Legal
PGM LLC · Rev. 8.27.26 (v7) · These Terms of Service govern the Website and the Trial Environment only. The Software is licensed separately under the Software License Agreement.
Welcome to Phase Gate Manager! The entire team at PGM LLC is excited to have you visit our Site.
When you access our Site or use our online services (web-based and smart device applications, both), you enter into a legal agreement, which is what you see below. This agreement may seem long, but that's because we've tried to make it as clear as we can. We've also bolded or put in all caps a few areas that talk about important legal rights, including the following:
These Terms of Service include an agreement to require that disputes be resolved first by good-faith negotiation, then by mediation, and, if mediation does not resolve the dispute, by final and binding arbitration on an individual basis, and they include a class action waiver. They also contain important disclaimers, warranties and limitations on liability. These Terms of Service govern the Website and the Trial Environment only; the perpetual license to the Software is granted under a separate Software License Agreement, which survives termination of these Terms of Service.
This agreement applies to every product or service we offer, but does not include products or services provided by third parties. "Service(s)" means the products, features, content, and functionality made available by us, PGM LLC ("Company," "we," "us," or "our") under this Agreement, including the website located at phasegatemanager.com (the "Website" or "Site"), any Company-branded mobile, tablet, smart device, or desktop application (each, an "Application"), and any other website, portal, interface, application programming interface, or platform — whether now existing or later developed — through which Company makes the Service(s) available. Our Service(s) are in the nature of a license we grant to you. Subject to your compliance with this Agreement, Company grants you a limited, non-exclusive, non-transferable, and non-assignable license to access and use the Service(s) solely for your internal business purposes during the Term. This license does not extend to products or services provided by third parties. This license terminates automatically, without any requirement of notice, upon termination or expiration of this Agreement for any reason, whether by Company, by you, or by operation of this Agreement's terms. For clarity, this Section grants rights in the Website and the Trial Environment only. The Phase Gate Manager software application that you purchase, install, and operate on your own infrastructure (the "Software") is licensed to you under a separate Software License Agreement, and the termination or expiration of these Terms of Service does not terminate, suspend, revoke, or otherwise affect that license. See Section A.3.
The Service(s) may be accessed through any device, browser, operating system, or technology now known or hereafter developed, and this Agreement governs your access to and use of the Service(s) regardless of the means by which you access them.
We're always happy to hear from you if you have any questions or suggestions. You can contact us by email at info@phasegatemanager.com.
Now for more legal stuff:
1. This Site belongs to PGM LLC. By purchasing from, using, accessing or visiting this Site or any of our Service(s), you signify your agreement to (1) these terms and conditions (the "Terms of Service") (the "Agreement") and (2) our Privacy Policy, both of which are found at our Site and incorporated herein by this reference. Collectively, these terms and conditions and the Privacy Policy are also referred to and treated as Terms of Service. The Terms of Service include products or service offerings, conditions, terms, descriptions, details and pricing, all of which are found throughout this Site and all of which are incorporated in and included as part of these Terms of Service. If you do not agree to any of the Terms of Service, please do not use the Service(s). "Term" means the time period commencing with your acceptance of this Agreement and ending immediately upon termination, for any cause.
2. Although we may attempt (but are not obligated) to notify you when changes are made to these Terms of Service, you should periodically review the most up-to-date version at the Site, because you hereby agree to abide by and honor the most up-to-date version of the Terms of Service. By each use of the Site or Service(s), you agree to be bound by the latest version of these Terms of Service and the Privacy Policy. Company may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits.
3. Relationship to the Software License Agreement; Order of Precedence. These Terms of Service govern your access to and use of the Website and the Trial Environment only. The Software is licensed separately, under a written Software License Agreement executed at or before the time of purchase (the "License Agreement"). The License Agreement governs all rights in the Software, including the scope, duration, and perpetual character of the license granted in it, and it survives the termination or expiration of these Terms of Service. Nothing in these Terms of Service terminates, suspends, revokes, shortens, conditions, or otherwise limits any license granted under the License Agreement. If any provision of these Terms of Service conflicts with the License Agreement as to the Software, the License Agreement controls.
