Effective as of: October 2021
Prior update: July 2021
Thank you for your interest in the services offered by Phyla Technologies Inc. (“Phyla”, “Company”, “we”, “us”, “our”). Before using any of our Services, please read the following carefully.
These Terms of Service (the “Agreement”) constitute a binding contract between yourself (“user”, “you”, “your”) and Phyla regarding your use and access to our Websites and/or our Services.
IF YOU ARE AN INDIVIDUAL UNDER THE AGE OF 13 YEARS OLD, YOU ARE NOT AUTHORIZED TO USE ANY OF OUR SERVICES. IF YOU ARE A CANADIAN RESIDENT UNDER THE AGE OF 18, YOU MAY USE OUR SERVICES ONLY AFTER OBTAINING THE AUTHORIZATION OF A PARENT OR LEGAL GUARDIAN. ANY SUCH PARENT, OR LEGAL GUARDIAN IS RESPONSIBLE TO PHYLA AND IS LEGALLY BOUND TO THIS AGREEMENT AS IF THEY HAD AGREED TO THE TERMS OF THIS AGREEMENT THEMSELVES. IF YOU ARE NOT A CANADIAN RESIDENT, YOU MAY ONLY USE OUR SERVICES IF YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT IN YOUR APPLICABLE JURISDICTION.
Regarding your Personal Information
If you’ve come from an outside website, or an App store
The following definitions apply to this Agreement:
● “App” means the software program currently known as ‘Phyla Health’ made available by Phyla Technologies Inc., or such other name as we may designate from time to time;
● “Content” means all information, promotions, offers, images, videos, and other content offered as part of our Services;
● “Microbiome Test Kit” means the test kit sent to you after your order is placed through our Services, and with which a gut microbiome sample is collected and sent back to one of our Laboratory Partners for analysis.
● “Gut Health Information” means information regarding your microbiome (including, but not limited to, fecal, buccal, genital, and skin microbiome) generated through processing of the samples you collected with a Microbiome Test Kit;
● “Mobile Services” means our curated health information platform and personalized recommendations through our App and other mobile services, as may be amended from time to time;
● “Payment Information” means financial information, banking details and transaction information related to your use of the payment processing services made available through our Payment Processing Services Provider (defined below);
● “Registration Information” means information about you by Phyla when you register through our Mobile Services or Websites;
● “Representatives of Phyla” means Phyla and its respective affiliates, directors, officers, employees, or agents;
● “Self-Reported Information” means all information about you, including personal traits, gut history status, medicine and supplement use, disease conditions, other health-related information, diet, physical activity status, sleeping status, lifestyle status, ethnicity, family history, and other information that you may choose to provide to Phyla voluntarily through surveys, forms, or features while signed in to our Services;
● “Services” means, collectively, our Websites, Mobile Services, Content, all future improvements and additions thereto, and all other products and services Phyla offers or may offer you;
● “Websites” means our website, https://www.phyla.ai, associated sites, and transactional pages, as they may be amended or modified from time to time; and
● “User Content” means messages, feedback, suggestions for improvements and comments which we receive from users and which may be displayed on our Websites, social media accounts, or otherwise through our Services.
2. Refund and Replacement Policy
If you are unsatisfied with one of our products we are happy to provide a full refund for products purchased in the last 30 days if the product is unopened and/or untampered with. Please note that we do not accept product returns.
To request a refund, send us an email at: firstname.lastname@example.org or give us a call at (telephone number coming soon) and we’ll be happy to assist you. We will apply the refund to your original method of payment once your return has been processed, which can take between 1 to 3 weeks. It may take some time for the refund to be reflected in your bank account, depending on your financial institution, debit or credit card provider.
Replacing a product
If the product you ordered arrives damaged or is the wrong item, and you’d like to obtain a replacement product, send us an email at: email@example.com or give us a call at (telephone number coming soon). Please note that we will only provide replacements for products purchased in the last 30 days.
