduction for taxes. If Phelix is obligated to collect or pay taxes, the taxes will be invoiced to Customer accordingly. If required under applicable law, Customer will provide Phelix with applicable tax identification information that Phelix may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Phelix for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Customer.
- PROPRIETARY RIGHTS AND CONFIDENTIALITY
- Reservation of Rights and Ownership. Customer retains all Intellectual Property Rights in Customer Data. Phelix owns all intellectual property rights in the Services and any improvements, enhancements or modifications thereto, including to its machine learning algorithms. No jointly owned intellectual property is created under or in connection with this Agreement. Phelix may use any suggestions or feedback without obligation. Except as expressly described in the Agreement, the Agreement does not grant either party any rights, implied or otherwise, to the other’s content or Intellectual Property.
- Mutual Protection of Confidential Information. Information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement that is identified as confidential or that would reasonably be understood to be confidential based on the nature of the information or the circumstances surrounding its disclosure, is Confidential Information of the Disclosing Party. The Services and all information provided or disclosed to Customer relating to the Services is Confidential Information of Phelix and the Customer Data is Confidential Information of the Customer. The Receiving Party shall use the same degree of care to protect such Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its Users, and other employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
- REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
- Representations and Warranties. Each party represents and warrants that it has full power and authority to enter into the Agreement.
- Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
- MUTUAL INDEMNIFICATION
- Phelix Indemnification Obligations. Phelix will defend Customer against a proceeding made or brought against Customer by a third party alleging that any purchased Service infringes or misappropriates such third party’s intellectual property rights(a “Claim Against Customer”), and will indemnify Customer from damages finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Phelix in writing of, a Claim Against Customer. If Phelix receives information about an infringement or misappropriation claim related to a Service, Phelix may in its discretion (i) modify the Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or, at its discretion, , terminate the Service. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Phelix, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (4) a Claim against Customer arises from Content, a Third-Party Application or Customer’s breach of this Agreement, or applicable Order Forms.
- Customer Indemnification Obligations. Customer will defend Phelix against any proceeding made or brought against Phelix by a third party alleging that any Customer Data or Customer’s use of Customer Data within the Services or a Third-Party Application infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s or its End User’s breach of section 2.3 (“Customer Obligations”) (each a “Claim Against Phelix”), and will indemnify Phelix from any damages, attorney fees and costs finally awarded against Phelix as a result of, or for any amounts paid by Phelix under a settlement approved by Customer in writing of, a Claim Against Phelix.
- Indemnification Conditions. Sections 8.1 (Phelix Indemnification Obligations) and 9.2 (Customer Indemnification Obligations) are conditioned on the following:
- The indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and proceeding.
- The indemnified party must tender to the indemnifying party sole control of the defense and settlement of the proceeding, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
- Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 9 states the parties’ only rights and obligations under this Agreement for any third party allegations or proceedings.
- LIMITATION OF LIABILITY
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO PHELIX UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ LIABILITY UNDER THE “CUSTOMER OBLIGATIONS” SECTION OR PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
- TERM AND TERMINATION
- Agreement Term. The Agreement is effective from the Effective Date until it is terminated in accordance with its terms (the “Term”). If Customer entered into an Order Form via a Phelix authorized partner or reseller, then the term defined therein will govern.
- Termination for Convenience. Subject to any financial commitments in an Order Form or addendum to the Agreement, Customer may terminate the Agreement or an Order Form for convenience with 60 days’ prior written notice to Phelix. Subject to any paid Subscription Terms remaining in an Order Form, Phelix may terminate the Agreement with 60 days’ prior written notice.
- Termination for Breach. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Effects of Termination. If the Agreement terminates or expires, then all Order Forms also terminate or expire. If an Order Form terminates or expires, then after that Order Form’s termination or expiration effective date, (a) all rights and access to the Services under that Order Form will terminate (including access to Customer Data, if applicable), unless otherwise agreed upon in writing, and (b) Phelix will send Customer a final invoice (if applicable) for payment obligations under that Order Form. Termination or expiration of one Order Form will not affect other Order Forms. If Customer ceases to have any Order Forms in effect for a period of 90 days or longer since the expiry of Customer’s most recent Order Form expiry or termination, Phelix may terminate this Agreement
- Survival. The following Sections will survive expiration or termination of the Agreement: Free Services, Fees and Payment, Proprietary Rights and Confidentiality, Disclaimers, Indemnification, Limitation of Liability, Effects of Termination, General Provisions.
- PROFESSIONAL SERVICES.
- Professional Services. “Professional Services” means implementation or integration work, training or customized machine learning workflows associated with the Services and performed by Phelix under a statement of work (“SOW”). The applicable SOW will describe the scope of Professional Services to be provided thereunder and the associated terms and fees, and will be executed by both parties prior to the performance of Professional Services.
- GENERAL PROVISIONS
- Export Compliance. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer will not permit any User to access or use any Service in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
- Notices. Phelix will provide notices under the Agreement to Customer by sending an email to the contact email provided by Customer under the applicable Order Form. Customer will provide notices under the Agreement to Phelix by sending an email to legal@phelix.ai. Notice will be treated as received when the email is sent. Customer is responsible for keeping its notification email address current throughout the Term. The parties may use emails to satisfy written approval and consent requirements under the Agreement.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Change of Control. If a party experiences a change of Control other than an internal restructuring or reorganization, then (a) that party will give written notice to the other party within 30 days after the change of Control and (b) the other party may terminate the Agreement any time within 30 days after it receives that written notice.
- Changes to this Agreement. Phelix may make changes to this Agreement, including pricing (and any linked documents) from time to time. Unless otherwise noted by Phelix, material changes to the Agreement will become effective 7 business days after they are made available to Customer (including via URL), except to the extent the changes apply to new functionality in which case they will be effective immediately. If Customer does not agree to the revised Agreement, Customer may stop using the Services or terminate this Agreement for convenience in accordance with the terms herein. Customer’s continued use of the Services after such material change will constitute Customer’s consent to such changes. Phelix will post any modification to this Agreement through the Services or to its website.
- Force Majeure. Phelix shall not be liable for failure or delay in performance of its obligations under this Agreement to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, pandemics, terrorism, riots, or war.
- Subcontracting. Phelix may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.
- No Agency. The Agreement does not create any agency, partnership, or joint venture between the parties.
- No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.
- Severability. If any part of the Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
- No Third-Party Beneficiaries. The Agreement does not confer any rights or benefits to any third party unless it expressly states that it does.
- Governing Law. All claims arising out of or relating to the Agreement or the Services will be governed by Ontario law, excluding conflict of laws rules, and will be litigated exclusively in the courts of Toronto; the parties consent to personal jurisdiction in those courts.
- Amendments. Except as specifically described otherwise in the Agreement, any amendment to the Agreement must be in writing, expressly state that it is amending the Agreement, and be signed by both parties.
- Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Phelix and Customer regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, and (2) this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
- Electronic Signatures. The parties consent to electronic signatures.