1. These Terms of Service apply to all users of the Service(s). "Content" means the text, software, scripts, graphics, photographs, sounds, audiovisual works, interactive features, templates, forms, documentation, and other materials that Company makes available on, through, or as part of the Service(s), together with any material that you submit to a public-facing area of the Website. Content does not include Customer Data. "Customer Data" means the data, records, files, documents, entries, configurations, and other information that you or your Authorized Users enter into, upload to, generate through, or store in the Software or the Trial Environment, including without limitation project and program records, supplier names, part numbers, cost and pricing data, drawings, schedules, and the names, titles, and business contact information of your personnel and of third parties. "Authorized User" means an individual whom you permit to access the Software or the Trial Environment under your account or your license. The Service(s) include all products, software and services offered by Company via the Site.
2. The Service(s) contain links to third-party websites that are not owned or controlled by Company. Company has no control over and assumes no responsibility for the actions, agreements, content, privacy policies or practices of any third-party websites. In addition, Company will not and cannot censor or edit the content of any third-party site. By using the Service(s), you expressly relieve and release Company from any and all liability arising from your use of any third-party website. Accordingly, we encourage you and you agree to be aware of and to read the terms and conditions and privacy policy of each other website that you visit.
3. Because we do not control third-party sites, products and services, you agree to defend, indemnify, and hold harmless Company and its officers, owners, managers, directors, employees, agents and affiliates from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to (a) your use of, access to, or reliance on any Third-Party Service; (b) any act or omission of a Third-Party Service or its provider; (c) your breach of any agreement, terms of use, or license governing a Third-Party Service; or (d) any dispute between you and a Third-Party Service provider. This indemnification obligation survives termination of this Agreement.
4. License Verification and Installation Reporting. Each installation of the Software periodically transmits to Company a limited set of technical information for the sole purpose of confirming that the installation is operating under a valid license, identifying installations operating without a valid license, and determining which version of the Software is in use. The information transmitted by the installation is limited to: (a) the license key; (b) a deployment identifier, consisting of the reference assigned by your database hosting provider to the database instance on which the installation operates; (c) the Software version number; (d) the number of active user accounts, excluding Company personnel; (e) the number of active projects, expressed as a count only; (f) the calendar week of transmission; and (g) a randomly generated identifier and timestamp for the transmission itself. In addition, and as with any ordinary internet request, Company's receiving server records the originating network address, the identifier of the software making the request, and the date and time of receipt.
Company does not collect, and the Software does not transmit to Company through this process, any Customer Data, any personal data of your Authorized Users or of any other individual, or any other content of your installation. No project name, part number, supplier name, user name, user email address, document, or file is transmitted. The counts described in (d) and (e) are numeric totals and do not identify any individual or any record.
Company uses this information only for license administration, anti-piracy enforcement, version support, and internal statistical purposes, and does not sell it or disclose it to any third party except to Company's service providers under obligations of confidentiality or as required by law. This process is described in the Privacy Policy. You agree not to block, disable, circumvent, spoof, falsify, or otherwise interfere with this process, and you acknowledge that doing so is a material breach of these Terms of Service and of the License Agreement.
5. Support and Updates; No Service Levels. Company provides technical support, if at all, in its sole discretion. Company makes no commitment as to response time, resolution time, availability, uptime, or the continued operation of the Website or the Trial Environment, and nothing in these Terms of Service creates a service level agreement, a maintenance obligation, or a support contract. Company may, but is not required to, make security patches, critical bug fixes, updates, upgrades, or new versions available to licensees at no charge. Company's having done so on any occasion does not obligate Company to do so on any other occasion, and Company may discontinue the practice at any time without notice. You are responsible for installing any patch, fix, update, or new version that Company makes available and for obtaining and maintaining the infrastructure, accounts, and third-party services on which your installation depends.
