Last updated on June 2nd, 2016
Welcome to Phil, an online prescription management and delivery platform made available by Phil, Inc. (“Phil,” “we,” “us” or “our”), that you can access through our mobile device application (“App”). Please read these Terms of Service (the “Terms”) carefully because they serve as an agreement between you and Phil. To make these Terms easier to read, our services and App are collectively called the “Services.”
Phil Is a Prescription Management Platform
Phil enables you to place an order for one or more of your prescription medication needs (“Order“) and acts as a prescription management platform only. Each medication that you order through Phil must be based on a valid prescription issued for a legitimate medical purpose by a medical professional acting in the usual course of his/her professional practice. The Services are not intended to be a substitute for professional medical advice, diagnosis or treatment, and do not constitute medical or other professional advice. Phil does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Services or by any other electronic means. Reliance on any information provided by Phil is solely at your own risk. The information provided through Phil’s Services is designed to support, not replace, the relationship that exists between patient/site-visitor and his/her physician. Never disregard professional medical advice or delay in seeking it because of something you have read or seen on our Services.
Order Fulfillment by Pharmacy
When you place an Order through Phil, we work with a pharmacy that processes your Order and fills your prescriptions (each, a “Pharmacy”). You acknowledge and agree that Phil is not a pharmacy and that we don’t fill prescriptions ourselves nor do we manufacture, prepare, dispense or provide medications of any kind. You also acknowledge and agree that, although we may select certain pharmacies to work with based on various metrics we apply, our decision to work with a specific pharmacy should not be deemed as an endorsement of, or a warranty regarding the quality of services provided by, such pharmacy. If, for any reason, you aren’t satisfied with the manner in which a Pharmacy processed your Order, you agree to address this issue with the Pharmacy directly.
You also acknowledge and agree that we do not provide any medical advice, opinion, diagnosis or treatment, and that that no pharmacy-patient relationship or doctor-patient relationship is, or will be, established between Phil and you as a result of your use of the Services or otherwise. You should check product information (including package inserts) regarding dosages, precautions, warnings, interactions and contraindications before administering or using any medications. If you have any questions regarding your prescriptions, you should consult your healthcare professional or pharmacist, whose contact information may be listed on the prescription, the packaging of your prescription medicine or under your Account.
IF YOU ARE HAVING A MEDICAL EMERGENCY, DO NOT USE OUR SERVICES – CALL 911.
Authorization to Transfer Prescription
In case your prescription was transferred to or originally filled by a non-participating pharmacy (not within Phil’s network) Phil may transfer your prescription to its participating pharmacy. By using Phil’s services, you authorize Phil to transfer your prescription to any participating community pharmacy. Phil has the sole discretion to determine which participating pharmacy fills your prescription. Additionally, in order to provide you the best possible quality of service, you authorize Phil to transfer your prescription from one Phil partner pharmacy to another.
Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, please do not use the Services.
By using the Services, you agree and consent that Phil may use the personal information you provide via the Services to process your Order and fill your prescription(s). If the Pharmacy initially chosen by the Services is unable to fill your prescription(s), you expressly agree that Phil may transfer your personal information to another Pharmacy to do so.
By using the Services, you agree that Phil may use your email to communicate with you regarding services, billing, and advertising. You understand that email communication has risk of third-party interception and maybe transmitted to unintended parties. You expressly agree to hold Phil harmless for any damages associated with the security breach of your email or erroneous transmission.
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “ARBITRATION” SECTION BELOW, AND EXCEPT IF YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION “SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND Phil WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Changes to Terms or Services
We may modify the Terms from time to time. If we do so, we’ll let you know either by posting the modified Terms on the App or through other communications to you. It’s important that you review the modified Terms because if you continue to use the Services after we’ve let you know that the Terms have been modified, you are indicating to us that you agree to be bound by the modified Terms. If you don’t want to be bound by the modified Terms then you should not use the Services any more. We’re always striving to improve the Services and, because our Services are evolving over time, we may change or discontinue all or any part of the Services. This change may happen at any time and without notice.
The health-related content you may find in the Services (“Health-related Content”) is broad in nature and in scope, describes only general principles of health care, and is neither specific instructions for individual patients nor appropriate or relevant to your personal situation. Health-related Content is not intended to be used to diagnose, treat, cure or prevent diseases or as a self-medication guide or as a substitute for consulting with your health professional or pharmacist.
Who May Use the Phil Services
You may use the Services only if you are 18 years or older, are capable of forming a binding contract with Phil and are not barred from using the Services under applicable law.
