Last Updated and Effective: June 27, 2022
“App” means The Phillips Machinist application software platform, and any modifications thereto by the Company. The App shall include without limitation all data input and output related to Ask Joe, and any other technical documentation, instructions, formulas, algorithms, processes, flow charts, design details, graphical interface, images, design materials, scheme designs, or specifications related thereto.
“Ask Joe” means the question and answer forum within the App through which you may submit inquiries regarding the App and its subject matter, to which you shall receive a response from the Company.
“Intellectual Property Rights” means any rights associated with intellectual property, including without limitation (i) rights in patents and inventions, (ii) trademarks, service marks, trade names, logos and corporate names (in each case, whether registered or unregistered), including all goodwill associated therewith, (iii) copyrights (registered or unregistered) and works of authorship, (iv) computer software, data, interfaces and documentation thereof, (v) trade secrets, and (vi) all rights, remedies against infringements and rights to protect such interests.
“Third Party Property” means materials and information, in any form or medium, including without limitation any software, documents, instructions, user manuals, materials, data, content, specifications, products, equipment or components or other tangible or intangible property incorporated into the App or used in connection with the App that are the property of a third party.
- USE OF THE APP
- User Representations. By registering for the App, using the App or otherwise accessing the App, you are acknowledging and agreeing that you have read and accept the terms and conditions set forth in this Agreement. You represent that you have the capacity to be bound by this Agreement, and if you are acting on behalf of an entity, that you have the legal authority to bind such entity.
- User Restrictions. As a condition of your use of the App, you will not use the App for any purpose that is unlawful, not consistent with, or otherwise prohibited by this Agreement. You shall not, directly or indirectly, (i) use, or encourage, promote, facilitate or instruct others to use the App for any illegal, harmful or offensive use, or transmit, distribute or otherwise make available content that is illegal, harmful, or offensive, (ii) modify, amend, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the App or any portion thereof, (iii) combine the App or any part thereof with, or incorporate the App or any part thereof in, any other programs without prior written consent of the Company, (iv) reverse engineer, disassemble, decompile, decode, modify, amend or otherwise attempt to derive or gain access to the source code of the App or any part thereof, (v) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the App, and (vi) use the App in any manner that could damage, disable or interfere with any other party’s use and enjoyment of the App.
- Monitoring and Enforcement. We reserve the right, but do not assume the obligation, to investigate any violation of this Agreement or misuse of the App. The Company may, in its sole discretion: (i) investigate violations of this Agreement or misuse of the App, (ii) remove, disable access to, or modify any content or resource that violates this Agreement, (iii) suspend or otherwise terminate your access to the App, and (iv) report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Reporting may include disclosing any information we deem necessary to satisfy any applicable law, regulation, legal process, or government request.
- THIRD PARTY PROPERTY
The App may include Third Party Property. Third Party Property is available through hyperlinks to third-party websites, or is simply published on the App. Your rights and obligations with respect to such Third Party Property shall be subject to all terms and conditions of each applicable third-party license relating to Third Party Property. You agree to be legally bound by all said applicable third-party licenses. The Company makes no claim of ownership of, or any representations or warranties with respect to, any Third Party Property (or modification, derivative work, distribution, or sublicensing thereof), and such Third Party Property is supplied solely in accordance with the license agreements accompanying such Third Party Property. The Company is not liable for any Third Party Property and your use of said Third Party Property.
The Company has not been involved in the preparation, adoption or editing of such Third Party Property and does not explicitly or implicitly endorse or approve such Third Party Property. Any opinions or recommendations expressed via Third Party Property are solely those of the independent providers, not of the Company. The Company is not responsible for any errors or omissions relating to specific information provided by any third-party. While the Company attempts to provide accurate and timely information to serve the needs of users, neither the Company nor the Third Party Property providers guarantee its accuracy, timeliness, completeness, usefulness or any other aspect of the information and are not responsible or liable for any such content or your use thereof, including any advertising, products, or other materials on or available from third-party websites. You will access and use Third Party Property at your own risk. Third Party Property is provided for informational purposes only, and the Company and the Third Party Property providers shall not be liable for any loss or damage arising from your reliance upon such information.
- INTELLECTUAL PROPERTY RIGHTS
As between you and the Company, the Company and its third-party licensors retain all respective ownership and Intellectual Property Rights in and to the App and incorporated Third Party Materials. You may use the information on the App for your personal reference only. Trademarks owned by the Company or providers of content on the App are used to act as an indication of source or origin of associated services. Nothing on the App should be considered as granting any license or right under any trademark of the Company or any third party, nor should a user attempt to use, copy adapt or attempt to register any similar trademarks to any trademarks or logos appearing on the App or in the information therein.