6. United States Use Only; Export Compliance; Affiliate Users. By purchasing, accessing, or using the Service(s) or the Software, you represent, warrant, and covenant that: (a) you are located in the United States; (b) you will install, host, and operate the Software on servers located in the United States; (c) you will not export, re-export, transfer, deploy, or provide access to the Software or any part of it outside the United States, and will not permit any Authorized User located outside the United States to access it, without Company's prior written approval in each instance; (d) you will comply with all applicable United States export control and economic sanctions laws, including the Export Administration Regulations, 15 C.F.R. §§ 730–774, the International Traffic in Arms Regulations, 22 C.F.R. §§ 120–130, and the sanctions programs administered by the U.S. Department of the Treasury's Office of Foreign Assets Control; and (e) neither you nor any of your affiliates, owners, or Authorized Users is a person or entity identified on the Consolidated Screening List maintained by the U.S. Department of Commerce or on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, and you will not provide access to the Software to any such person or entity. If you permit any affiliate, parent company, or subsidiary to use the Software or to hold seats under your license, you remain fully responsible for that entity's compliance with these Terms of Service and with the License Agreement, and any act or omission of that entity that would be a breach if committed by you is your breach. You acknowledge that, as described in Section B.4, Company's receiving server records the originating network address of each license verification request, and that operating an installation outside the United States without Company's prior written approval is a material breach. You are solely responsible for determining whether any data you place in the Software is subject to export control or to any other regulatory regime, and for satisfying every obligation that attaches to that data; in a self-hosted installation Company neither receives nor has access to that data.
1. In order to access some features of the Service(s), you may be asked to create a Company account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Company immediately of any breach of security or unauthorized use of your account. Company is not responsible for any act of any other person on your account.
2. Although Company will not be liable for your losses or injury caused by any unauthorized use of your account, you may be liable for the losses of Company or others due to such unauthorized use.
Company hereby grants you permission to access and use the Service(s) as set forth in these Terms of Service, provided that:
1. You agree not to distribute in any medium any part of the Service(s) or the Content without Company's prior written authorization, unless Company makes available the means for such distribution through functionality offered by the Service(s).
2. You agree not to alter or modify any part of the Service(s).
3. You agree not to access Content through any technology or means other than the Service(s) themselves or other explicitly authorized means Company may designate.
4. You agree not to use the Service(s) for any of the following commercial uses unless you obtain Company's prior written approval:
a. the sale of access to the Service(s); or
b. the sale of advertising, sponsorships, or promotions placed on or within the Service(s) or Content.
5. You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that access the Service(s) in a manner that sends more request messages to the Company servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. Notwithstanding the foregoing, Company grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Company reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service(s), nor to use the communication systems provided by the Service(s) (e.g., comments, email, phone numbers) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service(s) with respect to their Content.
6. In your use of the Service(s), you will comply with all applicable laws.
7. Company reserves the right to discontinue, change or alter any aspect of the Service(s) at any time.
In addition to the general restrictions above, the following restrictions and conditions apply specifically to the use of Content, whether on our sites or applications, or third-party sites.
1. The Content on the Service(s), and the trademarks, service marks and logos ("Marks") on the Service(s), are owned by or licensed to Company, subject to copyright and other intellectual property rights under the law.
2. Content is provided to you AS IS. You may access Content for your informational and personal use solely as intended through the provided functionality of the Service(s) and as permitted under these Terms of Service. You shall not download any Content unless you see a "download" or similar link displayed by Company on the Service(s) for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purpose without the prior written consent of Company or the respective licensors of the Content. Company and its licensors reserve all rights not expressly granted in and to the Service(s) and the Content.
3. You agree not to circumvent, disable or otherwise interfere with security-related features of the Service(s) or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service(s) or the Content therein.
4. You understand that when using the Service(s), you will be exposed to Content from a variety of sources, and that Company is not responsible for the accuracy, usefulness, legality, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive and release, and hereby do waive and release, any legal or equitable rights or remedies you have or may have against Company with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless Company, its officers, owners, managers, directors, employees, agents and affiliates to the fullest extent allowed by law regarding all matters related to your use of the Service(s). Content on the Site is not intended to be legal, tax, medical or other professional or licensed advice, and you should seek your own licensed counsel or guidance.
