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Terms of Service

Last updated: 11/27/18

Welcome to Phlex!

Phlex LLC (“Phlex,” “we,” “us,” “our”) provides its products and services to you through its website www.phlexswim.com (the “Site”) and its mobile application (“Phlexswim App”) (the Site, together with the Phlexswim App, collectively, the “Services”). The Phlex Services are subject to the following Terms of Services Agreement (as amended from time to time, the “Agreement”). This Agreement further incorporates the Phlex Shipping Policy, and the Phlex Returns & Warranty Policy by reference. Please note: we collect, store, and use personal data collected from you in accordance with our Privacy Policy located at https://phlexswim.com/pages/privacy/.

IMPORTANT NOTICE PLEASE READ

BY ACCESSING OR USING THE SERVICES IN ANY WAY, YOU AGREE TO AND ARE BOUND BY THIS AGREEMENT, AND IF YOU DO NOT ACCEPT ANY OF THE TERMS OF THIS AGREEMENT AND/OR YOU DO NOT MEET OR COMPLY WITH THEIR PROVISIONS, YOU MAY NOT USE THE SERVICES.
YOUR USE OF THE SERVICES IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 10 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE CAREFULLY REVIEW SECTION 10 OF THIS AGREEMENT FOR MORE INFORMATION.
IF YOU ARE UNDER 13 YEARS OF AGE, YOU ARE NOT AUTHORIZED TO USE THE SERVICES, WITH OR WITHOUT REGISTERING. IN ADDITION, IF YOU ARE UNDER 18 YEARS OLD, YOU MAY USE THE SERVICES, WITH OR WITHOUT REGISTERING, ONLY WITH THE APPROVAL OF YOUR PARENT OR GUARDIAN.

1. OUR SERVICES

1.1 Phlex’s Rights in and to Phlex Technology. Our Services, our databases, the designs of each of the foregoing (the “Phlex Technology”), and any and all intellectual property rights in the foregoing shall at all times remain the exclusive property of Phlex and its third-party licensors. The Phlex Technology is confidential information of Phlex. Any third-party software included in our Services is licensed subject to the additional terms of the applicable third-party license. You are not acquiring any rights in or to the Phlex Technology other than a non-exclusive right to access and use our Services solely in accordance with the term of this Agreement.

1.2 Grant of License. On the condition that you comply with all your obligations under this Agreement, and subject to additional terms of any third-party licenses applicable to third-party software included in our Services, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use our Services solely for your personal use and consumption. Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. Full use of our Services requires compatible Phlex Products and may also require Internet access, GPS via your mobile device, and certain software, which may require periodic updates, and may be affected by the performance of these factors. The Services are not a guaranteed part of any third party Product or service offering, and no purchase or obtaining of any third party product or service shall be constructed to represent or guarantee you access to our Services. We reserve all rights not otherwise expressly granted by this Agreement.

1.3 Modification. We may discontinue or alter any aspect of our Services, restrict the time our Services are available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to our Services without prior notice or liability to you. Your only remedy is to discontinue using our Services if you do not want a modification we make to our Services.

1.4 Removal of Access. Your access to our Services is provided on a temporary basis with no guarantee for future availability. You agree that we may immediately suspend or terminate your access to our Services or any part thereof. Cause for such measures include, without limitation: (1) breach or violation of this Agreement or other incorporated agreements or guidelines; (2) discontinuance or material modification to our Services; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.

1.5 Location-Based Services. Where our Services collect location-based information, our Services may do so on an anonymized basis for the improvement of our Services. You hereby consent to our Services’ use of anonymized location based services information collected from users. Where the location-based information is personally identifiable our Services will give you options to manage your disclosure of this information within our Services. Depending on the functionalities available on your mobile device, you may benefit from advanced options to manage the location-based information.