You hereby acknowledge and agree the Company shall be the exclusive owner of all non-personally identifiable information input by you into the App. Such data input, and the related data output, generated via the App shall be deemed the intellectual property of the Company, and the Company expressly owns all Intellectual Property Rights thereto, including without limitation the right to publish your questions and the corresponding answers.
- INTERNET COMMUNICATION
Messages sent over the Internet cannot be guaranteed to be completely secure. The Company will not be responsible for any damages incurred by you as a result of any delay, loss, diversion, alteration or corruption of any message either sent to or received from the Company at your request, over the Internet.
Communication over the Internet may be subject to interruption, transmission blackout, delayed transmission due to Internet traffic or incorrect data transmission due to the public nature of the Internet or otherwise.
The Company does not represent or warrant that the App will be available and meet your requirements, that access will not be interrupted, that there will be no delays, failures, errors or omissions or loss of transmitted information, that no viruses or other contaminating or destructive properties will be transmitted or that no damage will occur to your computer system. You have sole responsibility for adequate protection and back up of data and/or equipment and for undertaking reasonable and appropriate precautions to scan for computer viruses or other destructive properties. The Company makes no representations or warranties regarding the accuracy, functionality or performance of any Third Party Property that may be used in connection with App.
- DISCLAIMER OF WARRANTIES
UNLESS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE APP IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE COMPANY AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE APP, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SYSTEM INTEGRATION, DATA ACCURACY, AND NON-INFRINGEMENT, IN EACH CASE TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW. WITHOUT LIMITATION, BUT SUBJECT TO THE FOREGOING, THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, OPERATE WITHOUT INTERRUPTION, BE COMPLETELY SECURE, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. THE COMPANY IS NOT RESPONSIBLE IN ANY MANNER FOR DIRECT, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF THE APP.
- DATA PRIVACY
The App is not intended for use by children under the age of 13. The Company does not knowingly market to children under the age of 13 or collect, maintain, use, share, or sell nonpublic personal information from children under the age of 13. In the event we discover that we have collected nonpublic personal information from a child under the age of 13, we will delete that information immediately. If you believe we have collected nonpublic personal information from a child under the age of 13, please contact us immediately at email@example.com to request access and/or deletion of that information.
- WAIVER, RELEASE AND LIMITATION OF LIABILITY
YOU AGREE THAT THE COMPANY AND ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, MEMBERS, MANAGERS, SUCCESSORS, ASSIGNS, INFORMATION PROVIDERS, PARTNERS AND SUPPLIERS (COLLECTIVELY, THE “COMPANY GROUP”) SHALL HAVE NO LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE APP. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST THE COMPANY GROUP (INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON THE NEGLIGENCE OF ANY OF THE COMPANY GROUP) FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH YOUR USE OF THE APP. NOTWITHSTANDING THE FOREGOING PARAGRAPH, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF THE COMPANY GROUP, IF ANY, FOR LOSSES OR DAMAGES SUSTAINED BY YOU SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00) (USD). IN NO EVENT SHALL THE COMPANY GROUP BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM ANY USE OF THE APP OR THE CONTENT THEREIN (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF WE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE AVAILABILITY OF THE APP DEPENDS ON MANY FACTORS, INCLUDING YOUR CONNECTION TO THE INTERNET, THE AVAILABILITY OF THE INTERNET AND THE INTERNET BACKBONE AND EQUIPMENT THAT, BY ITS NATURE, IS NOT FAULT TOLERANT. COMPANY SHALL NOT BE RESPONSIBLE FOR YOUR INABILITY TO ACCESS THE APP, OR DATA OR OUTPUT ERRORS (I) CAUSED BY FACTORS OUTSIDE OF COMPANY’S REASONABLE CONTROL; (II) THAT RESULTED FROM YOUR OR ANY THIRD-PARTY’S ACTIONS OR INACTION; (III) THAT RESULTED FROM YOUR EQUIPMENT AND/OR THIRD-PARTY EQUIPMENT NOT WITHIN COMPANY’S SOLE CONTROL; OR (IV) CONNECTIONS TO THE INTERNET WHICH ARE NOT WITHIN COMPANY’S SOLE CONTROL.
SOME STATES DO NOT ALLOW THE EXCLUSION OF DAMAGES OR LIMITATION OF LIABILITY AS SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION DOES NOT APPLY OR IS DEEMED TO BE INVALID OR UNENFORCEABLE, FOR ANY REASON, THEN UNDER THOSE CIRCUMSTANCES, THE AGGREGATE LIABILITY AND DAMAGE EXCLUSION SHALL ONLY BE RESTRICTED OR DIMINISHED TO THE EXTENT NECESSARY TO BE LEGALLY ENFORCEABLE. IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF LIABILITY, AND EXCLUSIONS OF LIABILITY SHALL REMAIN IN EFFECT.
