Terms Of Service
Unless governed by a separate written agreement, your access to and use of all services and content available on this website, including software, content, and any software updates or support you may receive from us (collectively “Services”), is governed by the terms and conditions of this agreement. As used in this agreement, “you” and “your” refer to you as an individual as well as other individuals you allow to access or use Phantom Services on your computer systems, and any legal entity you work for or otherwise represent when you access or use the Services. The terms “us” and “we” and “Company” refer to Phantom Cyber Corporation.
NOTE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, CLASS ACTION WAIVER, AND TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
By using this website and any Services, including without limitation downloading and installing Phantom software, updates, or user-submitted content, you accept these terms and conditions. If you do not accept them, you are not authorized by us to access, download, reproduce, or use any of the Services.
1. Licensed Use Rights and Limits. Any Phantom software you obtain under this agreement through use of the Services is licensed for installation and permitted use by you for your internal security purposes on equipment you own or control (your “System”) on a subscription basis for a specified limited period of time (the “Term”). Your permitted use of Phantom software is subject to the limits of the subscription you selected when ordering or downloading Phantom software, including the duration of the Term, the number of permitted installed server instances of the software, and the number of “Playbooks” or “Actions” per day (the 24 hour period measured using Coordinated Universal Time “UTC”) executed by Phantom software on your System, as these terms are used in the Phantom product documentation. You may not share a license you acquire with a third party, nor may you install or use Phantom software on equipment that you do not own or control, but you may permit your third-party contractors to use Phantom software under your license as long as such use is solely for your benefit and complies with all applicable license terms and restrictions. If you violate the terms and conditions of this agreement, Phantom reserves the right to terminate your license to use the Phantom software and Services immediately upon notice. At the time of any termination of this agreement, your license to reproduce and use Phantom software terminates and all copies must be removed from your System and destroyed or archived.
(a) No-Charge Community Edition. If you acquire a license to a free “Community Edition” version of Phantom software, it will contain limited functionality after reaching the permitted number of daily Actions, such limit being one hundred (100) Actions per day unless otherwise specified by us. Your license will have an initial term of one (1) year after which it will auto-renew for additional one-month periods unless and until terminated with thirty (30) days’ prior notice by us or you or otherwise as permitted herein. If and when you acquire a paid license to a full version of Phantom software, your license to the Community Edition version will terminate and be replaced by the terms of the paid version. During your license Term of the Community Edition version, you agree that we may periodically offer you, through in-product or stand-alone reminders or email, the opportunity to upgrade to paid versions of the product.
(b) Trial Version. If you acquire a “Trial Version” of Phantom software, you will receive a license key that will allow access to greater functionality for evaluation purposes during a limited trial period (the “Trial Version Term”). After expiration of the Trial Version Term, unless extended by us or replaced upon your acquisition of a paid version of Phantom software, your license will convert to that of a limited functionality Community Edition. If you license a Trial Version of Phantom software, you agree that we may periodically offer you, through in-product or stand-alone reminders or email, the opportunity to upgrade to full versions of the product.
2. Other License Limitations. Phantom Services are licensed, not sold. Phantom software is protected by copyright and other intellectual property laws and treaties. This agreement, if accepted by you, only gives you limited rights to use Phantom Services. We reserve all other rights. Unless applicable law gives you more rights despite this limitation, you may use Phantom Services only as expressly permitted in this agreement. In doing so, you must comply with technical limitations in Phantom Services that only allow you to use it in certain ways. You may not:
- use Phantom Services other than for your internal security purposes;
- work around the technical limitations in Phantom Services;
- reverse engineer, decompile or disassemble Phantom software, except and only to the extent that applicable law expressly permits, despite this limitation;
- install on unauthorized computers or use Phantom software beyond limits specified in this agreement;
- use Phantom Services to develop or disclose the results of any benchmarking of performance;
- publish Phantom software for third parties to copy;
- distribute Phantom software to any third party;
- rent, lease or lend Phantom software; or
- transfer Phantom software or this agreement to any third party.
3. Your Feedback and Submissions.
(a) Feedback. If you give feedback about Phantom Services to us, you give to us, without charge, the right to use that feedback for any purpose. You represent and warrant that you will not give feedback that is subject to any open source or other license that requires us to license our software or documentation to third parties because we include your feedback in them. These rights survive any termination of this agreement.
