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The following are the “Terms and Conditions” which govern the delivery of the technology services provided by Phired Up Productions, LLC, a limited liability company organized and existing under the laws of the State of Indiana, with its head office located at 695 Pro-Med Lane #205, Carmel, Indiana 46032 (“Phired Up”), to the customer noted in the applicable Services Agreement (“Customer”) which is executed by and between the parties and references these Terms and Conditions.
Section 1: Services
The “Services” provided under these Terms and Conditions will be those set forth in any mutually agreed Services Agreement, order form, statement of work or other document executed by Phired Up and Customer referencing these Terms and Conditions (each, a “Services Agreement”). The Services may include one or more of the following Phired Up technology services: ChapterBuilderTM, CampusDirectorTM, MyVoteTM, PNM CompanionTM. Each Services Agreement shall be governed by these Terms and Conditions. Customer warrants that the individual executing the Services Agreement is a duly authorized representative of Customer.
Section 2: Payment for Services
Services fees are invoiced in full upon receipt of an order, with payment terms of Net 30, except as otherwise specified on the applicable Services Agreement. The fees specified in the Services Agreement are the total fees and charges for the Services and will not be increased during the term of the Services Agreement except as the parties may agree in writing. Customer is responsible for all applicable federal, state and local sales, use or other taxes due on the Services rendered hereunder, except for taxes based on Phired Up’s income. If any change affects the time or cost of performance under the applicable Services Agreement, an adjustment in the time and/or compensation to be paid thereunder shall be agreed to in writing by the parties before such modification shall be effective.
Section 3: Term and Termination
These Terms and Conditions shall remain in effect from the effective date specified in the Services Agreement through the completion of the Services contemplated in the Services Agreement. Each Services Agreement, with respect to the Services, shall become effective on the effective date specified in the applicable Services Agreement and shall expire on the date that Services are completed thereunder (“Services Completion Date”). Either party may terminate the Services Agreement upon written notice given to the other party, if the other party materially breaches the Services Agreement and fails to cure such breach within sixty (60) days following receipt of notice describing the breach. Upon termination by Customer for Phired Up’s material breach, Customer shall be liable only for payment for the Services rendered through the termination date and shall receive from Phired Up a pro-rata refund of any unused, prepaid fees for Services.
Section 4: Provision of Services
Phired Up will provide Services based on a schedule mutually agreed to by the parties. Customer is authorized to provide access to the Services to Customer’s employees, consultants, contractors, and end users (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these Terms and Conditions; and (b) for whom access to the Services has been purchased hereunder. Phired Up reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Phired Up's services to its customers; (ii) the competitive strength of or market for Phired Up's services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable law. Phired Up may, directly or indirectly, suspend, terminate, or otherwise deny Customer's, or any other person's, access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Phired Up receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Phired Up to do so; or (b) Phired Up believes, in its discretion, that: (i) Customer has failed to comply with any term of these Terms and Conditions, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms and Conditions; (ii) Customer is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) these Terms and Conditions expires or is terminated. This Section 4 does not limit any of Phired Up's other rights or remedies, whether at law, in equity, or under these Terms and Conditions.
Section 5: Use Restrictions
Customer shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by these Terms and Conditions. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as these Terms and Conditions expressly permits: (a) copy, modify, or create derivative works or improvements of the Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; (d) bypass or breach any security device or protection used by the Services or access or use the Services other than by an authorized user through the use of his or her own then valid access credentials; (e) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services or Phired Up's provision of services to any third party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, EULA, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services, including any copy thereof; (h) access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Phired Up customer), or that violates any applicable Law; (i) access or use the Services for purposes of competitive analysis of the Services, the development, provision, or use of a competing software service or product or any other purpose that is to the Phired Up's detriment or commercial disadvantage; or (j) otherwise access or use the Services beyond the scope of the authorization granted under these Terms and Conditions. The Services may enable you to add links to websites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Phired Up is not responsible for any third-party websites or third-party content provided on or through the Services and you bear all risks associated with the access and use of such websites and third-party content, products, and services.
Section 6: Intellectual Property Rights
Customer has and will retain sole and exclusive right, title and interest in and to all Customer Confidential Information and Customer Materials (collectively, “Customer Property”), including any and all intellectual property rights therein. Phired Up has and will retain sole and exclusive right, title and interest in and to all Phired Up Confidential Information, products, services, and all Phired Up technology, platforms, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing, including any and all intellectual property rights therein, (collectively, “Phired Up Property”). However, Phired Up’s ownership rights do not extend to Customer Property embedded or incorporated in the foregoing items.