Registration and Your Information
If you want to use certain features of the Services you’ll have to create an account (“Account”) via the App. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t provide us with accurate information (or do not update the information to keep it accurate, complete and up-to-date), we may suspend or terminate your Account. You agree to keep your Account password confidential and you’ll let us know immediately if there is any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them so please safeguard your Account password and other related information.
Additional Users of the Services
You may add your family members as users of the Services on the following conditions:
Unless the additional user is under 18, by adding this patient you acknowledge that you are acting as this patient's representative and have an express authorization from the patient to enter his/her personal information and have medications delivered to the address entered.
If the additional user is under the age of 18, you acknowledge that you are a parent or a guardian of the user. You recognize and acknowledge that there are certain risks of physical injury in connection with the administering of medication to a minor child. Such risks include, but are not limited to, failing to properly administer the medication, failing to observe side effects, failing to assess and/or recognize an adverse reaction, failing to assess and/or recognize a medical emergency, and failing to recognize the need to summon emergency medical services. You hereby fully release or discharge Phil and dispensing pharmacy from any and all claims from injuries, damages and losses your minor child may have, arising out of, connected with, incidental to, or in any way associated with the administering of medication.
Delivery of Your Order
If no one is present at your delivery address at the time of the delivery to receive your Order, the courier may leave your Order at your door or other secure location in accordance with the general guidelines issued by the delivery services, if the courier believes it is reasonable to do so.
New User Discount
We realize you have many options of pharmacies to fulfill your prescriptions and we want you to be comfortable with Phil. On your first order we will pay on your behalf up to $20.00 for any copay charged by your health insurance provider, or if not covered by insurance, we will discount up to $20.00 off the cash price of your prescription. We will also cover any delivery fees. This offer applies only to first time customers. If a first time customer has multiple prescriptions, the aforementioned discount will apply to to just one prescription selected by Phil Inc. at its discretion. Offer cannot be applied retroactively. ANY AND ALL DISCOUNTS OFFERED CANNOT BE APPLIED TO INDIVIDUALS COVERED BY ANY GOVERNMENT-SPONSORED INSURANCE PLANS. If you are not 100% satisfied with our Services, we will switch you back to your current pharmacy.
CoPay Price Match Guarantee
If your prescription is currently being filled by a pharmacy prior to ordering through Phil, we guarantee that you will pay the same or lower copay that you pay now. Please note that in certain circumstances the copay match guarantee will be excluded. For example, your insurance provider may prohibit us from dispensing a 90-day supply of medication. If you had been receiving a 90-day supply from your insurance mail order provider at a $15 copay and your insurance provider requires a $10 copay for a 30-day supply, we would be limited to offering you the 30-day supply at the $10 copay. Therefore, the cost would be $30 for the equivalent 90-day supply. Additionally, we cannot guarantee copay pricing on new prescriptions as the copay will be determined by your insurance provider. In the event we are unable to offer a matching or lower copay, we will contact you with the higher copay amount. You may then choose to approve or cancel the order. An example where a higher copay may apply would be where you filled your prescription in December and then switched to Phil in January to fill your prescription and your insurance plan reset your deductible at the beginning of the year. Such an event could affect your copay.
Feedback to the Phil Services
Your opinion matters to us! We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at email@example.com. If you provide us any Feedback, you agree that we may use, copy, modify, create derivative works of and otherwise exploit the Feedback for any purpose.
Payment for Your Order through Phil
When you submit an Order through Phil, the Pharmacy selected by the Services will calculate the total Order price, which will be based on: (i) the actual cash price charged by the Pharmacy for each medication, if you do not have health insurance coverage for prescription medications; (ii) a copay amount that you are required to pay for medications, if you do have health insurance coverage for prescription medications; and (iii) any applicable delivery and handling fee that we may charge for delivery of the medication to the address specified in your Order. After the Pharmacy determines the total Order price, we will send you an email to notify you of the Order Price. If you do not confirm the Order (by clicking the “[Approve]” button in the email) within seventy-two (72) hours of the time the email was sent, your Order will be canceled automatically. We will charge you only when you confirm the Order within the seventy-two (72) hour period. For recurring Orders for medications that you take on an ongoing basis, if there is no change in the price or copay amount for the recurring Orders, we will process such Orders and charge you for the same price without sending you additional email for confirmation. If the price for a recurring Order has increased, we will send you another email to confirm the higher price or copay amount. If the price or copay amount for a recurring Order has decreased, we will charge you the lower price or copay amount without explicitly notifying you of the decrease.