3. Formation of this Agreement, Consent, and changes to this Agreement
Change to Agreement
We strive to always improve our Services. In keeping with that mission, Phyla reserves the right to amend this Agreement at any time, without prior notice to you, including the right to change, modify, add or remove terms. In the event of a change which Phyla deems material, if you have provided us with your email address and have consented to our communicating with you, we will contact you when this Agreement is updated. While our Websites will display clearly when this Agreement is updated, we recommend that you consult it from time to time in order to remain updated on our latest modifications. Any modifications we make to this Agreement will become effective after ten (10) days. If you continue to use our Services after these ten (10) days, we will presume that you have accepted our modified Agreement.
Phyla reserves the right to modify or discontinue, temporarily or permanently, the Services or any part thereof without prior notice to you. You agree that Phyla will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
a) If you are under the age of 13 you are not authorized, whether you have the authorization of a parent or guardian, and regardless of whether you have registered, to use any of our Services. If you are a Canadian resident under the age of 18, you may use our Services only after obtaining the authorization of a parent or guardian, regardless of whether you have registered. Any such parent, or legal guardian is responsible to Phyla and is legally bound to this Agreement as if they had agreed to the terms of this Agreement themselves. If you are not a Canadian resident, you may only use our Services if you are of the legal age to enter into this Agreement in your applicable jurisdiction;
b) As further detailed herein, commercial use or further distribution of our Services is expressly prohibited; and
c) You may not use our test kits, including the Microbiome Test Kit, to provide, and Phyla will not accept from you, a stool sample, or a stool sample for anyone else if (i) you are not of legal age in your province, state, or territory of residence to form a binding contract with Phyla, or (ii) you are a person barred from receiving our Services under the laws of the jurisdiction in which you are a resident or from which you use the Services.
4. Intended Use of our Services
Phyla’s Services provide its users with curated information related to health topic(s) based on each individual user’s interests, characteristics, Gut Health Information and Self-Reported Information. While you can choose to share your information with your health professional, Phyla’s Services should NOT be used to diagnose, treat, mitigate or prevent diseases or conditions.
Our Services provide simple tools to enable the self-management of your lifestyle. In this context, self-management refers to the fact that some of our Mobile Services, including our App, are dependent and based upon the Self-Reported Information that you provide us independently in the mobile application. You understand that our curated health information platform and recommendations depend upon accurate and regularly updated Self-Reported Information.
The information provided through our Services is meant solely for informational and educational purposes and does NOT provide information informing you of options for treatment, diagnosis, prevention or mitigation of a disease or condition, and will NOT predict risk of diseases or conditions. Our reports are designed so that you can track your health information, and provide them to your qualified healthcare provider should you choose to.
5. Not Medical Advice
IF YOU ARE AT RISK OF PROBLEMS RESULTING FROM CHANGES IN YOUR DIET OR LIFESTYLE, CEASE ALL USE OF THE SERVICES BEFORE HAVING CONSULTED WITH YOUR PHYSICIAN OR QUALIFIED HEALTHCARE PROFESSIONAL. USE OF THE SERVICES, AND ANY CONTENT OR PRODUCTS OFFERED BY PHYLA ARE AT YOUR OWN RISK. SECTIONS 5 AND 7 OF THIS AGREEMENT SHOULD BE READ CAREFULLY IF YOU ARE THINKING, AND/OR HAVE ALREADY ORDERED, A MICROBIOME TEST KIT.
The information provided through our Services is intended solely for informational and educational purposes and is not a substitute for the medical advice provided by a physician or other qualified healthcare professional. Phyla does not assume any fiduciary or similar obligations to you as a result of using our Services, and will not be considered a trustee or a custodian of your Gut Health Information. Much of the information we report has not been clinically validated, and the technology we and our Laboratory Partners use, which is the same technology used in the research community, has not been widely used for clinical testing to date. Therefore, and as a result of the current state of microbiome knowledge and understanding, you understand that our Services are for informational and educational purposes only.
Our Services and the Content cannot be used for the purpose of treating, diagnosing, or the alleviation of health issues or diseases. The Services provided by Phyla and any Content or products offered by Phyla DO NOT replace PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. You should always seek the advice of your physician or other health care provider with any questions you may have regarding diagnosis, cure, treatment, mitigation, or prevention of any disease or other medical condition or impairment or the status of your health.