Section 7: Exclusion of Warranties
THE SERVICES ARE PROVIDED “AS IS.” PHIRED UP EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN OR SUITABILITY, OR QUALITY OF SERVICE. WITH RESPECT TO THE SERVICES OR ANY GOODS, SERVICES OR OTHER MATERIALS DELIVERED BY PHIRED UP, PHIRED UP DOES NOT GUARANTEE IN ANY WAY THAT THE RESULTS OF ANY ANALYSIS AND REPORTS IT PRODUCES ARE ACCURATE. NO WARRANTIES SHALL ARISE UNDER THESE TERMS AND CONDITIONS FROM COURSE OF DEALING OR USAGE OF TRADE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NONE OF PHIRED UP’S REPRESENTATIONS, WARRANTIES OR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS SHALL APPLY WITH RESPECT TO THIRD PARTY DATA OR THIRD-PARTY PLATFORMS. PHIRED UP MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD-PARTY DATA, INCLUDING THE ACCURACY OR LEGALITY OF ANY THIRD-PARTY DATA. ALL SERVICES WITH RESPECT TO THIRD PARTY PLATFORMS AND THIRD-PARTY DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND MAY BE DISCONTINUED AT ANY TIME BY PHIRED UP. PHIRED UP DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT PHIRED UP WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT PHIRED UP DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
Section 8: Limitation of Liability
NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS TO THE CONTRARY, THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER ARISING OUT OF THESE TERMS AND CONDITIONS FOR THE SERVICES PERFORMED HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO PHIRED UP UNDER THE APPLICABLE SERVICES AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR DATA) WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 8 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS AND CONDITIONS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Phired Up is willing to enter into these Terms and Conditions and the Services Agreement and perform Services for Customer only in consideration of and in reliance upon the provisions of these Terms and Conditions limiting Phired Up’s exposure to liability, including but not limited to the provisions contained above. Such provisions constitute an essential part of the bargain underlying these Terms and Conditions and the Services Agreement and have been reflected in the consideration specified therein.
Section 9: Customer Data
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer by or through the Services. For the avoidance of doubt, Customer Data does not include data and information related to Customer's use of the Services that is used by Phired Up in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services or any other information reflecting the access or use of the Services by or on behalf of Customer. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PHIRED UP HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA. Customer has and will retain sole responsibility for all Customer Data, including its content and use. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Phired Up to provide the Services and to enforce these Terms and Conditions and exercise Phired Up's rights and perform Phired Up's obligations hereunder. Client agrees and acknowledges that Phired Up has the right to retain and to use Customer Data, but has no obligation to retain Customer Data and that Customer Data may be irretrievably deleted after ninety (90) days following the termination of the service Agreement.
Section 10: Customer Indemnification
Customer agrees to indemnify, defend, and hold harmless Phired Up and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to: (a) Customer’s use or misuse of the Services or Customer’s breach of these Terms and Conditions; or (b) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer or any third party on behalf of Customer, in connection with these Terms and Conditions.
Section 11: Confidentiality
Each party may have access to information that is confidential and proprietary to the other party (“Confidential Information”). “Confidential Information” shall include any and all technical and non-technical information of each party, including but not limited to (a) patent and patent applications, (b) trade secrets, and (c) proprietary information–mask works, ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and any other information of a similar nature. Each party agrees not to make Confidential Information available in any form to any third party except to such party’s employees, contractors, agents or service providers who are required to know to allow such party to exercise its rights or perform obligations under these Terms and Conditions or to use the Confidential Information for any purpose other than in the performance of these Terms and Conditions. Each party agrees to take all reasonable steps to ensure that Confidential Information is secure and not disclosed or distributed by such party’s employees or agents in breach of this Section 11. Upon request of the disclosing party, the receiving party will destroy the disclosing party’s Confidential Information, other than archival back-up copy. The obligations of this provision shall not apply to any such Confidential Information which, after the date hereof, becomes publicly available without a breach of these Terms and Conditions, or is disclosed to a third party without similar restriction on the third party’s rights, or is already known in the relevant industry. This Section 11 will survive termination of these Terms and Conditions and the applicable Services Agreement.
Section 12: Assignment
Neither party may assign or delegate its rights and obligations under these Terms and Conditions and the Services Agreement to any third party without the prior consent of the other party to these Terms and Conditions (which consent shall not be unreasonably withheld); provided, however, that a “change of control” transaction shall not be deemed assignment or delegation under these Terms and Conditions.
Section 13: Force Majeure
Neither party shall be deemed in default or otherwise liable under these Terms and Conditions and the Services Agreement due to its inability to perform its obligations by reason of any fire, earthquake, flood, snowstorm, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default hereunder), or any failure or delay of any transportation, power, or communications system or any other or similar cause beyond that party’s reasonable control. Should any Services need to be postponed due to a Force Majeure event, the Customer is responsible for rescheduling and a new date for Services must be rescheduled within one (1) year of the original scheduled date. If any on-site or in-person Services are required to be changed to digital delivery due to health and safety concerns or travel restrictions or obstacles, invoicing will be revised to reflect an appropriate reduction in cost in compliance with company policies.
Section 14: Governing Law and Venue
These Terms and Conditions shall be governed by and construed under the laws of the State of Indiana, exclusive of its choice of law rules, as such law applies to agreements between Indiana residents entered into and to be performed within Indiana, except as governed by federal law. Any controversy or claim arising out of or in any way connected with these Terms and Conditions or the Services Agreement, or the alleged breach thereof shall be brought in the state and federal courts located in the State of Indiana. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph.
Section 15: Entire Agreement
These Terms and Conditions, together with all applicable Services Agreement executed by the parties, constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment or waiver of any provision of these Terms and Conditions shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of these Terms and Conditions, and all such terms or conditions shall be null and void. If any provision of these Terms and Conditions is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable.
Last Updated: March 17, 2024