Terms of Service
Phosphorus App End User License Agreement
Effective Date: April 2, 2021
You should carefully read the following terms and conditions of this End User License Agreement (this “Agreement”) is between you and Phosphorus Cybersecurity Inc. (variously referred to as “we,” “us,” “our” or “Company”) and governs use of this downloadable software application (the “Phosphorus App”) made available through the Apple App Store. By installing the Phosphorus App, you agree to be bound by this Agreement and understand that there is no tolerance for objectionable content. If you do not agree with the terms and conditions of this Agreement, you are not entitled to use the Phosphorus App.
If You are entering into this Agreement on behalf of an organization, (a) all references to “you” or “your” or “user” in this Agreement means both the organization and yourself (the individual person who downloads or uses the Phosphorus App); (b) by installing and utilizing the Phosphorus App you represent and warrant that you have the authority to enter into this Agreement on behalf of the organization and that the organization agrees to be bound by all of the terms and conditions of this Agreement.
The Company offers a cloud based technology service (the “Company Platform”) that enables you to identify security vulnerabilities on your Internet of Things devices via the Phosphorus App (all information available through the Phosphorus App, whether from the Company or third parties, is collectively referred to as the “Content”). The Phosphorus App together with all Content is referred to as the “Service.” The Phosphorus App works in conjunction with the Company Platform and does not independently provide functionality similar to the Company Platform. Your use of the Phosphorus App is conditioned on your use of the Phosphorus App to access the functionality provided by the Company Platform. If the foregoing is not true then You are not authorized to use the Phosphorus App and you must uninstall the Phosphorus App. Your right and license to use the Phosphorus App is limited to use in conjunction with the Company Platform.
In order to ensure Phosphorus App provides the best experience possible for everyone, we strongly enforce a no tolerance policy for objectionable Content. If you see inappropriate Content, please use the “Report as offensive” feature found under each post.
This Agreement is between you and Phosphorus App only, and not Apple, Inc. (“Apple”). Notwithstanding the foregoing, you acknowledge that Apple and its subsidiaries are third party beneficiaries of this Agreement and Apple has the right to enforce this Agreement against you. Phosphorus App, not Apple, is solely responsible for the Phosphorus App and its content. The Company and you agree to be bound by the Apple App Store Terms of Service as of the Effective Date (which you acknowledge you have had the opportunity to review), including without limitation the Usage Rules (as defined in the Apple App Store Terms of Service) (capitalized terms below have the definitions given to them in the Apple App Store Terms of Service unless otherwise defined herein).
Phosphorus App may collect and use information about your usage of the Phosphorus App, including, without limitation, information from and about your device (“Your Data”). Any of Your Data that you upload or otherwise provide to the Company in connection with the Phosphorus App may be used by the Company in order to provide and promote the Phosphorus App or the Company’s business. Accordingly, you grant to the Company, and all of its subsidiaries, affiliates, successors, and assigns, a worldwide, perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to use, publish, reproduce, distribute, modify, prepare derivative works of, adapt, publicly display and otherwise use Your Data. Such right to use Your Data shall survive the termination of this Agreement and termination of the Phosphorus App. You authorize us to use, forward, or post your profile or related information on other sites and Phosphorus App. Additionally, you authorize us to use your corporate logo and corporate name, if applicable, for any promotional purposes (to opt-out, email us at [EMAIL ADDRESS]). Notwithstanding the foregoing, you retain all rights to Your Data, except as otherwise provided herein or as otherwise provided in any other agreement between you and the Company. Your Data that you submit to us is provided at your own risk of loss. You are solely responsible for all of Your Data you share, provide, display, publish, or disseminate to others, whether such action was taken by us or you. By providing Your Data to us, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third party rights (including any intellectual property rights). The Company may also remove or delete Your Data from the Phosphorus App at any time in its sole discretion.
You are responsible for making Your Data available that is necessary for us to provide the Service. Actual service coverage, speeds, locations and quality may vary. We will attempt to provide the Service at all times, except for periods for maintenance and repair or in the case of emergencies or outages. The Service may be subject to unavailability for a variety of factors beyond our control including, without limitation, emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Service or communications service or networks. We may impose usage or Service limits, suspend the Service, or block certain kinds of usage in our sole discretion to protect users, data, our systems, or the Service. The accuracy and timeliness of data received is not guaranteed.