1.6 Fees. To the extent our Services or any portion thereof or the Product is made available for any fee, you will be required to select a payment plan and provide Phlex information regarding your credit card or other payment instrument. You represent and warrant to Phlex that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Phlex the amount that is specified in the payment plan in accordance with the terms of such plan and this Agreement. You hereby authorize Phlex to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Phlex know within sixty (60) days after the date that Phlex invoices you. We reserve the right to change Phlex’s prices. If Phlex does change prices, Phlex may provide notice of the change on the Site, on the Social Networking Services, or in email to you, at Phlex’s option. Your continued use of our Services after the price change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Phlex’s net income.

2. OUR PRODUCTS

2.1 Orders. When a Phlex Product (such as the Phlex EDGETM) (“Product”) is offered for sale as part of our Services, Phlex may accept your offer to purchase Products subject to this Agreement in accordance with conditions stated in Section 2.2, below. Phlex reserves the right to cancel or refuse any order for any reason at any time prior to shipment, including after an order has been submitted, whether or not the order has been confirmed. We may attempt to contact you if all or a portion of your order is cancelled, or if additional information is needed to complete and accept your order. Products may be made available for reservation and pre-order via our Services. If you place a reservation and pre-order for a Product that is not yet available for sale, Phlex will charge your credit card for the cost of the Product plus any applicable charges for taxes and shipping, and will ship you the Product once it is available.

2.2 Availability, Pricing, Taxes. All Products offered via our Services are subject to availability. Prices for the Products are subject to change without notice at any time. To purchase a Product, you will be required to provide Phlex information regarding your credit card or other payment instrument. You represent and warrant to Phlex that such information is true and that you are authorized to use the payment instrument. You hereby authorize Phlex to bill your payment instrument in accordance with the Product you are purchasing. You shall be responsible for all taxes and duties associated with Products other than U.S. taxes based on Phlex’s net income.

2.3 Resale and Title Transfer. Purchases of Products via our Services are intended for end users only, and are not authorized for resale. Title for Products purchased from our Services passes to the purchaser at the time of delivery by Phlex to the freight carrier, but Phlex and/or the freight carrier will be responsible for any Product loss or damage that occurs when the Product is in transit to you.

2.4 Shipping and Delivery. Prices for the Products may not include shipping costs. The estimated arrival or delivery date is not a guaranteed delivery date for your order. Please review our Shipping Policy for more details about Product shipping and delivery. You are responsible for complying with all applicable laws and regulations of the country for which the Product is destined. We are not liable or responsible if you break any such law.

2.5 Returns and Limited Warranty. Please review our Returns and Limited Warranty Policy for more details.

2.6 Disclaimer. While our Products are state of the art, there are some circumstances that can influence the results obtained, these include but are not limited to, the user's physical characteristics, the fit of the device and the type and intensity of the exercise routine or activity. Our Products are not intended to diagnose, treat, cure, or prevent any disease. Our Products have a heart rate tracking feature that may pose risks to users with certain health conditions. Consult your doctor prior to use if you (1) have a medical or heart condition, (2) are taking photosensitive medicine, (3) have epilepsy or are sensitive to flashing lights, (4) have reduced circulation or bruise easily, or (5) have a musculoskeletal disorder. If you experience a medical emergency, stop using our Product and consult with a medical professional immediately. We are not responsible for any health problems that may result from your use of our Product or other heart rate monitor. If you use our Product, you agree that you do so at your own risk.

3. YOUR ACCOUNT

3.1 Your Registration Obligations. Access to our Services requires you to be registered with us via a Phlex-generated registration form. This form will require you to provide certain requested information (including personal information). At such time, you will be provided with an account and login information including a username and password to successfully complete the registration process. If you choose to register for our Services, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Service’s registration form. For more information about our collection of personal data about you in connection with account registration on our Services, please review our Privacy Policy here: https://phlexswim.com/pages/privacy/.

3.2 Member Account, Password and Security. You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You must provide accurate and complete information and keep your account information updated. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.