If you suffer from physical or psychological complaints and are not under medical treatment, it is imperative that you see a doctor and do not delay seeking medical advice because you are accessing information provided through our Services. The medical causes of digestive problems can only be determined by a PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROFESSIONAL.
You should always speak to your physician or qualified healthcare professional before starting any new approach to managing your health, including your diet, your intake of vitamins and minerals, your exercise routine and other therapeutic modalities.
6. Payment Processing, Registration and Fees for Services
Payment processing services for Phyla are provided by payment services providers as Phyla may choose from time to time (collectively referred to as the "Payment Processing Services Provider"). You hereby authorize Phyla to share with the Payment Processing Services Provider that financial information, banking details and transaction information related to your use of the payment processing services and our Mobile Services. You also agree that Phyla is not responsible for the use or misuse of such financial information, banking details and transaction information by the Payment Processing Services Provider or any third party.
Price and Payment
Prices listed on our App from Phyla, or a vendor in the United States are in United States dollars. Product prices listed on our App from vendors in Canada are in United States dollars. Prices may not include applicable tax and shipping charges. Taxes and shipping charges may be added at checkout and will be payable by you along with the product price (collectively, an “Order”). Payment of the fee payable on checkout of your Order only entitles you to access the services, and/or obtain the products that are shown in the respective offer presentation.
For Orders paid by way of credit or debit card, you will be charged at the time of placing your Order. Phyla uses a third party payment processor to effect charges onto your debit or credit card. You consent to the collection and use of your information (including, if applicable, personal information) by such payment processing service as necessary to process your payments. We reserve the right to change, or to stop accepting, any permitted payment method at any time and at our sole discretion. You agree that Phyla may charge your payment card for any Order placed and for any additional amounts (including any taxes) as may be applicable in connection with your Order.
You are solely responsible to ensure that all of your billing information is current, complete, and accurate. Phyla will provide you with an online or emailed billing summary statement which you may review, save, or print at your discretion. This is the only billing statement that will be provided by us.
Phyla or vendors listed on our App are under no obligation to fulfill your Order at the incorrect price. Prices for the Vendor’s products in the Vendor’s physical location and on our App may be different. Any such differences will not entitle you to a refund or a reduction in price of your Order beyond the policy detailed at Section 2 of this Agreement. Product prices, shipping charges and any other fees are subject to change at any time at Phyla or the vendor’s discretion.
You will need to create an account and register to use some of our Services, including accessing some of our Mobile Services and obtaining a Microbiome Test Kit. By registering for Phyla’s services, you agree to our Terms and Conditions. Some products and services within the scope of our Services, including the Microbiome Test Kit can only be obtained for a fee and by completing an Order. These chargeable products and services are clearly marked on our App and Websites.
By registering on our App or Websites, you are guaranteeing to us that you will provide us with accurate and up-to-date information about yourself, to the best of your knowledge. You understand that providing us with false information about yourself constitutes a violation of the present Agreement. While we will maintain our Websites, our App and their respective Content and other services, you warrant to us that you will:
● maintain the confidentiality of your chosen passwords and other identification information;
● be responsible for the activity you partake in under your username while using and/or accessing our Services; and
● that you will log out of your account when you are done using and/or accessing the Services.
If you become aware that your username or your password has been used in an unauthorized manner, you agree that you will notify us immediately by emailing us at firstname.lastname@example.org. You are entirely responsible for any losses that might occur before contacting us about the suspected unauthorized use.
7. Risks and Considerations Regarding our Services
Concerning our Laboratory Partners
Depending on the quality of the sample you provide us with such test kit, our Laboratory Partners may not be able to process your sample, and the laboratory process may result in errors. Our Laboratory Partners may also not be able to process your sample if your sample does not contain sufficient material, or the results from processing do not meet our standards for accuracy. Even when meeting high standards, a small, unknown fraction of the data generated during the laboratory process may be uninterpretable or incorrect (referred to as "Errors"). As this possibility is known in advance, users are not entitled to refunds where these Errors occur beyond our return and replacement policy available for 30 days after your purchase.
Gut Health Information, you, and your Health Professional
You understand that you should not change your health behaviors solely on the basis of information provided by our Services. If you plan to act upon your Gut Health Information or other information that Phyla provides, make sure to discuss your plan with a physician or other qualified health care provider.