3. Limited License
The Company grants you a limited, personal, non-exclusive, non-transferable, revocable license to use the Phosphorus App for the purposes contemplated by the Phosphorus App itself, and only on Apple devices that you own or control and as permitted by the App Store Terms of Service. User may not (i) install the Phosphorus App on computer products designed to allow simultaneous access by multiple end users, such as those in a server or mainframe environment, or (ii) install the Phosphorus App in a way to allow its use by anyone other than a human—computerized utilization of the Phosphorus App is not allowed. User may use the Service solely for private and personal purposes. User may not: (A) offer to third parties a service of User’s own that uses the Service; (B) resell the Service; (C) offer to rent or lease the Service; or (D) offer the Service to the public via communication or integrate it within a service or application of User’s own, without the prior written consent of Company. User is responsible for ensuring that User has appropriate hardware, software, and connectivity to enable the Phosphorus App to function in accordance with the documentation for the Phosphorus App. User is responsible for keeping the Phosphorus App up to date, including, without limitation, downloading and installing any new versions and new Content that may become available after installation.
4. Reservation of Rights.
The Service is the proprietary work of Company and its licensors. Company reserves all rights not expressly granted in Section 3. User may not otherwise copy, use, sublicense, modify, adapt, or create derivative works of the Service or related documentation or remove any copyright or other proprietary rights notices. Company reserves the right to suspend or terminate access to or use of the Service if such use represents a breach of the terms and conditions of this Agreement, without prejudice to any other remedies available to Company. The rights granted in Section 3 are a license, not a sale. User has no other express or implied license or right of any kind. User will not itself, and will not permit any other person or organization to (A) directly or indirectly, in whole or in part, sublicense, distribute, lease, make available as a service bureau or otherwise allow any third parties any right or access to the Service; or (B) disassemble, decompile, decrypt, or reverse engineer, or otherwise attempt to discover or replicate source code of the Phosphorus App. User acknowledges and agrees that Company and its suppliers and providers of Content own and retain all rights existing from time to time in any jurisdiction under copyright law, patent law, moral rights law, trade secret law, confidential information law, trademark law, unfair competition law or other similar rights (“Proprietary Rights”) in the Phosphorus App, the Content, documentation, any training materials and any copies, modifications, adaptations, derivative works, and enhancements thereof, by whomever produced. User agrees that any threatened or actual breach of Company’s Proprietary Rights by User will constitute immediate, irreparable harm to Company for which monetary damages is an inadequate remedy and for which equitable remedies may be awarded by a court of competent jurisdiction without requiring Company to post any bond or any other security (or if a court requires a bond, then a bond of no more than U.S. $1,000). Except as set forth in Section 13, nothing in this Agreement limits either party’s right to any remedies at law, including, without limitation, the recovery of damages for breach of this Agreement.
5. Age Restrictions
By using the Phosphorus App, you represent and warrant that (a) you are 17 years of age or older and you agree to be bound by this Agreement; (b) if you are under 17 years of age, you have obtained verifiable consent from a parent or legal guardian; and (c) your use of the Phosphorus App does not violate any applicable law or regulation. Your access to the Phosphorus App may be terminated without warning if we believe, in our sole discretion, that you are under the age of 17 years and have not obtained verifiable consent from a parent or legal guardian. If you are a parent or legal guardian and you provide your consent to your child’s use of the Phosphorus App, you agree to be bound by this Agreement in respect to your child’s use of the Phosphorus App.
6. Objectionable Content Policy
Objectionable content (“Objectionable Content,” as further described and defined below) may not be submitted to the Company, who will moderate all content and ultimately decide whether or not to post a submission to the extent such content includes, is in conjunction with, or alongside any, Objectionable Content. Objectionable Content includes, but is not limited to: (i) sexually explicit materials; (ii) obscene, defamatory, libelous, slanderous, violent and/or unlawful content or profanity; (iii) content that infringes upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary right, or that is deceptive or fraudulent; (iv) content that promotes the use or sale of illegal or regulated substances, tobacco products, ammunition and/or firearms; and (v) gambling, including without limitation, any online casino, sports books, bingo or poker.
7. Due Care
User is not licensed or authorized to use or otherwise engage with the Service in a manner that prevents or may prevent User from exercising due care in any other activities that User may be engaging in at the time, including, without limitation, walking, going up or down stairs, crossing streets, or operating a vehicle or other machinery. User must exercise Phosphorus Appropriate vigilance and care in all respects when using or engaging with the Service to ensure User’s well-being, the well-being of those around User, and surrounding property. The information provided by the Phosphorus App is not a replacement for signage in any location. User hereby waives any right to bring any action against Company or receive damages for any damages or losses suffered by User from Company when User did not exercise the due care required under this Section or when the claim is based on the Content. User assumes full, exclusive and sole responsibility for the use of and reliance on the Service, and User further agrees and acknowledges that User’s use of or reliance on the Service is made entirely at User’s own risk. User will comply with all Phosphorus Applicable laws while using the Service.
8. Prohibited Activities
You must not, whether yourself or through any other means or person:
- interfere with or violate any third party or other user’s right to privacy or other rights, including, without limitation, copyrights and any other intellectual property rights of others, or harvest or collect personal information about users of the Service or the Company Platform without their express consent, including, without limitation, using any robot, spider, site search or retrieval Phosphorus App, or other manual or automatic device or process to retrieve, index, or data-mine;
- defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others, including, without limitation, others’ copyrights, and other intellectual property rights through Your use of the Services or the Company Platform;
- transmit or otherwise make available in connection with the Service or the Company Platform any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
- interfere with or disrupt the operation of the Service or the Company Platform, or the servers or networks that host the Company Platform or make the Service or the Company Platform available, or disobey any requirements, procedures, policies, or regulations of such servers or networks;
- sell, license, or exploit for any commercial purposes any use of or access to the Service or the Company Platform;
- frame or mirror any part of the Service or the Company Platform without Company’s prior express written authorization;
- create a database by systematically downloading and storing all or any of the content from the Service or the Company Platform;
- forward any data generated from the Service or the Company Platform without the prior written consent of Company;
- transfer or assign your Service accounts’ password, even temporarily, to a third party;
- use the Service or the Company Platform for any illegal, immoral or unauthorized purpose (including without limitation in violation of Section 6); or
- use the Site or the Company Platform for non-personal or commercial purposes without Company’s express prior written consent.
We hereby disclaim all warranties, either express or implied, and written or otherwise, as such relate to the Phosphorus App to the fullest extent permitted by law. To the extent any warranty exists under law that cannot be disclaimed, the Company, and not Apple, shall be solely responsible for such warranty. The Phosphorus App is offered to you on an as-is, where is” basis, without any other representation or warranty, express or implied. You acknowledge and agree that the Content is not reviewed by Company for accuracy or completeness and that Company has no obligation to do so.
THE COMPANY MAKES NO REPRESENTATIONS AND GRANT NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND, WITHOUT LIMITING THE FOREGOING, THE COMPANY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
Insofar as the Phosphorus App includes links to services or other applications not operated or managed by Company, Company will not be liable for any form of liability arising from Your reliance on, or in connection with, the content of such services and applications or any information provided by them, including but not limited to its completeness, accuracy, correctness or it being up-to-date.
Company may terminate this Agreement at any time, for any reason or no reason, by providing User with written (including, without limitation, electronic) notice. This Agreement will automatically terminate upon the earliest of (i) User erasing or uninstalling the Phosphorus App, (ii) User selling or transferring the device upon which the Phosphorus App is installed, (iii) User assigning any of its assets to its creditors, or voluntarily or involuntarily petitioning for the protection of bankruptcy court, or (iv) User otherwise expresses its intent to no longer utilize the Phosphorus App. Rights of termination are in addition to any other remedies available to Company, at law or in equity. Upon any termination or expiration of this Agreement, all license rights will immediately terminate, and User will immediately cease use of and uninstall the Phosphorus App. The following sections of this Agreement will survive: 2, 4–15, and 18. Company has no obligation to provide any data or information of any kind to User following termination.
11. Maintenance and Support
The Company does provide minimal maintenance or support for the Phosphorus App but not to the extent that any maintenance or support is required by applicable law. The Company, and not Apple, shall be obligated to furnish any such maintenance or support.
12. Product and Infringement Claims
The Company, and not Apple, is responsible for addressing any claims by you relating to the Phosphorus App or use of it, including, but not limited to: (i) any product liability claim; (ii) any claim that the Phosphorus App fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in this Agreement shall be deemed an admission that you may have such claims. In the event of any failure of the application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the application to you; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, if any, will be Ekos’ sole responsibility, to the extent not disclaimer herein. You acknowledge and agree that Apple shall in no way be responsible for any claim (including any related investigation, defense, settlement or discharge thereof) that the Service or your possession and use of the Service infringe any third party’s intellectual property rights.