If you place an Order via the Services, you agree (i) that Phil or Phil’s third party payment processing service provider may process and/or charge your credit card (and on a recurring basis for recurring medications) for verification, pre-authorization and payment purposes and (ii) to bear any additional charges that your bank or other financial service provider may levy on you as well as any fees or taxes that may apply to you. You’ll receive a confirmation by email once the Pharmacy has completed processing your Order. If you have any concerns or objections regarding any charges, you agree to raise them first with Phil and you agree not to cancel or reject any credit card charges unless you have made a reasonable attempt at resolving the matter directly with Phil or the Pharmacy.
By pressing the Approve button in the email listing the charges or in the iOS or Android app, you the Service to submit the amount listed for payment on your credit card and consent to the storage of your credit card information. You certify that you are an authorized user of this credit card and that you will not dispute the payment with the credit card company so long as the transaction corresponds to the terms indicated on the payment page and in the Terms. You acknowledge that if any charges to the credit card are declined or charge backs are claimed against any outstanding amount, you will still be liable for payment pursuant to the Terms.
It is important that you carefully review any order or renewal for recurring prescriptions that you place. Once the medication has been shipped it cannot be returned and we offer no refund.
Cancellation of Your Prescription or Refill
You may remove a prescription from your Account or cancel a refill for a particular prescription at any time through the Services before an Order is placed for that prescription.
Proprietary Rights and License
Phil and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by laws of the United States and any applicable jurisdictions. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
Rights Granted by Phil
Subject to your compliance with these Terms, Phil grants you a limited, revocable, non-exclusive, non-transferable and non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control, to run such copy of the App, and to access and use the Services, solely in connection with your permitted use of the Services and solely for your own personal and non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Phil reserves all rights in and to the Services not expressly granted to you under these Terms. Phil reserves all rights in and to the App not expressly granted to you under these Terms. The App is licensed, not sold. The license confers no title to or ownership in the App and should not be construed as a sale of any rights in or to the App.
You agree not to do any of the following:
- Use, display, mirror or frame the Services, or any individual element within the Services, Phil’s names, any Phil trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Phil’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Phil’s computer systems, or the technical delivery systems of Phil’s providers;
- Attempt to probe, scan, or test the vulnerability of any Phil system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Phil or any of Phil’s providers or any other third party (including another user) to protect the Services;
- Attempt to access or search the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Phil or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Phil trademark, logo, URL or product name without Phil’s express written consent;
- Use the Services for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing;
- YOU AGREE NOT TO SUBMIT ANY CONTROLLED SUBSTANCE PRESCRIPTIONS THROUGH THE SERVICES. A yearly-updated list of controlled substances can be accessed here.
Although we’re not obligated to monitor access to or use of the Services, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
When you send emails or other electronic messages to us or in connection with the Services, you are communicating with us electronically and consent to our review and analysis of such messages and to receive return communications, if any, from us electronically. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
We may terminate your access to and use of the Services or deactivate or cancel your Account, at our sole discretion with or without notice, for any reason or no reason, and without liability to you. You may cancel your Account at any time by sending an email to us at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions. Upon any termination, discontinuation or cancellation of the Services or your Account by you or us, you will continue to be obligated to pay all amounts owing under these Terms which are due and payable prior to such termination, discontinuation or cancellation.
The Services are provided “AS IS” AND “AS AVAILABLE” without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PHIL MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE ERROR FREE. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY HEALTH-RELATED CONTENT OBTAINED AS A RESULT OF YOUR USE OF THE SERVICES.
IT IS SOLELY YOUR RESPONSIBILITY TO (1) ENSURE THAT YOUR ORDER WAS PROPERLY PROCESSED AND THAT YOU RECEIVED THE CORRECT MEDICATIONS (INCLUDING THE CORRECT DOSAGE(S) THEREOF), (2) CONSUME THE PROPER DOSAGE(S) OF YOUR MEDICATION(S), AND (3) STORE ALL MEDICATIONS PROPERLY AND IN ACCORDANCE WITH THE GUIDELINES PROVIDED BY THE PHARMACY AND/OR APPLICABLE MEDICATION MANUFACTURER(S).
PHIL EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING A PHARMACY’S AND ITS PERSONNEL’S PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK, OR ACCURACY IN FILLING YOUR PRESCRIPTION(S), AND ASSUMES NO RESPONSIBILITY FOR A PHARMACY’S COMPLIANCE WITH ANY APPLICABLE LAWS AND REGULATIONS. WITHOUT LIMITING THE FOREGOING, PHIL EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY PRESCRIPTIONS INCORRECTLY FILLED BY A PHARMACY, WHETHER AS A RESULT OF INACCURATE INFORMATION PROVIDED BY YOU OR OTHERWISE, ANY CANCELLED OR OTHERWISE UNFILLED PRESCRIPTIONS (OR ANY INJURY OR DEATH RESULTING THEREFROM), OR ANY ACT OR OMISSION OF ANY PHARMACY.