The state of the understanding of data like the Gut Health Information provided by Phyla is rapidly evolving and at any given time Phyla can only comprehend part of the picture of the role of microbiomes on our health. Only a physician or other qualified healthcarehealth care provider can assess your current state of health or disease. Reliance on any information provided by Phyla, Phyla employees, our Content, or User Content is solely at your own risk.
Gut Health Information Privacy
Microbiome research is not comprehensive, and you understand that Gut Health Information you share with others could be used against your interests. For that reason, you should be careful about sharing your Gut Health Information with others. Currently, very few businesses or insurance companies request Gut Health Information like the one produced by Phyla, but this could change in the future. You may want to consult a lawyer to understand the extent of legal protection of your Gut Health Information before you share it with anybody.
Gut Health Information that you choose to share with your physician or other qualified healthcarehealth care provider may become part of your medical record and therefore be accessible to other health care providers and/or insurance companies in the future. Gut Health Information that you share with your family, friends or employers may be used against your interests. Even if you share Gut Health Information that has no or limited meaning today, that information could have greater meaning in the future as new discoveries are made. If you are asked by an insurance company whether you have learned Gut Health Information about health conditions which affect you and do not disclose this to them, this may be considered to be fraud.
8. Prohibited use of our Services
You may only use our Services for lawful purposes and in accordance with the present Agreement. Phyla reserves the right, upon detecting any and all prohibited use(s) detailed below, to intervene and/or bar such prohibited use(s). For greater clarity, a violation of any of terms of this Agreement, including those below, may constitute grounds for the termination of your rights to use or access the Services.
Phyla agrees that you may use the Services, and provides you with related licenses, on the condition that you do not use any of the Services to:
a) Post, upload, publish, submit or transmit any information or other material that (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity, privacy or data governance; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil, criminal or statutory liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances (including but not limited to activities that promote or provide instructional information regarding the manufacture or purchase of illegal weapons or illegal substances;
b) Access, tamper with, or use non-public areas of the Websites, our computer systems or those of our Laboratory Partners, or the technical delivery systems of either Phyla, our ISP or our Laboratory Partners;
c) Attempt to probe, scan, or test the vulnerability of any our systems or networks or breach any security or authentication measures;
d) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented which Phyla, our ISP, or any other third party (including another user) to protect the Services or User Content;
e) Use “deep-link”, web collectors, indexing or page-search robots, any other similar devices, algorithms, programs and automated process or equivalent manual processes, to access all or part of the Services or User Content to acquire, copy, reproduce or circumvent in any way whatsoever the navigation or presentation structure of the Services, or to obtain or attempt to obtain any materials, documents or information which has not purposely been made available to you through our Services or User Content or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera);
f) Run or send any unsolicited or unauthorized advertising, listserv, mail list (or any form of auto-responder), promotional materials, email, junk mail, spam, chain letters, or other form of solicitation. This includes contacting anyone who has asked not to be contacted, or making unsolicited contact with Phyla subscribers for any commercial purpose;
g) Use any meta tags or other hidden text or metadata utilizing Phyla’s trademarks, logos, URL or product names;
h) Use the Services for any commercial purpose or the benefit of any third party or in any manner not permitted by our Terms and Conditions;
i) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services we make available or provide to send altered, deceptive or false source-identifying information;
j) Probe, trace, seek or reverse engineer any information belonging to Phyla, our Laboratory Partners, or that of any other user, including but not limited to information which is not owned by you or Personal Information belonging to someone else than you. Should you happen upon such information by accident, you agree to delete the information and not to reveal any of it to others;
k) Copy or store any significant portion of the Services;
l) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading (i.e., “DDoS”), flooding, spamming, or mail-bombing the Services;
m) Collect, process, or store any information from the Services from other users of the Services without their express prior permission;
n) Impersonate or misrepresent your affiliation with any person or entity;
o) Violate any applicable law or regulation;
p) Stalk, dox, or otherwise harass anyone; and/or
q) Post false or irrelevant User Content, or repeatedly post the same or similar User Content.