(b) User-Submitted Content. If you upload or otherwise provide to us an application, Playbook, or other content (collectively “Content”) for us to make available on our website or otherwise as part of the Services, you (i) grant us and our successors and assigns a non-exclusive, perpetual, royalty-free, world-wide right and license to use, host, reproduce, modify, publicly perform, publicly display, and distribute such submissions in any form and on any media including without limitation to publish the Content on our community pages (my.phantom.us), and (ii) you represent and warrant that you are over 18 and have the right and authority to grant this license and further that you will remove or redact any confidential or proprietary information of any third parties, and (iii) you represent and warrant that the Content as you provide it and license it to us hereunder will not violate or infringe the rights of any third parties. We agree we will not remove your name or attribution from Content as you submit them, and you agree that we may use your name and likeness in any marketing or promotion of the Content.
4. Maintenance and Support. We will use commercially reasonable efforts to make online support materials and information available through our website to authorized Phantom Services users, including periodic maintenance updates that may be downloaded by you. Any supplemental software code, updates or materials provided to you as part of maintenance and support for Phantom software will be considered part of Phantom Services and subject to the terms and conditions of this agreement.
5. U.S. Government Restricted Rights. Phantom software and its accompanying documentation are deemed to be commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 “Commercial Computer Software - Restricted Rights” and DFARS 227.7202, “Rights in Commercial Computer Software or Commercial Computer Software Documentation,” as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of Phantom software by the U.S. Government shall be solely in accordance with the terms of this agreement.
6. Export Restrictions. Phantom software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to Phantom Services. These laws include restrictions on destinations, end users and end use. You agree not to export Phantom software to any prohibited country, entity, or person for which an export license or other governmental approval is required.
7. DISCLAIMER OF WARRANTIES. PHANTOM SERVICES ARE LICENSED “AS-IS.” TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, and we MAKE NO WARRANTIES THAT: (I) OUR PRODUCTS, SERVICES, AND/OR WEBSITE WILL MEET YOUR REQUIREMENTS; (II) OUR PRODUCTS, SERVICES, AND/OR WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE PRODUCTS, SERVICES, AND/OR USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS AND/OR SERVICES PURCHASED OR INFORMATION OBTAINED BY YOU THROUGH THE PRODUCTS, SERVICES, AND/OR webSITE WILL MEET YOUR EXPECTATIONS; OR (V) ANY ERRORS IN THE PRODUCTS, SERVICES, AND/OR WEBSITE WILL BE CORRECTED.
PHANTOM IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS WHERE A SOFTWARE MALFUNCTION COULD CAUSE PROPERTY DAMAGE OR PERSONAL INJURY, AND WE SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
WE DO NOT WARRANT IN ANY WAY THIRD-PARTY PRODUCTS, INCLUDING BUT NOT LIMITED TO “PLAYBOOKS” OR “APPS” YOU MAY DEVELOP YOURSELF OR OBTAIN FROM ANY THIRD PARTIES THROUGH OUR COMMUNITY PAGES OR ELSEWHERE. YOU ASSUME ALL RISKS IN USING THIRD-PARTY PRODUCTS OR SERVICES WITH PHANTOM.
8. Limitation on and Exclusion of Damages. OUR liability under this agreement is limited. You can recover only direct damages up to the amount that you paid for Phantom SERVICES, OR US$100.00, WHICHEVER IS GREATER. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages. This limitation applies to all claims related to Phantom services, including without limitation claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law. It also applies even if WE knew or should have known about the possibility of the damages.
9. Dispute Resolution and Binding Arbitration Provision.
(a) Definitions. As used in this Arbitration Provision, “Claims” means all claims, disputes, or controversies between you and us of any nature or kind, whether pre-existing, present, or future, that arise from or relate to the use of the Phantom Services. This includes but is not limited to disagreements about the validity, enforceability, or scope of this Arbitration Provision.
(b) Informal Efforts to Resolve Dispute. If a dispute arises between you and us, you should first attempt to resolve it by contacting our Customer Service Center with the details of your complaint, including your contact information for a response, and send it to the mail or email address listed below. We will attempt in good faith to resolve all Claims submitted this way within fifteen (15) days of receipt.