You agree, at your own expense, to indemnify, defend and hold harmless the Company Group from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable attorneys’ and experts’ fees, arising out of or in connection with the App including without limitation: (i) your use of the App; (ii) use of the App by someone using your account; (iii) a violation of this Agreement by you or anyone using your account; (iv) a claim that any use of the App by you or someone using your account (a) infringes any Intellectual Property Rights of a third-party, (b) violates any right of privacy or publicity, or (c) engages in activity that otherwise results in injury or damage to any third-party; (v) any deletions, additions, insertions or alterations to, or any unauthorized use of the App by you or someone using your account; (vi) any misrepresentation or breach of representation or warranty made by you contained herein; or (vii) any breach of any covenant or agreement to be performed by you hereunder. You agree to pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by or in connection with or arising from any such claim, suit, action, or proceeding attributable to any such claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defense. You acknowledge and agree to pay reasonable attorneys’ fees incurred by us in connection with any and all lawsuits brought against you by the Company Group under this Agreement, including without limitation, lawsuits arising from your failure to indemnify us pursuant to this Agreement.
- Amendments. Only the Company can amend this Agreement by posting such amendments on the App and no employee or agent of the Company has the authority to vary this Agreement. It is your sole responsibility to check the App from time to time to view such changes in this Agreement. If you do not agree to any of the changes, if and when such changes are made, you must cease using the App. Your continued use of the App after any amendments to this Agreement indicates that you agree to such amendments.
- Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be construed in a manner consistent with applicable law to reflect as nearly as possible our original intent, and the remaining portions shall remain in full force and effect. The Company also reserves the right, in its sole option, to terminate this Agreement if any provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable.
- Governing Law; Jurisdiction. The terms and conditions of this Agreement shall be governed by and construed in accordance with the internal laws of the State of Maryland, without regard to its provisions concerning choice of laws or choice of forum. You hereby irrevocably submit to the sole and exclusive jurisdiction of the courts of the State of Maryland, and all actions and proceedings arising out of or relating to this Agreement must be heard and determined in a state court in Howard County, Maryland or federal court in Baltimore, Maryland.
- WAIVER OF JURY TRIAL. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF THE APP.
- Relationship of the Parties. You and the Company are independent contractors and this Agreement does not create any joint venture, employment, agency or partnership relationship.
- Notices. We may deliver notice to you under this Agreement by means of electronic mail, a general notice on the App, or by written communication delivered by first class U.S. mail to your address on record in your account information, if any. Such notices shall become effective immediately. Any notice or other communication to the Company that is required or permitted hereunder shall be hand delivered (including delivery by a commercial courier service) or sent by United States registered or certified mail, postage prepaid, or sent by email addressed as follows:
7390 Coca Cola Drive, Suite 200
Hanover, MD 21076
Attn: Phillips Machinist Admin
with a copy (which shall not constitute notice but shall be required for notice) to:
Zarren Law Group
8 Park Center Court, Suite 100
Baltimore, MD 21117
Attn: Adam S. Zarren, Esq.
Facsimile: (410) 363-3569
- Disclosure. The Company reserves the right to take steps the Company believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that subject to its obligations under applicable law, the Company has the right, without liability to you, to disclose any account information and/or private information to law enforcement authorities, government officials, and/or third parties, as the Company believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement or to comply with applicable law or contractual obligations (including without limitation the Company’s right to cooperate with any legal process relating to your use of the App). We will take measures that we believe are commercially reasonable to protect the confidentiality of your information.
- Assignment. You may not assign this Agreement without our written consent. We may assign our rights under this Agreement, in whole or in part, to any person or entity without notice to you.
- No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
- Export Controls. The App and the underlying information and technology may not be downloaded or otherwise exported or re-exported: (i) into (or to a national resident of) any country that is subject to a U.S. Government embargo or has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the App, you are agreeing to the foregoing and you represent and warrant that you (a) are not located in, under the control of, or a national or resident of any such country or on any such list, (b) are not listed on any U.S. Government list of prohibited or restricted parties, and (c) agree to comply with all export laws and other applicable laws.
- U.S. Government End Users. The App was developed by private financing and constitutes a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101. The App consists of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through §227.7202-4, all U.S. Government users acquire only those rights in the App that are specifically provided by this Agreement. Consistent with 48 C.F.R. §12.211, all U.S. Government users acquire only technical data and the rights in that data customarily provided under this Agreement.
- User Outside the United States. If you are using the App outside of the United States, then the following shall apply: (i) you confirm that this Agreement and all related documentation is and will be in the English language; (ii) you are solely responsible for complying with any local laws in your jurisdiction which might impact your right to import, export, or use the App or any services accessed or used in connection with the App, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this Agreement enforceable.