1. Responsibility for Your Inputs, Your Exports, and Your Users. You are responsible for what you and your Authorized Users put into the Service(s), for what you send out of them, and for whom you let in. Specifically, you are responsible for: (a) the accuracy, legality, and appropriateness of all Customer Data and other material you or your Authorized Users enter into or upload to the Service(s), and for holding the rights, licenses, consents, and permissions necessary to do so; (b) any report, export, extract, message, or file that you or your Authorized Users generate from the Service(s) and then transmit, publish, or otherwise disclose to any third party, including any supplier, customer, or affiliate; and (c) the creation, administration, and revocation of your accounts, credentials, seats, roles, and permissions, and the acts and omissions of every person to whom you grant access. Company has no ability to control, and assumes no responsibility or liability for, any of the foregoing. Company will treat Customer Data that you disclose to Company in connection with a support request as confidential, will use it only as necessary to respond to that request, and will not disclose it except to Company personnel and service providers who need it for that purpose or as required by law. Except as stated in the preceding sentence and in any separately executed confidentiality or data processing agreement, Company undertakes no confidentiality obligation with respect to any material you submit to a public-facing area of the Website.
2. You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service(s). You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to Company all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service(s) pursuant to these Terms of Service. Company may reasonably rely on these and all other representations you make in these Terms of Service.
3. Ownership of Content and of Customer Data.
(a) Company Property. As between you and Company, Company owns and retains all right, title, and interest in and to the Software, the Website, the Trial Environment, the Content, the Marks, and all templates, forms, documentation, workflows, and other materials Company makes available, together with all intellectual property rights in them. No right in any of the foregoing is granted to you except the limited licenses expressly stated in these Terms of Service and in the License Agreement.
(b) Your Property. As between you and Company, you own and retain all right, title, and interest in and to Customer Data, including all intellectual property rights in it. Company claims no ownership of Customer Data. In a self-hosted installation, Customer Data resides on infrastructure that you control, and Company neither receives nor has access to it.
(c) Limited License to Customer Data. You grant Company a worldwide, limited, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license to access, store, transmit, and use Customer Data solely: (i) to the extent you disclose Customer Data to Company, or grant Company access to your installation, for the purpose of responding to a support request you initiate, and only for so long as is necessary to respond to that request; and (ii) to host and operate the Trial Environment during your trial period. This license grants Company no right to sell, license, sublicense, publish, display, distribute, or transfer Customer Data, and no right to use Customer Data for marketing, product development, model training, or any purpose other than those stated in this Section, except that Company may compile and use aggregated, de-identified statistical information derived from operation of the Trial Environment that does not identify you, any Authorized User, or any other individual and does not reveal any Customer Data.
(d) Duration and Deletion. The license in Section F.3(c)(i) terminates when Company completes the support request. The license in Section F.3(c)(ii) terminates when your trial period ends, and Company will delete Customer Data residing in the Trial Environment within thirty (30) days after the trial period ends, except for backup copies that are overwritten or deleted in the ordinary course of Company's backup rotation and are not accessed in the meantime. No license granted by you under these Terms of Service is perpetual, irrevocable, sublicensable, or transferable.
(e) Website Submissions. If you submit material to a public-facing area of the Website, you grant Company a non-exclusive, royalty-free license to use, reproduce, display, and distribute that material in connection with the Website; that license terminates within a commercially reasonable time after you ask Company in writing to remove it. This Section F.3(e) does not apply to Customer Data.
4. You further agree that Content you submit to the Service(s) will not contain third-party confidential data, trade secrets, copyrighted material, or material that is subject to other third-party trademarks or other proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Company all of the license rights described or granted herein. Company strongly discourages and prohibits violations of third-party intellectual property rights.
5. Prohibited Content and Conduct. You further agree that you will not submit to the Service(s), and will not use the Service(s) to transmit, store, or distribute, any Content or other material that: (a) is unlawful, or that promotes or facilitates unlawful activity; (b) infringes or misappropriates any patent, trademark, trade secret, copyright, right of publicity, or other right of any person or entity; (c) is defamatory, libelous, obscene, pornographic, or sexually explicit; (d) is harassing, threatening, abusive, or that promotes violence or discrimination against any individual or group; (e) contains any virus, worm, trojan horse, ransomware, spyware, keylogger, or other malicious code, or any mechanism designed to disrupt, disable, overburden, or impair the Service(s) or any Company system; (f) constitutes unsolicited commercial email, chain letters, pyramid schemes, or other unsolicited solicitation; (g) impersonates any person or entity or misrepresents your affiliation with any person or entity; or (h) is otherwise contrary to applicable local, state, national, and international laws and regulations. You further agree that you will not attempt to gain unauthorized access to the Service(s), to any Company system, or to any other user's account, and will not probe, scan, or test the vulnerability of any Company system except with Company's prior written authorization.