3.3 Social Networks. You may have the option to register with Phlex using your Facebook or other third party services (“Social Networking Services”) credentials or otherwise registering in order to access and use certain features of our Services. By logging in or directly integrating these Social Networking Services into the Service, we make your online experiences richer and more personalized. To take advantage of these features and capabilities, we may ask you to authenticate, register for or log into Social Networking Services on the websites of their respective providers. For more information about the implications of activating these Social Networking Services and Phlex’s use, storage and disclosure of information related to you and your use of such services within Phlex, please see our Privacy Policy. However, please remember that the manner in which Social Networking Services use, store and disclose your information is governed solely by the policies of such third parties, and Phlex shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within the Service.

4. CONTENT AND MATERIALS ON THE SERVICES

4.1 Phlex Content. The Services may include or provide access to information, software, photos, videos, text, graphics, music, sounds, and other material or information provided by us or third parties (collectively, the “Phlex Content”) that are protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws. You understand and agree that these rights in any Phlex Content are valid and protected in all forms, media, and technologies existing now or developed in the future. You may not obscure or remove any proprietary rights notices contained in or on the Phlex Content.

4.2 Other Content. The Services include features that involve information that you upload, submit, store, or send through our Services (“User Content”). By submitting User Content to our Services, you grant a transferable, nonexclusive, worldwide, perpetual, irrevocable, royalty-free right and license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense, and create derivative works and compilations incorporating User Content to Phlex to provide our Services and for any other legal purpose of Phlex’s choosing. We reserve the right to remove User Content or Phlex Content from our Services at any time and for any reason without notification to you. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, USER CONTENT THAT YOU POST OR PROVIDE THROUGH THE SERVICES. THE RESULTS OF ANY ACTIONS YOU TAKE BASED USER CONTENT, PHLEX CONTENT, OR OTHER CONTENT YOU FIND ON THE SERVICES ARE SOLELY YOUR RESPONSIBILITY. Under no circumstances will we be liable in any way for User Content or for any loss or damage of any kind incurred as a result of the transmission of any of User Content through our Services.

4.3 User Content Restrictions. You may not upload, post, or transmit any User Content that: (1) would violate or infringe the proprietary, privacy, publicity, or intellectual property rights of Phlex or any third party; (2) is obscene, defamatory, threatening, harassing, abusive, libelous, hateful, or harmful to any other person or entity; (3) violates any applicable law, statute, ordinance, or regulation; (4) puts in jeopardy the security of your account, Phlex, or our Services; or (5) promotes or displays any of the following content: (a) pornography; (b) violence; (c) racial intolerance or advocacy against any individual, group, or organization; (d) profanity; (e) hacking or cracking; (f) illicit drugs and drug paraphernalia; (g) sale of alcohol, tobacco, or tobacco-related products; or (h) the sale of weapons or ammunition. We reserve the right, but have no obligation, to pre-screen, review, flag, filter, modify, refuse, and remove any and all User Content from the Service. You understand and expressly acknowledge that by using our Services you may be exposed to content that you find offensive, indecent, or objectionable and that we will not be liable to you or any other person or entity for your consumption of any content on our Services.

4.4 No Responsibility. We cannot and do not assume any responsibility for your use or misuse of Phlex Content or any other information transmitted, monitored, stored, or received while using our Services. We reserve the right to amend or delete any Phlex Content (along with the right to terminate or restrict use of or access to our Services) that in our sole discretion violates any of the above. By providing User Content via our Services, you further understand and agree that you do so at your own risk and that we are not responsible for the damage or loss of any such User Content. You agree that we are not liable for any legal violation caused by your use or misuse of Phlex Content or other information transmitted, monitored, stored, or received while using our Services.

4.5 Feedback. We welcome your comments, feedback, information, or materials regarding our Services or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.

4.6 Links; Third Party Materials. The Services may include links to other websites or resources on the Internet (collectively, “Third Party Materials”). Because we have no control over Third Party Materials, you acknowledge and agree that we are not responsible for the availability of such materials, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such Third Party Materials or for any privacy or other practices of the third parties operating those websites or providing such materials. You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, in connection with, resulting from your use of or reliance on any such Third Party Materials available on or through any such website or resource. We strongly encourage you to review any separate terms of use and privacy policies governing use of these third party websites and Third Party Materials.