13. LIMITATION OF LIABILITY
NEITHER THE COMPANY nor their officers, directors, employees, shareholders, agents, licensors, resellers, or representatives (collectively “Company Parties”) SHALL BE LIABLE TO YOU OR ANY RELATED THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES including, but not limited to, lost profits, lost time, lost savings, lost data, or lost goodwill or damages that may arise from use of or inability to use the Service or that may arise out of or in connection with the Service or any related functionality or information relating to the subject matter of this Agreement, whether foreseeable or unforeseeable, regardless of whether such damages are based in contract, tort (including, without limitation, negligence), warranty, strict liability, products liability, or otherwise, even if they have been notified of the possibility or likelihood of such damages occurring. Except for any direct damages for bodily injuries or tangible property damage proximately caused by Company where damages were not contributed to by User’s or any third party’s lack of due care, the maximum aggregate liability of the Company Parties in all events will be limited to the higher of the price User paid to the Store or Company for the Phosphorus App, one hUNDREd US dollars (USD$100), or the lowest amount allowable by law.
The Company shall not be obligated to indemnify or defend you with respect to any third party claim arising out or relating to the Phosphorus App. To the extent the Company is required to provide indemnification by applicable law, we, and not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any claim that the Phosphorus App or your use of it infringes any third party intellectual property right.
15. Dispute Resolution and Arbitration
Except as otherwise provided below, the parties will first attempt to resolve any dispute, claim, or controversy relating in any way to this Agreement (a “Dispute”) between User and an officer of the Company or, if the User is an organization, between officers of each party who have authority to resolve the Dispute. If any Dispute cannot be settled in this manner within 60 days of written notice being received by the other party, the Dispute will be exclusively settled by arbitration in accordance with the Commercial Arbitration Rules of American Arbitration Association (“Rules”) in Atlanta, Georgia in the United States of America, with judgment upon the award rendered by the arbitrator to be entered in any court of competent jurisdiction. Any arbitrator selected pursuant to the Rules will have a background or training in contract and intellectual property law. The arbitrator may award attorneys’ fees and costs to the prevailing party. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim, conservatory or equitable relief, without breach of this agreement to arbitrate and without any abridgment of the powers of the arbitrator. Company and User acknowledge and agree that Apple is a third party beneficiary of this Agreement and has the right to enforce this Agreement against each.
16. Changes to the Service or this Agreement
Company may, either partially or in its entirety and without being obligated to provide prior notice, modify, adapt, or change the Service’s features, the user interface and design, the extent and availability of Content, and any other aspect related to the Service.
17. Changes to this Agreement
Company may modify this Agreement from time to time. Your continued use of the Service after this Agreement has been modified signifies your agreement to the updated Agreement. If you do not agree to the updated Agreement, you must discontinue all further use of the Service and uninstall the Phosphorus App. If fundamental changes are introduced, a notice will be posted in the Phosphorus App.
User may not assign this Agreement or any rights and obligations under this Agreement in whole or in part. Any attempted assignment will be void and of no effect. Company may assign this Agreement at will. The terms and conditions of this Agreement will inure to the benefit of and be binding upon their respective successors and assigns of the parties. No delay or failure in exercising any right and no partial or single exercise thereof will be deemed to constitute a waiver of such right or any other rights under this Agreement. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will be valid and enforceable to the fullest extent permitted by applicable law. Should any provision of this Agreement require interpretation by a court or arbitrator, the parties agree that the court or arbitrator interpreting or construing the same will not apply a presumption that this Agreement will be more strictly construed against one party than the other. This Agreement is governed by and construed in accordance with the laws of the State of Georgia, in the United States of America, without regard to its rules regarding conflict of laws, the application of UCITA, or any international conventions on the transfer of technology or goods. If you send SMS messages through the Service, you acknowledge that standard text messaging rates or other carrier charges may apply to such use. If you authorize the Company to access your address book on your iOS product, you acknowledge and agree that the Company may access and use such data to invite share job with your contacts.
19. User Consent and Warranties
By utilizing the Phosphorus App you agree to transact business with Company electronically, and you represent and warrant that you are more than 17 years of age, are not located in or a citizen of a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, are is not listed on any U.S. Government list of prohibited or restricted parties, and will not export the Phosphorus App itself or use the Phosphorus App to export any information in violation of the laws of the United States of America.