9. Phyla Mobile Application
Installing and using our App
Be advised that, by activating our mobile application on your device (this includes updates and upgrades of the application), the following may occur:
● your device will communicate with our servers to provide the functionalities and Services (as described on the platform you used to download the mobile application);
● some of your preferences with respect to mobile applications or data storage on your device may be affected;
● services which you use in link with your mobile device, such as your telecommunications provider, and credit card processing company may charge you fees in relation to your use of the Services we offer you. You accept that these fees are at your expense and that you are responsible for any resulting charges.
If you download our App from the Apple App Store
If you download our App from the Apple App Store to your mobile device, you agree to use the Apple App Store only (a) on an Apple branded product that runs iOS (Apple’s proprietary operating system software); (b) as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions available here.
Furthermore, you acknowledge that:
● this Agreement is concluded between you and Phyla, and not with Apple, and Apple is not responsible for our App or the Content thereof;
● our App is for your sole use and, when accessed on any Apple device that you own or control, be used as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions; and
● Apple has no obligation whatsoever to furnish any maintenance and support services with respect to our App, and Phyla shall be solely responsible for any maintenance and support services with respect to same, to the extent they are required by applicable law.
If you download our App from the Google Play Store
If you download our App from the Google Play Store to your mobile device, you acknowledge that:
● our Terms and Conditions are concluded between you and Phyla, and not with Google, and that Google is not responsible for our App or the Content thereof;
● Google has no obligation whatsoever to furnish any maintenance and support services with respect to our App, and Phyla shall be solely responsible for any maintenance and support services with respect to defects and performance issues, to the extent they are required by applicable law.
10. User Content
User Content License
Some of our Services will allow you to send us messages, feedback, suggestions for improvements, comments, and data which may be displayed on our Websites and Services. Unless otherwise specified, you retain copyright and other rights you already hold under User Content that you create and submit, post, or display on or through our Services. However, by submitting, posting, or displaying User Content through our Services, you give Phyla, its partners, sublicensees as well as our successors and assigns a perpetual, irrevocable, worldwide, royalty-free and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, reproduce, edit, reformat, and create derivative works (each in any medium now or hereinafter invented) from any User Content that you submit, post, or display on or through the Services. You acknowledge that this license allows Phyla to make your User Content available to third parties including other users, and our business partners, for them to view and use your User Content on their computer or mobile device.
You further acknowledge that Phyla, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your User Content over various public networks and in various media; and (b) make such changes to the User Content you submit, post, or display as are necessary to conform and adapt that content to the technical requirements of connecting networks, devices, services, or media. You acknowledge and agree that the above license granted to Phyla shall permit Phyla to take these actions.
Furthermore, before submitting, posting or displaying any User Content through the Services, you:
● waive any moral right, or similar right, which you may have in the User Content;
● represent to us that the User Content you are submitting is original, that it belongs to you exclusively, or that you have obtained the rights holder’s written permission to submit the User Content and to grant the necessary licenses to Phyla and third parties;
● represent to us that the User Content otherwise does not infringe on intellectual property rights of any other party, including Phyla’s; and
● represent to us that the User Content does not contain any libelous, injurious, or defamatory material, nor does it violate a third party’s privacy or publicity rights, or otherwise be illegal.
Removing User Content
You acknowledge that Phyla does not pre-screen User Content, but that Phyla and its representatives will have the right (but not the obligation) in their sole discretion to refuse or remove any User Content that is available via the Service, immediately and without notice, should it violate our Terms and Conditions or be deemed by Phyla to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content. Finally, be advised that:
● Phyla cannot be held liable for any loss, corruption, or damage to your User Content; and
● User Content is non-confidential.
If, while visiting our Websites, or using our Services you encounter User Content which you believe violates our Terms and Conditions, please contact Phyla at email@example.com.
Waiver of Property Rights
You understand that you shall acquire no rights in any research or commercial products that may be developed by Phyla or its collaborating partners from de-identified data. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your de-identified data.
11. Electronic Mail
Electronic mail which you send or receive is neither protected, nor is it confidential. You understand that these messages may be lost, intercepted, or interfered with as is possible with physical mail. Understanding that no electronic mail system can be without fault, Phyla will not be responsible for damages you may suffer through the exchange of electronic mail or messages, whether they be generated by you, Phyla, our partners, or respective employees, affiliates, or agents.
12. Intellectual Property and Hyperlinks
The text, images, photographs, information, audio and video files, software, and code which we make available through our Services may be protected or can be protected by applicable laws such as copyright, patent and trademark. By agreeing to this Agreement, you acknowledge that such content belongs to Phyla, its partners, affiliates, licensors, or third parties. By the present Agreement, Phyla hereby provides you with a personal, non-exclusive, and non-transferable license to use and display the Websites, our Mobile Services including our App, and their respective Content on your personal computer, mobile device, or similar device for personal, non-commercial use only. While you may make a single backup physical copy of our Content for your own purposes, such backup cannot in any way modify or remove any intellectual property safeguards attached to the content itself. For purposes of clarity, such safeguards can include copyright notices, trademark notices, or watermarks. You may not modify, reproduce, distribute, transmit, disseminate, represent, network, market, publish, license, perform publicly, download, create derivative works based on, sell, or post to the internet any portion of our Services. As stated above, the foregoing paragraph entitled “Copyright” does not apply to your own User Content which you legally upload to our Services.
Our Services contain built in, or otherwise integrated, software. This includes our App. This software, including all files, images, and other data it contains or generates is protected by copyright and other applicable rights. This software belongs to Phyla, its partners, or licensors. You acknowledge that you have no right, title or interest in the software, which is built into, installed or integrated with our Services, or that you may have downloaded from the Websites or an app store. In addition to the limitations included above, you may not, and may not assist anyone to:
● Use, reproduce, scrape, frame, modify, adapt, translate, download, create derivative works based on, or transmit the software or any part of it;
● Sell, license, rent, distribute, transfer, or otherwise allow access to the software;
● Modify, cover, or otherwise remove any trademark or copyright notice which is included in the software and any part thereof;
● Decompile, decrypt, reverse engineer or extract any part of the software made available through our Services.
Our Services may contain names, words, titles, icons, graphic elements, or designs, as well as sentences or icons which may be trademarks currently owned by either Phyla, used with the authorization of our partners and other third-party owners, or in accordance with applicable laws (“Trademarks”).
You are expressly prohibited from reproducing or using all or part of any Trademarks, in any way without the express written authorization of Phyla, or their respective owners.
Third Party Content and Hyperlinks
Under no circumstances will Phyla be liable in any way for any content or materials of any third parties (including User Content), including, but not limited to, for any errors or omissions in any content, any loss or damage of any kind incurred as a result of the use of any such content, or personal injury, death or property damage that may result from your use of the third-party content on the Services.
While using our Services, you may come across links to other websites which we make available to you (“Hyperlinks”). These Hyperlinks do not entail an endorsement or approval by Phyla or its partners as to their respective content. Nor does it mean that Phyla endorses or approves of their products, services, or publications which you may find thereon. Be aware that the content you encounter by following Hyperlinks is not subject to our Terms and Conditions and, therefore, Phyla disclaims any liability for damages you may incur by clicking and using Hyperlinks.
Certain third party content may be governed by separate terms and conditions, and by agreeing to this Agreement, you further acknowledge receipt of and your agreement to such separate terms and conditions.
13. Services are Non-Commercial
Phyla provides the Services for the personal use of individual users only. Unless expressly agreed by an authorized representative of Phyla, the Services may not be used in connection with any commercial endeavors. Organizations, companies, and/or businesses are not permitted to, and should not use the Services.
Illegal and/or unauthorized uses of the Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Websites or App may be investigated, and appropriate legal action will be taken, including without limitation, civil, criminal, and injunctive redress.
14. Warranty, Liability, and Indemnification
Disclaimer of Warranties
YOU EXPLICITLY AGREE THAT YOUR USE OF AND ACCESS TO THE SERVICES (OR ANY CONTENT HOSTED ON OUR SERVICES, INCLUDING USER CONTENT) IS AT YOUR OWN RISK AND PERIL. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR PERSONAL USE. PHYLA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THEIR AVAILABILITY AT ALL TIMES, MERCHANTABILITY OR YOUR SATISFACTION OF THEIR QUALITY, SUITABILITY OR FITNESS TO A PARTICULAR USE AND/OR PURPOSE, TITLE, AND NON-INFRINGEMENT. YOU FURTHER ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE DEVICE, OR ANY OTHER DAMAGE THAT MAY RESULT FROM YOUR ACCESS OR USE OF THE SERVICES.
For greater clarity, and in addition to the above, Phyla makes no warranty regarding the Services, as well as User Content (“Phyla Offering”), whether express or implied, including but not limited to:
● Any warranty or guaranty that the Phyla Offering will meet your requirements;
● That defects or errors in the Phyla Offering will be corrected;
● That the operation of the Phyla Offering will be uninterrupted, timely, secure, integral, or error-free;
● That the Phyla Offering will be legal or available in all jurisdictions or countries where it can be accessed, at all times;
● That the Phyla Offering is free of viruses or other harmful components;
● That the results that may be obtained from the use of the Phyla Offering will be accurate or reliable;
● That the quality of any products, services, information or other material purchased or obtained by you through the Phyla Offering will meet your expectations.
Limitation of Liability
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATION OF SOME TYPES OF DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW LIMITATIONS MAY NOT APPLY TO YOU.
Within the limits allowed by applicable laws, you acknowledge and agree that Phyla and its respective affiliates, directors, officers, employees, or agents, shall not be liable for any loss or damages, including direct, incidental, indirect, punitive, exemplary, consequential, or special damages, including but not limited to suffering and emotional distress, harm to business or reputation, and loss of information, profits, income, salary, or other remuneration resulting from: (i) the use or the inability to use the Services; (ii) use of or reliance on performance our Services even if you or another informed the Representatives of Phyla of the possibility of this damage; (iii) your failure to keep your password or account details secure and confidential; (iv) unauthorized access to, use of, alteration of or destruction of your transmissions of data, including your personal information; (v) the improper authorization for the Services by someone claiming the necessary authority; or (vi) the statements or conduct of any third party on the Services. The above applies even if this damage was foreseeable.
The Representatives of Phyla disclaim all liability for the acts, omissions, and the conduct of any and all third-party user or provider of the Services, Social Networking Services, or any advertiser and sponsor of the Services (Within this Section, “Third-Parties”). You acknowledge that Phyla is solely a facilitator and promoter of information provided to you by Third-Parties. You acknowledge that Phyla can in no way be held liable for any loss, damages (including special, indirect, punitive, exemplary, or incidental damages) or costs resulting in any way from:
● The acts, omissions or conduct of Third-Parties;
● The quality, and your satisfaction of, the goods and services provided by Third-Parties; and
● The use or inability to use software, services or content offered through other Websites or Third-Parties which are linked to the Services.
You agree to indemnify the Representatives of Phyla and will hold them harmless against any third-party claims which may arise from:
● your violation of any part of our Terms and Conditions;
● your browsing, use, or inability to use the Services, in whole or in part;
● your use or reliance on any and all publications, communications, distributions, or downloads which were accessed on the Services;
● your violation of any applicable law, rule or regulation, or the rights of a third party, including intellectual property rights.
You agree that the Representatives of Phyla have no liability for these types of claims, and you agree to indemnify the Representatives of Phyla against any losses, damages, judgments, compensation, fees, and charges, including legal and court fees and expenses.
15. Termination of our Services
If you wish to terminate your legal agreement with Phyla, you may do so by notifying us in writing at any time, which will entail closing your account for all of the Services we provide which you use. Your notice can be sent to us at the address detailed within Section 15 of this Agreement, or via email to firstname.lastname@example.org.
Phyla may terminate its legal agreement with you (including, and in conjunction therewith, your password and account) if Phyla is required to do so by law, if Phyla is transitioning to no longer provide our Services in the country or state in which you reside, or if the Services provided are, at Phyla’s sole discretion, no longer commercially viable. It is understood that Phyla may, at its sole discretion, limit access to the Websites for any reason.
If you violate our Terms and Conditions or act in a manner inconsistent with the letter or spirit of our Terms and Conditions, you agree that Phyla may, at its sole discretion and without notifying you, suspend or terminate your account (or any part thereof), or otherwise block your access to the Services.
Should the Representatives of Phyla take legal action against you as a result of a breach of these Terms and Conditions, the Representatives of Phyla reserve the right to demand that you reimburse costs and fees associated or incurred with said legal action. These costs and fees being in addition to any damages which may be awarded by the court, and you agree to cover all such costs and fees. Finally, you agree that Phyla shall not be held liable to you, or to another third-party, as a result of the cancellation of your access to the Services as a result of a breach of the above.
16. Notice for Alleged Infringement of Intellectual Property Rights
Complaints, Notices, and our Contact Information
Phyla takes all allegations of intellectual property right infringement, defamation, and the violation of privacy legislation very seriously. If information regarding such alleged infringement(s) should be brought to your attention, whether or not this information is with respect to our Services or if you believe that any Content or User Content contained therein infringes or has infringed on your rights or those of someone who has mandated you, please contact us at your earliest convenience at: email@example.com.
Should you wish to send your notice to us by mail, you may contact us at:
Phyla Technologies Inc.
400 rue Montfort, CP12, local M-2340
Montréal, Québec, Canada
In order for us to process your request efficiently, we ask that it be in writing and contain the following information:
● an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;
● a description of the content or work that you claim has been infringed;
● a description of where the material that you claim is infringing is located on the Services, with enough detail that we may find it on the Services;
● your telephone number, and email address, or the telephone number and email address of your authorized representative.
17. Governing Law & Dispute Resolution
Governing law of this Agreement
Our Services are operated, made accessible and controlled by Phyla Technologies Inc., based in the Province of Québec, Canada. While our Services are accessible in other locations around the world, you agree that, in all instances except those related to Intellectual Property, the laws of the Province of Québec (Canada) will apply to any and all matter or dispute arising from your access or your use of the Services, regardless of conflict-of-law rules.
You hereby agree to resolve any disputes between Phyla and you (in this Section 17, individually a “Party”, collectively the “Parties”) in accordance with this Section 17. If you believe that Phyla has not adhered to these Terms and Conditions, or you have any dispute with Phyla, please contact us at: firstname.lastname@example.org, or:
Phyla Technologies Inc.
Attn.: Dispute Resolution
400 rue Montfort, CP12, local M-2340
Montréal, Québec, Canada
All such controversies, claims, counterclaims, or other disputes arising between the Parties relating to the Services or to our Terms and Conditions (each a “Claim”) shall be resolved through mediation before pursuing any other proceedings. The Parties shall resolve any dispute by final and binding arbitration. The Arbitrator shall be appointed by the Institut de Médiation et d’arbitrage du Québec. The place of arbitration shall be Montreal, Canada. The language of the arbitration shall be English. Arbitration costs and reasonable documented legal costs of both Parties to be borne by the Party that ultimately loses. Nothing herein shall preclude the Parties from seeking injunctive relief in the event that the Parties perceives that without such injunctive relief, serious harm may be done to the concerned party, or to enforce arbitral awards in any court of competent jurisdiction.
You agree that you are solely responsible for your interactions with any other user in connection with the Services, including the User Content posted by other users, and that Phyla will have no liability or responsibility with respect thereto. Phyla reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Services.
18. Prohibited or invalid clauses
If any provision of these Terms and Conditions should be prohibited or made invalid by a court of competent jurisdiction, such provision shall be ineffective to the extent of such prohibition or invalidity and be replaced with more fitting provisions in the Terms and Conditions, the rest of which, remains in full force and effect.
Void where Prohibited
The information provided through the Services is expressly not intended for use or distribution by persons and entities in countries and jurisdictions where such use and distribution would be contrary to law, or where Phyla and its partners may be held to a restriction requirement.
IF YOU ACCESS OR USE THE SERVICES FROM A COUNTRY OTHER THAN CANADA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAWS AND REGULATIONS WHICH ARE APPLICABLE.
19. Notice to California Residents
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint or to receive further information regarding use of the Services.
Phyla may assign, at its sole discretion, in whole or in part, these Terms and Conditions, and/or all rights associated thereto to a third party. Phyla will inform you in writing about the transfer. You may not transfer to another party, in whole or in part, the rights or obligations resulting from these Terms and Conditions.