Beta Service Disclaimer
You acknowledge that: (i) the Services (or portions of the Services) made available under these Terms may be in a beta development stage or may have otherwise not been made commercially available by Phil; (ii) the Services may not operate properly, be in final form or fully functional; (iii) the Services may contain errors, design flaws or other problems; (iv) Phil has no obligation to release a commercial version of the Services; and (v) Phil has the right unilaterally to abandon development of the Services, at any time and without any obligation or liability to you.
You will indemnify, defend and hold harmless Phil and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services, or (ii) your violation of these Terms.
Disclaimer, Exclusions and Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES, AND ANY CONTACT YOU HAVE WITH PHARMACIES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU.
NEITHER PHIL NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, PROVIDING OR DELIVERING THE SERVICES, INCLUDING WITHOUT LIMITATION ANY HEALTH-RELATED CONTENT, WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, OR FROM ANY COMMUNICATIONS OR INTERACTIONS WITH ANY PHARMACIES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PHIL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL PHIL’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING WITHOUT LIMITATION ANY HEALTH-RELATED CONTENT, OR FROM ANY COMMUNICATIONS OR INTERACTIONS WITH ANY PHARMACIES, EXCEED THE AMOUNTS YOU HAVE PAID TO PHIL FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS UNDER THESE TERMS, AS APPLICABLE. PHIL AND ITS AUTHORIZED AGENTS AND CONTRACTORS SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF OR RESULTING, IN WHOLE OR IN PART, FROM THEIR ACTS OR OMISSIONS, INCLUDING WITHOUT LIMITATION IN PROCURING, COMPILING OR DELIVERING ANY MEDICATIONS (OR ANY RELATED INFORMATION) TO YOU. THE DISCLAIMER, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PHIL AND YOU.
Copyright Infringement Claims: Notice and Take-Down Procedures
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Services infringe your rights under U.S. copyright law, you (or your agent) may send to Phil a written notice by mail or e-mail, requesting that Phil remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Phil’ a counter-notice. Notices and counter-notices must be sent in writing and meet the then-current statutory requirements imposed by the DMCA (see http://www.copyright.gov/ for details), which, with respect to notices of infringement, currently include, among other requirements, the following:
- Sufficient information identifying the copyrighted work(s) believed to be infringed.
- Sufficient information identifying the allegedly infringing material(s) and the location of such material(s) in order to permit Phil to locate such material(s).
- A statement from the owner (or the owner’s authorized representative) of the copyrighted work(s) believed to be infringed that such owner or authorized representative has a good faith belief that the allegedly infringing materials are used in a manner not authorized by the copyright owner, its agent, or the law.
- Contact information for the complaining party, including a mailing address, a telephone number and, if available, an email address.
- A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the owner (or the owner’s authorized representative) of the copyrighted work(s) believed to be infringed.
Notices and counter-notices must be sent in writing to Phil’s DMCA agent as follows:
DMCA Agent, Legal Department
Mail: Phil Inc., 391 Sutter St. Suite 800, San Francisco, CA 94108
Telephone: (855) 977-0975
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Phil agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Phil with written notice of your desire to do so by email or regular mail at email@example.com, (855) 977-0975, 391 Sutter St. Suite 800, San Francisco, CA 94107, within thirty (30) days following the date you first accept these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Phil with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Phil with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Client with an Arbitration Opt-out Notice, you acknowledge and agree that you and Phil are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Phil otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
You agree that any claim you may have arising out of, or related to your use of our Services must be filed within one (1) year after such claim arose; otherwise, your claim is permanently barred.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration form and a separate Demand for Arbitration for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Phil otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Phil submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Phil will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Phil will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Phil changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Phil’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Phil in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Phil and you regarding the Services and Orders, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Phil and you regarding the Services and Orders. If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Phil’s prior written consent. Any attempt by you to assign or transfer these Terms, without Phil’s consent, will be null and of no effect. Phil may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Phil under these Terms, including those regarding modifications to these Terms, will be given by Phil: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. These Terms apply only to Phil and you. These Terms are not intended to, and shall not, create any third party beneficiary rights, except as expressly provided in these Terms.
Phil’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Phil. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions, please contact us at: