THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE SUBMIT BUTTON ON THE SITE AS OF THE EFFECTIVE DATE.

BY CLICKING ON THE SUBMIT BUTTON ON THE SITE OR BY ACCESSING OR USING THE SERVICES YOU

  • ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT;
  • REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION;
  • CONSENT TO PHOENIX CONTACTING YOU ABOUT OUR PRODUCTS AND SERVICES, AS WELL AS OTHER THAT MAY BE OF INTEREST TO YOU; AND
  • ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

FirmGuard® Order Form

Please read the Order Form and Terms and Conditions that Follow.

Customer The Company named in the FirmGuard Sign Up form available online at the Site
Customer Contact The individual whose name, associated email address, and phone number is entered with the Customer in the FirmGuard Sign Up form.
Effective Date May 31, 2024
Service Term Thirty (30) days from the Effective Date, unless earlier terminated as provided in the Agreement. The Service Term shall not automatically renew for any additional successive periods.
Fees No fees or payment will be due from Customer by Phoenix for the Services during the Service Term.
Services In exchange for having a 30-minute onboarding call with Phoenix and agreeing to install FirmGuard® Software on Customer Hardware (as defined in the Terms and Conditions) that is owned by You, Phoenix grants to You:

(1) access to the Phoenix FirmGuard Services described at https://www.firmguard.com (or any successor website) pursuant to the Terms and Conditions, which may be updated from time to time and include various FirmGuard® modules, and
(2) one SecureCheck Audit.

Failure to have the call or install the Software on at least one Customer Hardware device shall be a material breach of this Agreement by Customer.

The specific FirmGuard modules provided by Phoenix to You shall be in Phoenix’s sole discretion. Access shall include access to the FirmGuard Dashboard, a Customer control platform to manage, configure, enable/disable, monitor, and update firmware on end user devices. In addition to the Customer control platform, software shall be provided for installation and deployment on end user devices for communication with and control by the Customer control platform.
Miscellaneous Any capitalized terms not defined in this Order Form have the meanings set forth in the Terms and Conditions.

Terms and Conditions

PLEASE READ THE TERMS AND CONDITIONS CAREFULLY BEFORE AGREEING TO THESE TERMS AND USING FIRMGUARD

All Services, as defined below, licensed from Phoenix Technologies Inc. (“Phoenix”) by a customer (the “Customer” or “You”) pursuant to an Order Form, as defined below, shall be governed by these terms and conditions (the “Terms and Conditions”), which, together with one or more Order Form(s), shall constitute the entire agreement between the parties (the Terms and Conditions, Order Forms, and any other terms or agreements referenced therein, collectively, the “Agreement”) unless otherwise agreed to in a signed writing.

By submitting the form, you:
(1)  Represent and Warrant that you are located in the United States of America or Canada and have the legal authority to bind your company named above (“Customer”)
(2)  Agree to our Order Form which incorporates your provided information and the Terms and Conditions, and
(3)  Consent to Phoenix contacting you about our products and services, as well as other content that may be of interest to you.

1. SERVICES AND SUPPORT

1.1  Services Generally.
Subject to the terms of this Agreement, Phoenix will provide Customer the Services described at the FirmGuard Sign Up form available online at https://firmguard.com/tmt/ (“Site”) on May 31, 2024 before 7pm Pacific Daylight Time (“Order Form”) entered into by Phoenix and Customer that reference these Terms and Conditions, on the terms and conditions of this Agreement (including, for the avoidance of doubt, the terms and conditions contained in such Order Form) provided that Customer signs up before the deadline listed on the Site (“Services”). PHOENIX SHALL HAVE NO OBLIGATIONS UNDER THIS AGREEMENT TO CUSTOMERS WHO SIGN UP AFTER THE DEADLINE LISTED ON THE SITE UNLESS EXPLICITLY AGREED TO BY PHOENIX IN WRITING. To the extent Customer has chosen particular Services through Phoenix’s self-service functionality within the Services, the “Order Form” shall be comprised of the self-service selections and associated pricing made by Customer using the functionality within the Services, in connection with such self-service selections, in each case with respect to the specific Services offerings for which Customer has subscribed. To the extent provided in an Order Form, Customer may sublicense or otherwise provide the Services to its own downstream customers for their usage solely during the period of time specified in such Order Form, provided that all such usage is subject to the terms and conditions of this Agreement, and provided further that Customer remains responsible and liable for any and all such use. As stated in the Order Form use of the FirmGuard Services requires the proper installation, configuration, and maintenance of certain software specified by Phoenix (the “Software”) on Customer’s (or Customer’s downstream customers) endpoints that Customer intends to manage using the FirmGuard Services (collectively, “Customer Hardware”). Customer hereby acknowledges and agrees that any and all use of the Software by Customer or any of Customer’s downstream customers is subject to the terms and conditions of the End User License Agreement available at https://www.firmguard.com/EULA (or any successor website), (the “EULA”) which is hereby integrated into this Agreement by reference. As between Phoenix and Customer, Customer shall be solely responsible for ensuring than any of Customer’s downstream customers also agree to, and abide by, the terms and conditions of the EULA

1.2 Implementation.  Phoenix will perform certain implementation services if and to the extent expressly set forth in an Order Form signed by an authorized representative of Phoenix, which may consist of tasks such as (i) importing and formatting Customer-provided content (“Customer Content”) into the Services of Software. Each of Phoenix and Customer will fulfill its respective obligations under the Implementation Plan and will cooperate with the other to permit the timely performance thereunder. Phoenix’s obligations under the Implementation Plan are contingent upon Customer’s timely performance of its obligations, Customer’s reasonable cooperation and any assumptions included in the Order Form or otherwise communicated by Phoenix to Customer. All dates and fees under the Implementation Plan are estimates made for project planning purposes only. Any changes to the scope of the Implementation Plan shall become effective only upon the execution of a written amendment by authorized representatives of Phoenix and Customer.

1.3 Suspension.  Phoenix may suspend Customer’s access (including all access by any Authorized User) to the Services in whole or in part if Customer or Authorized User breaches this Agreement or if Customer’s or any Authorized User’s actions risk harm to Phoenix or other customers or the security, availability or integrity of the Services. Where practicable, Phoenix will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension, Phoenix will promptly restore Customer’s access to the Services.

2. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES

2.1 Access.  The Services may only be accessed by employees, representatives, or downstream customers (to the extent permitted under an Order Form) of Customer authorized by Customer (“Authorized Users”) who (i) have established a valid password and username (“Credentials”), (ii) have agreed to abide by the terms and conditions of the Acceptable Use Policy at https://www.firmguard.com/AUP (or any successor website), and (iii) have accepted the Phoenix Terms of Service at https://www.firmguard.com/SLA (or any successor website).  Customer shall be solely responsible for: (a) all credentials established by or on behalf of Customer and any Authorized User, (b) verifying the identity of each Authorized User and validating use of Credentials by each Authorized User, and (c) monitoring Authorized User access to the Services to ensure that only those permitted to access and use the Services do so. Customer shall institute contractual, technological and/or functional procedures and processes as necessary to monitor use of Credentials and to protect and require Authorized Users to protect their Credentials. As between Phoenix and Customer, Customer shall assume all responsibility and liability with respect to access and use of the Services by or on behalf of Customer and all Authorized Users, whether or not such access is a result of compromised, lost, or stolen Credentials or Customer Hardware, including ensuring compliance with all of the obligations and restrictions set forth in this Agreement and with applicable law. Customer shall promptly inform Phoenix of any unauthorized use of the Services or breach of this Agreement or applicable law by Customer or any of its Authorized Users.

2.2 Use Restrictions. Neither Customer, nor any Authorized User shall, directly or indirectly, or permit any third party to: (i) reverse engineer, decode, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services; (ii) copy, in whole or in part, the Services or any component thereof; (iii) modify, enhance, translate, combine with other programs, or create derivative works based on the Services; (iv) sublicense, sell, rent, lease, transfer, distribute, or use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party (except as explicitly permitted hereunder); or (v) remove any proprietary notices or labels.  Customer shall not use the Services if and to the extent Customer is legally prohibited to do so. Customer shall not use the Services if Customer is a competitor of Phoenix or for purposes of monitoring the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes.

2.3 Compliance. Customer represents and warrants that Customer will use the Services (and will ensure that use of the Services by or on behalf of Customer and Authorized Users) is in compliance with this Agreement, the Acceptable Use Policy, and all applicable laws, rules and regulations. Customer also represents and warrants that it has all necessary authroizations to install and use the Software on.

2.4 Equipment.  Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and related information, and the like (collectively, “Requisites”).  Customer shall also be responsible for the Requisites in all respects, including maintaining the security of the Requisites.

3.   INFORMATION AND DATA

3.1 Customer Data.  As between Customer and Phoenix, Customer is solely responsible for the accuracy, completeness, validity, authorization for use (including transmission) and integrity of all Customer Data, regardless of form or format.  “Customer Data” is the information provided by or on behalf of Customer or any Authorized Users to Phoenix to enable the provision of the Services (including all information provided by any Customer System through any connection method and all information provided by agents of Customer, including all Employee Data). Customer acknowledges and agrees that (i) Customer will be required to provide certain Customer Data to the Services to enable their operation, and (ii) the Services are designed to act on direction given to it by or on behalf of the Customer, and that Customer is solely responsible for such direction and the results thereof.  Customer represents and warrants that Customer has the right to provide all Customer Data to Phoenix, and has obtained all necessary consent where applicable, including the consent of any applicable agent of Customer (such as an employee), for the Services to capture such data as the Services capture and to perform such actions as the Services may perform.

3.2 License to Customer Data. Customer hereby grants to Phoenix and its relevant service providers a limited, nonexclusive, royalty-free, right and license, to access, store, reproduce, display, handle, perform, transmit, test, modify, process, combine with other data, and otherwise use Customer Data (i) for performance of Phoenix’s obligations and exercise of Phoenix’s rights under this Agreement; and (ii) to create derivatives of such data, solely in de-identified and aggregated form (such derivatives, “Aggregated Data”).  Customer agrees that Phoenix shall own all right, title, and interest in all Aggregated Data and in such improvements and derivative works.

4. INTELLECTUAL PROPERTY IN THE SERVICES

4.1 Services.  Phoenix shall own and retain all right, title and interest in and to (a) the Services and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services, implementation services or support, including any of the foregoing developed by Phoenix to connect to or receive Customer Data from any Customer System, and (c) all intellectual property rights related to any of the foregoing.  Nothing contained herein shall be construed as granting Customer any rights in or to the Services, other than the right to use the Services as expressly stated herein.

4.2 Feedback.  The parties acknowledge and agree that Phoenix may solicit and Customer may provide to Phoenix suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Services (the “Feedback”).  Customer hereby grants to Phoenix a nonexclusive, perpetual, irrevocable, royalty-free, right and license to disclose, use and incorporate the Feedback for any lawful purpose.

5. CONFIDENTIALITY

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party).  Confidential Information of Phoenix includes information regarding features, functionality and performance of the Service.  Confidential Information of Customer includes Customer Data, except that Employee Information is the Confidential Information of Phoenix (consistent with Section 3.2). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information and (iii) to notify the Disclosing Party promptly and in writing of the circumstances surrounding any suspected possession, use or knowledge of any such Confidential Information or any part thereof at any location or by any person or entity other than those authorized by this Agreement.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public without a breach by the Receiving Party of the terms of this Agreement, (b) was in its possession or known by Receiving Party prior to receipt from the Disclosing Party, (c) was rightfully disclosed to Receiving Party without restriction by a third party, or (d) was independently developed by Receiving Party without use of or reference to any Confidential Information of the Disclosing Party.  The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by a court or other governmental authority, provided that the Receiving Party promptly notifies the Disclosing Party of the disclosure requirement and cooperates with the Disclosing Party (at the latter’s expense and at its request) to resist or limit the disclosure.

6. PAYMENT OF FEES

6.1  Fees Generally.  Customer will pay Phoenix the then applicable fees described in the Order Form for the Services and any implementation services in accordance with the terms therein (the “Fees”).All payments shall be made in unrestricted US Dollars, free of discounts due to transfer costs or any other banking expense. If Customer’s use of the Services requires the payment of additional fees (per the terms of this Agreement or as otherwise set forth within the Services), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.  Phoenix reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer.  If Customer believes that Phoenix has billed Customer incorrectly, Customer must provide written notice to Phoenix specifying the alleged issue no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Fees are not refundable. Overdue unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate suspension or termination of the Services.  Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Phoenix’s net income.

6.2 Method of Payment.  Phoenix may use a third party payment service to bill Customer through an online account. By submitting payment account information, Customer grants Phoenix the right to store and process such information with the third party payment service and agrees that Phoenix will not be responsible for any failures of the third party, including any failures to adequately protect such information. The processing of payments will be subject to the terms, conditions and privacy policies of such third party payment service in addition to this Agreement. Phoenix may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Phoenix thirty (30) days after the mailing date of the invoice.

6.3 Fees are Absolute. Customer will pay Phoenix all fees in accordance with the provisions of this Agreement. All amounts due under this Agreement are non-cancelable and are an absolute commitment.

6.4 Audit. During the term of this Agreement and for a period of two years thereafter, Customer agrees that Phoenix may hire an independent accounting firm to audit all relevant books and records for the sole purpose of determining Customer’s compliance with the obligations of this Agreement.  Phoenix shall not conduct such an audit more than once in any twelve (12) month period.  Any such audit will be conducted at Customer’s premises during regular business hours, after reasonable notice, and in a manner that will not unduly interfere with Customer’s normal business practices.  Customer will provide all reasonable assistance and cooperation that Phoenix may request during any audit.  Customer will promptly pay Phoenix the full amount of any underpayment revealed by an audit, and if such amount represents an underpayment of five percent (5%) or more during the audit period, Customer shall promptly reimburse Phoenix for the reasonable cost of such audit. 

6.5 Taxes. All amounts payable to Phoenix under this Agreement are exclusive of any taxes and other charges imposed by any federal, state, local, or other governmental entity (except those taxes due on Phoenix’s net profit).  Customer shall be responsible for, and if necessary, reimburse Phoenix for any such taxes and charges, except for taxes based on Phoenix’s net income. 

7. TERM AND TERMINATION

7.1 Term.  Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form, and shall be renewed as set forth in the Order Form (collectively, the “Term”), unless either party provides written notice of non-renewal as set forth in the Order Form.

7.2 Termination for Cause. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement.  Without limiting the foregoing, Phoenix may terminate this Agreement immediately on notice (or may suspend the Services), without liability, to comply with any order by a government authority, if performance would violate applicable law, or if Customer attempts to access (or to force Phoenix to grant Customer access) to any Employee Information.

7.3 Effect of Termination.  Within thirty (30) days after the termination of this Agreement, each party shall destroy the Confidential Information of the other party then in its possession, and Phoenix shall destroy all Employee Information.  Customer shall uninstall and delete, or cause to be uninstalled and deleted of, all Software provided to Customer hereunder from any Customer Hardware, or from any other devices in Customer’s possession or control within thirty (30) days after termination, or as otherwise required by any EULAs in place between Phoenix and Customer at the termination of this Agreement. In the event that Customer does not follow the foregoing terms of this section, Phoenix shall have the right, but is not obligated, to unilaterally uninstall all Software from Customer Hardware. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

8. WARRANTY AND DISCLAIMER

8.1 Security. Phoenix uses industry standard security precautions designed to prevent unauthorized access to the Services as described in its Security Policy (Confidential Information of Phoenix, a summary of which may be made available to Customer at Customer’s request).  Phoenix shall promptly notify Customer of any material unauthorized use of the Services by an unauthorized person or entity that affects the security of the Customer’s Confidential Information and that is known to Phoenix.  The parties shall reasonably assist each other in investigating such unauthorized act and take such action as is reasonably necessary to prevent the continuation or recurrence thereof.

8.2 Availability.  Phoenix shall use commercially reasonable efforts consistent with industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Phoenix or by third-party providers, or because of other causes beyond Phoenix’s reasonable control.  Phoenix shall use reasonable efforts to provide advance notice in writing (including posting of the firmguard.com, or any successor, website) or by e-mail of any scheduled service disruption. Phoenix does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND PHOENIX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  PHOENIX DISCLAIMS ANY AND ALL LIABILITY FOR ERRONEOUS TRANSMISSIONS, UNAUTHORIZED ACCESS TO CUSTOMER’S DATA, FACILITIES OR EQUIPMENT, OR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF CUSTOMER DATA. CUSTOMER IS SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS, AND FOR PROTECTING CUSTOMER DATA AND PROGRAMS FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES. CUSTOMER WAIVES ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA. PHOENIX IS NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH THE SERVICES.  Any service level agreement or similar uptime commitment contained in an Order Form shall not be superseded by this paragraph.

9. LIMITATION OF LIABILITY

9.1 Damages Waiver. Except for Excluded Claims, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance. Without limiting the foregoing, Phoenix is not liable for any damages or other amounts in connection with any disputes or claims between or among Customer or any agent or employee of Customer.

9.2  Liability Cap. Except for Excluded Claims, each party’s entire liability arising out of or related to this Agreement will not exceed in aggregate the amount of Fees paid or payable by Customer to Phoenix during the twelve (12) months prior to the act or omission giving rise to the claim.

9.3 Excluded Claims. “Excluded Claims” means: (a) Customer’s or Authorized User’s breach of Sections 2.2, 2.3, or 3.1 or (b) amounts payable under Section 10.

9.4 Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

10. INDEMNITY

10.1 By Phoenix. Phoenix will defend Customer from and against any third-party claim to the extent alleging that the Services, when used by Customer as authorized in this Agreement, infringes the claimant third party’s registered U.S. patent, copyright or trademark, and will indemnify and hold harmless Customer against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by Phoenix resulting from the claim. In response to an actual or potential infringement claim, if required by settlement or injunction or as Phoenix determines necessary to avoid material liability, Phoenix may at its option: (a) procure rights for Customer’s continued use of the Services, (b) replace or modify portions of the Services to avoid infringement without reducing the Services’ overall functionality or (c) terminate the affected Services identified on an Order Form and refund to Customer any pre-paid, unused Fees for the terminated portion of the applicable Service Term for the affected Services. Phoenix’s obligations in this Section 10.1 do not apply (1) to infringement resulting from Customer’s modification of the Services or use of the Services in combination with items not provided by Phoenix, (2) to unauthorized use of the Services, (3) to infringement arising from a breach by Customer of any provision of this Agreement, (4) if Customer settles or makes any admissions about a claim without Phoenix’s prior consent or (5) claims indemnifiable under Section 10.2. This Section 10.1 sets out Customer’s exclusive remedy and Phoenix’s entire liability regarding infringement of third-party intellectual property rights.

10.2 By Customer.  Customer will defend Phoenix from and against any third-party claim to the extent arising in connection with (i) any Customer Data provided by or on behalf of Customer, including by any agent or employee of Customer or as output of any Customer System, (ii) Customer’s (including, for clarity, any Authorized User’s) use of the Services, including Customer Systems, and any Phoenix connection to any Customer System, including any misuse of or failure to secure Credentials resulting in any alleged or actual breach, (iii) any failure by Customer to secure any required consents or Authorized Users or any subject of Customer Data; (iv) any breach by Customer (including, for clarity, any Authorized User) of any provision in this Agreement, and (v) any indemnification obligations as set forth in this Agreement, and will indemnify and hold harmless Phoenix against any damages or costs awarded against Phoenix (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from such claims.

10.3 Requirements. The indemnified party shall provide to the indemnifying party: (a) prompt notice of the claim (except to the extent a failure to receive notice does not materially prejudice the defense of the claim), (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services). The indemnified party may participate in a claim with its own counsel at its own expense.  

11. MISCELLANEOUS

11.1 Publicity. Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by applicable law. However, Phoenix may include Customer and its trademarks in Phoenix’s customer lists and promotional materials but will cease this use at Customer’s written request.

11.2 No Legal Advice. Phoenix does not and shall not provide Customer with any legal advice regarding compliance with laws, rules or regulations in the jurisdictions in which Customer uses the Services, including those related to employment, harassment, data privacy, security, or confidentiality of personal information. Customer acknowledges and agrees that the Services may be used in ways that do and do not comply with such laws, rules or regulations and it is Customer’s sole responsibility to monitor its compliance with, and use the Services solely in strict compliance with, all such relevant laws, rules or regulations. Phoenix offers no assurance that Customer’s use of the Services under the terms of this Agreement shall not violate any law or regulation applicable to Customer.

11.3 Severability.  If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

11.4 Assignment.  This Agreement is not assignable, transferable or sublicensable by Customer except with Phoenix’s prior written consent.  Phoenix may transfer and assign any of its rights and obligations under this Agreement without consent.

11.5 Entire Agreement.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

11.6 Updates.  These Terms and Conditions may be updated by Phoenix from time to time (the Terms and Conditions, as updated, the “Updated Terms”) by delivering notice of the revised Terms and Conditions to the Customer by email, fax, mail, or posting to this website; Updated Terms shall be deemed accepted by Customer unless Customer provides written notice of non-acceptance to Phoenix within five (5) days of receipt of notice of the Updated Terms, which notice shall include the specific aspects of the Updated Terms that are objectionable. Following such notice of non-acceptance, Customer shall continue to be bound by the Terms and Conditions that were in effect as of immediately prior to the notice of Updated Terms. From and after the date of notice of the Updated Terms, upon any renewal of any Customer Order Form, or if Customer enters into a new Order Form, then all Order Forms then in force between Customer and Phoenix shall at such time automatically and without further action be governed by (and Customer shall be bound by) the Updated Terms.

11.7 Amendment; Waiver.  Except as set forth in Section 11.6, any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Phoenix. Nonetheless, with notice to Customer, Phoenix may modify any policies referenced herein to reflect new features or changing practices, but the modifications will not materially decrease Phoenix’s overall obligations during a Service Term. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Phoenix; any of these Customer documents are for administrative purposes only and have no legal effect.  The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.

11.8 Independent Contractors; Beneficiaries. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Phoenix in any respect whatsoever.  This Agreement is for the sole benefit of the Parties and their respective permitted successors and assignees.

11.9 Notices.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

11.10 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.

11.11 Subcontractors. Phoenix may use subcontractors. Phoenix remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

11.12 Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws provisions.  The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in the San Jose, CA and both parties submit to the personal jurisdiction of those courts. Should any dispute arise regarding this Agreement, the prevailing party shall be entitled to receive its reasonable legal fees and costs as awarded by a court of competent jurisdiction.

11.13 Priority of Documents.  In the case of any conflict or inconsistency between the terms of these Terms and Conditions (or any other aspect of this Agreement) and any Order Form, the terms of these Terms and Conditions will prevail, except as specifically stated otherwise in the Order Form, and except to the extent that the Order Form provides a term that is specific to the Services contracted for under the Order Form, the purpose of which would be vitiated due to a conflicting term in these Terms and Conditions (for example, if the Order Form permits Customer to sublicense or use for the benefit of a third party some aspect of the Services, Section 2.2 of these Terms and Conditions shall not be read to vitiate that right).