5. ACCESS THROUGH MOBILE DEVICES

5.1 Mobile Use. Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using our Services on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using our Services, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.

5.2 Additional Terms Applicable on the Android Market/Google Play. Phlex and you both agree and acknowledge that neither Google Inc., nor any of its subsidiaries or affiliates (“Google”), are a party to this Agreement, and you will look to Phlex for any recourse, and not Google. You agree to be bound by the then-current Android Market Terms of Services as found on Google’s website: (http://www.google.com/mobile/android/market-tos.html) and the Google Play Terms of Services (located at https://play.google.com/about/play-terms.html). You acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to our Services. To the extent there is a conflict between any of the terms contained herein and those set forth in either the Android Market Terms of Services or Google Play Terms of Service, the Android Market Terms of Services or Google Play Terms of Services, whichever is applicable, will prevail and govern.

5.3 Additional Terms Applicable to iOS Devices. Phlex and you both agree and acknowledge that neither Apple Inc., nor any of its subsidiaries or affiliates (“Apple”), are a party to this Agreement, and you will look to Phlex for any recourse, and not Apple. You agree to be bound by the then-current Apple Media Services Terms and Conditions as found on Apple’s website: https://www.apple.com/ca/legal/internet-services/itunes/ca/terms.html. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to our Services. To the extent there is a conflict between any of the terms contained herein and those set forth in the Apple Media Services Terms and Conditions, the Apple Media Services Terms and Conditions will prevail and govern.

6. INDEMNITY AND RELEASE

6.1 General. You agree to defend, indemnify, and hold harmless Phlex, our officers, members, managers, employees, and agents from and against any and all claims, liabilities, damages, losses, demands, or expenses, including attorney’s fees and costs and expenses, arising out of or in any way connected with: (1) your use of our Services or Phlex Technology, (2) your violation of this Agreement, (3) any User Content you post or provide through our Services, (4) your violation of any law or the rights of any third party, and (5) your negligence or willful misconduct.

6.2 For California Residents. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

7. MEDICAL DISCLAIMER

7.1 Services Not a Substitute for Medical Advice. Content found on our Services, including Phlex Content, is for informational purposes only and is not intended to replace the relationship between you and your physician or other medical provider. We are not a licensed medical care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise on a medical condition. You should always consult a physician before starting a fitness program, changing your diet or if you have any questions regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on or through our Services. You should consult with your physician before following any training instructions you receive through our Services or participating in any fitness class or event using our Services.

7.2 No Responsibility for Exercise Program. Not all exercises or activities described on our Services are suitable for everyone. You should understand that when participating in any exercise or exercise program, there is the possibility of physical injury and/or death. If you think you may have a medical emergency, call your physician or 911 immediately. If you feel discomfort or pain, immediately stop the activity causing such discomfort or pain. People who have Type 1 diabetes or other adverse medical or nutritional conditions should not use our Services unless such use is directed and closely monitored by a physician. By using our Services, you represent that you have received consent from your physician to participate in the programs, workouts, and exercises described on our Services. We are not responsible for any health problems that may result from training programs, Products, or events you learn about through our Services or fitness classes you take through our Services. If you engage in any exercise program you receive or learn about through our Services you agree that you do so at your own risk and are voluntarily participating in these activities.

8. DISCLAIMER OF WARRANTIES

YOUR USE OF OUR PRODUCTS AND SERVICES IS AT YOUR SOLE RISK. UNLESS EXPLICITLY NOTED IN A WARRANTY PROVIDED BY PHLEX, OUR PRODUCTS AND OUR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PHLEX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

PHLEX MAKES NO WARRANTY THAT (1) OUR PRODUCT OR OUR SERVICES WILL MEET YOUR REQUIREMENTS, (2) OUR PRODUCTS OR OUR SERVICES OR USE THEREOF WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (3) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR PRODUCT OR OUR SERVICE WILL BE ACCURATE OR RELIABLE, (4) THE QUALITY OF OUR PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, (5) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED, OR (6) THAT OUR SERVICES AND ANY CONTENT OR INFORMATION FOUND ON THE SERVICES WILL BE ERROR OR VIRUS-FREE.
ANY CONTENT OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH THE SERVICES OR ANY PRODUCT WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE A USER FROM NEW JERSEY, THE SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

9. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT PHLEX WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PHLEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (1) THE USE OR THE INABILITY TO USE OUR SERVICES OR OUR PRODUCTS; (2) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE OR REGARDING A PRODUCT OR SERVICE; OR (5) ANY OTHER MATTER RELATING TO OUR PRODUCTS OR SERVICES. IN NO EVENT WILL PHLEX’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID PHLEX IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PRODUCT, PORTION OF THE SERVICE OR WITH THIS AGREEMENT OR TERMS OF SALE, YOUR SOLE AND EXCLUSIVE REMEDY UNLESS OTHERWISE EXPLICITLY SET FORTH BY PHLEX IS TO DISCONTINUE USE OF THE APPLICABLE PRODUCT OR SERVICE.

10. DISPUTE RESOLUTION AND GOVERNING LAW

10.1 Governing Law. This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of California, without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in the State of California, and you hereby consent to the exclusive jurisdiction and venue of the state or federal courts in Santa Clara County, California. You irrevocably submit and consent to the personal jurisdiction of such courts.

10.2 Dispute Resolution. To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to our Services or Phlex Technology, this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute ourselves, you and Phlex agree to resolve such Dispute through confidential binding arbitration as set forth below.

10.3 Binding Arbitration. If you and Phlex are unable to resolve a Dispute through informal negotiations, either you or Phlex may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and Phlex may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

10.4 Waiver of Rights. You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have under Article 13 of the State Bar Act to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available.

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.

11. MISCELLANEOUS


11.1 Independent Contractors. You understand and expressly agree that you and Phlex are independent contractors and not agents or employees of the other party. Neither you nor Phlex has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.

11.2 Consent To Do Business Electronically. We use and rely upon electronic records and electronic signatures for the execution and delivery of this Agreement and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with this Agreement and in performing our obligations and exercising our rights under this Agreement. Neither you nor Phlex will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.

11.3 Termination. You agree that Phlex, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of our Services and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Phlex believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Phlex will not be liable to you or any third party for any termination of your access to the Service. If you wish to terminate your account, you may do so by contacting us at contactus@phlexswim.com.

11.4 Trademarks and Logos. The Phlex name and logos are trademarks and service marks of Phlex (collectively the “Phlex Trademarks”). Other Phlex, Product, and service names and logos used and displayed via our Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Phlex. Nothing in this Terms of Services or our Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Phlex Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Phlex Trademarks will inure to our exclusive benefit.

11.5 Digital Millennium Copyright Act. Phlex’s designated Copyright Agent to receive notifications of claimed infringement is Ryan Rosenbaum Please send notifications to: rrosenbaum@phlex.us (Subject line: “DMCA Takedown Request”). For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Phlex customer service contactus@phlexswim.com.

11.6 Entire Agreement. This Agreement constitute the entire agreement between you and Phlex with respect to the subject matter hereof and supersede all prior agreements, both oral and written, with respect to the subject matter hereof. Our failure to enforce any provision of this Agreement will not be deemed to be a waiver of our right to enforce them. If any term or provision of this Agreement will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of this Agreement. We may revise and update this Agreement from time to time, and will post the updated Agreement to our Site.

UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING.

Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of our Services will constitute your agreement to any new provisions within the revised Agreement.

11.7 Equitable Relief. You agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement.

11.8 Assignment. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under this Agreement, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of this Agreement. We may assign this Agreement or delegate or subcontract our obligations under this Agreement at any time.

11.9 Force Majeure. Neither you nor Phlex will be liable for inadequate performance to the extent caused by a condition (natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond either party’s reasonable control.

11.10 Survival. The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, disclaimers, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.

11.11 Contact Us. Please contact us at contactus@phlexswim.com to report any violations of this Agreement or to pose any questions regarding this Terms of Services or the Service.