6. Company does not review, approve, edit or endorse any Content submitted to the Service(s) by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and Company expressly disclaims any and all liability in connection with Content. Company does not permit copyright infringing activities and infringement of intellectual property rights on the Service(s), and Company may remove all Content if properly notified that such Content infringes on another's intellectual property rights or is otherwise unlawful. Company reserves the right to remove Content without prior notice. It is your obligation to monitor and determine whether someone is violating or infringing on your intellectual property rights and to report the same to Company.
7. Feedback. If you or any of your Authorized Users send Company any suggestion, idea, feature request, enhancement, recommendation, bug report, or other feedback concerning the Service(s) or the Software (collectively, "Feedback"), you grant Company a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid, transferable, and sublicensable license to use, reproduce, modify, and exploit that Feedback, and to develop, make, have made, market, license, and sell products and services incorporating it, without restriction, compensation, accounting, attribution, or obligation of confidentiality. Company is free to use Feedback whether or not Company acts on it, and you acquire no right, title, or interest in any product, feature, or improvement that Company develops. Feedback does not include Customer Data or any information you designate in writing as confidential at the time you provide it, and nothing in this Section obligates you to provide Feedback.
1. Company may suspend or terminate your account and your access to the Website and the Trial Environment at any time, in its sole discretion, including if Company determines that you are a repeat or significant infringer of intellectual property rights, that you have breached these Terms of Service, or that you have breached the License Agreement. Because the Software is installed and operated on infrastructure that you control, Company does not administer, and does not claim any ability to terminate, your access to your own installation. Company's rights and remedies with respect to the Software, including any right to suspend, revoke, or terminate a license to the Software, are governed exclusively by the License Agreement.
2. Company reserves the right to decide whether Content violates these Terms of Service for reasons other than copyright, trade secret, trademark or other intellectual property rights infringement, such as, but not limited to, pornography, obscenity, illegality, or excessive length. Company may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user's account for submitting such material in violation of these Terms of Service.
1. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):
a. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
c. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
d. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;
e. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
f. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Company's designated Copyright Agent to receive notifications of claimed infringement is:
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 Company's customer service through its Site. You acknowledge that if you fail to comply with all of the requirements of this Section H, your DMCA notice may not be valid.
2. Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:
a. Your physical or electronic signature;
b. Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
c. A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
d. Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the United States District Court for the judicial district in which your address is located, or, if your address is outside the United States, the United States District Court for the Southern District of Indiana, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at Company's sole discretion.
YOU AGREE THAT YOUR USE OF THE SERVICE(S) SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, OWNERS, MANAGERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE(S) AND YOUR USE THEREOF, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE(S), (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE(S), (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE(S) BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE(S). COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE(S) OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
IN NO EVENT SHALL COMPANY, ITS OFFICERS, OWNERS, MANAGERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE(S), (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE(S), (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE(S) BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE(S), WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT COMPANY SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Service(s) are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Service(s) are appropriate or available for use in other locations. Those who access or use the Service(s) from other jurisdictions do so at their own volition and are responsible for compliance with local law. Access to or use of the Service(s) or the Software outside the United States is prohibited except with Company's prior written approval as provided in Section B.6.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Company, its officers, owners, managers, directors, employees, agents and affiliates, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service(s); (ii) your violation of any term of these Terms of Service; (iii) your violation of any third-party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Service(s).
You represent and warrant that: (a) you are at least eighteen (18) years of age; (b) you are acquiring and using the Service(s) and the Software solely for business purposes, and not for personal, family, or household purposes; (c) if you are entering into these Terms of Service on behalf of a corporation, limited liability company, partnership, or other entity, you are authorized to bind that entity, and "you" and "your" mean that entity; and (d) you are fully able and competent to enter into, and to comply with, the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service. The Service(s) are not directed to, offered to, or intended for use by children, and Company does not knowingly collect information from any individual under the age of eighteen (18).
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction.
1. Governing Law; Venue; General Provisions. You agree that: (i) the Service(s) shall be deemed solely based in Indiana; and (ii) the Service(s) shall be deemed a passive Site that does not give rise to personal jurisdiction over Company, either specific or general, in jurisdictions other than Indiana. These Terms of Service shall be governed by the internal substantive laws of the State of Indiana, without respect to its conflict of laws principles. Any claim or dispute between you and Company that arises in whole or in part from the Service(s) shall be resolved exclusively as provided in Section N.2, and any court proceeding permitted by Section N.2 shall be brought exclusively in a state court of competent jurisdiction located in Marion County, Indiana, or in the United States District Court for the Southern District of Indiana; you consent to the personal jurisdiction of those courts and waive any objection to venue in them. The Terms of Service, including all other documents referenced and incorporated herein, and any other legal notices published by Company on the Service(s), shall constitute the entire agreement between you and Company concerning the Service(s). If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Company's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. Company reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Service(s) following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE(S) MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
2. Dispute Resolution — Negotiation, Mediation, then Binding Arbitration; Class Action Waiver.
a. Notice and Negotiation. Before commencing mediation or arbitration, the party raising a dispute shall send the other party a written Notice of Dispute describing the dispute, the facts on which it is based, and the relief sought. Notice to Company shall be sent to PGM LLC, 8867 E. Co. Rd 900 S., Austin, Indiana 47102, and to info@phasegatemanager.com. The parties shall attempt in good faith to resolve the dispute by direct negotiation for thirty (30) days after the Notice of Dispute is sent.
b. Mediation. If the dispute is not resolved by negotiation, the parties shall submit it to non-binding mediation before a single mediator, conducted in Marion County, Indiana, in accordance with the Indiana Rules for Alternative Dispute Resolution. If the parties do not agree on a mediator within fifteen (15) days after the negotiation period ends, either party may request appointment of a mediator from the registry of registered mediators maintained by the Indiana Continuing Legal Education Forum. Each party shall bear its own costs and attorney fees for the mediation, and the parties shall share the mediator's fee equally. Completion of mediation is a condition precedent to arbitration.
c. Binding Arbitration. If mediation does not resolve the dispute within sixty (60) days after the mediator is appointed, the dispute shall be resolved by final and binding arbitration before a single arbitrator, seated in Marion County, Indiana, and governed by the Indiana Uniform Arbitration Act, Ind. Code art. 34-57-2. The arbitrator shall be an attorney licensed in Indiana with substantial experience in commercial and technology contracts, selected by agreement of the parties or, failing agreement within fifteen (15) days, appointed on the application of either party by a court of competent jurisdiction in Marion County, Indiana. The arbitrator shall apply Indiana substantive law, shall have no authority to award relief inconsistent with Sections I, J, or K, and shall issue a reasoned written award. Judgment on the award may be entered in any court of competent jurisdiction. Each party shall bear its own attorney fees, and the parties shall share the arbitrator's fees and the administrative costs of the arbitration equally, except that the arbitrator may reallocate those fees and costs upon a finding that a claim or defense was frivolous, unreasonable, groundless, or asserted in bad faith.
d. Waiver of Court and Jury Trial. Except as provided in Section N.2(e), each party waives any right to have a dispute arising out of or relating to the Service(s) decided by a court and any right to a trial by jury.
e. Exceptions. Notwithstanding Sections N.2(a) through (d), either party may (i) bring an action in a court identified in Section N.1 seeking a temporary restraining order, preliminary injunction, or other injunctive or equitable relief to prevent or stop the unauthorized use, copying, distribution, reverse engineering, or disclosure of the Software, the Content, the Marks, or either party's confidential information, or to enforce Section B.6; (ii) bring an action to compel mediation or arbitration or to confirm, vacate, modify, correct, or enforce an arbitration award; and (iii) file a claim in small claims court if the claim qualifies for and remains in that court. Seeking relief under this Section N.2(e) is not a waiver of the right to arbitrate any other claim.
f. Class Action Waiver. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. THE MEDIATOR AND THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MORE THAN ONE PERSON AND MAY NOT PRESIDE OVER ANY FORM OF CLASS OR REPRESENTATIVE PROCEEDING. If this Section N.2(f) is held unenforceable as to a particular claim, that claim, and only that claim, shall be severed from the arbitration and brought in a court identified in Section N.1.
g. Survival. This Section N.2 survives the termination or expiration of these Terms of Service.
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