(c) Agreement to Arbitrate; Right to Opt Out. If informal efforts to resolve Claims fail or are not used, you agree that any and all Claims will be resolved exclusively by binding arbitration as described herein, except that: (i) you may assert Claims in a small claims court in the United States if your Claims meet the court’s jurisdictional requirements; and (ii) either party may pursue Claims and relief in a court of competent jurisdiction regarding the validity and/or infringement of a party’s intellectual property rights.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD TO YOU ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND FORMS OF RELIEF AS A COURT COULD (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF AS WELL AS STATUTORY DAMAGES), AND MUST FOLLOW THE LAW AND TERMS OF THIS AGREEMENT AS A COURT WOULD. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS AND PRIVATE ATTORNEY GENERAL ACTIONS ARE NOT PERMITTED.
if YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY us IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST ACCEPT OR HAVE ACCESS TO THIS AGREEMENT BY MAILING an OPT-OUT REQUEST TO OUR CUSTOMER SERVICE CENTER LISTED BELOW. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, ADDRESS, the email address you used to register with us, AND A clear STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH us THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH us OR THE DELIVERY OF SERVICES TO YOU by us. IF YOU HAVE PREVIOUSLY NOTIFIED us OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
(d) Arbitration Fees. The allocation and payment of all filing, administration and arbitrator fees will be governed by the rules of the American Arbitration Association (“AAA”) which limit the amount a consumer is required to pay. If the arbitrator determines that your Claims are not frivolous applying the standards of the Federal Rules of Civil Procedure, and you qualify as a consumer under the AAA rules, we agree to reimburse you the amount of all filing, administration and arbitrator fees you are required to pay for the arbitration.
(e) Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules if you are a resident of the United States. If you are a resident of a country other than the United States, the arbitration will be conducted by the AAA’s International Centre for Dispute Resolution in New York, NY, under its rules for international arbitration, and you and we agree to submit to the personal jurisdiction of the U.S. federal court in New York, NY, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In the event of a conflict or inconsistency between the applicable arbitration rules and this Arbitration Provision, this Arbitration Provision shall govern and control.
The arbitration will be conducted in the English language by a single arbitrator who is an attorney-at-law with experience in consumer and technology transactions and who is also a member of the AAA National Roster of Arbitrators. If you and we can’t agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then the AAA will pick a neutral arbitrator who meets the qualifications. The AAA’s rules are available at www.adr.org, or by calling 1-800-778-7879 from inside the United States or +1-212-484-4181 from outside the United States.
(f) Initiating Arbitration. To begin an arbitration proceeding, you must follow the procedures specified by the applicable AAA rules as described on their website at www.adr.org
(g) Time Restriction. YOU MUST FILE A COMPLAINT WITH THE AAA OR A PERMITTED COURT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
(h) Arbitration Process. Because appearing in person for arbitration can be unduly burdensome in the circumstances, arbitration under this Arbitration Provision shall not require any personal appearance by the parties or witnesses unless mutually agreed. Either or both parties may participate by written submissions, telephone calls, or other means of remote communication as allowed by the arbitrator. The arbitration proceedings will be conducted in the English language at a location designated by the AAA in Santa Clara County, California.
The arbitration can only decide Claim(s) between you and us, and may not consolidate or join the claims of other persons that may have similar claims. There shall be no pre-arbitration discovery except as provided for in the applicable AAA rules. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
In conducting the arbitration proceeding, the arbitrator will apply the law of the State of California (without regard to its conflicts of law provisions) including U.S. federal law for matters covered by federal law (for example, the Federal Arbitration Act). At the request of any party, the arbitrator shall provide a brief written explanation of the basis for the decision and award. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding on the parties except for any right to appeal under the AAA rules or the Federal Arbitration Act.
(i) Confidentiality. You and we shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Arbitration Provision and, with the exception of disclosure to your or our attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
(j) Continuing Obligation to Arbitrate; Severability. This Arbitration Provision shall survive termination of your access to or use of any Services and related agreements. If any portion of this Arbitration Provision is deemed invalid or unenforceable at law, such invalid or unenforceable provision will be interpreted, construed or reformed to the extent required to make it valid and enforceable, and this shall not invalidate the remaining portions of this Arbitration Provision.
(l) Phantom Customer Service Center Address:
Phantom Cyber Corporation
2479 East Bayshore Road, Suite 188
Palo Alto, CA 94303 USA
10. Applicable Law; Forum. California state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. Without limiting the parties’ rights and obligations under the Arbitration Provision of this agreement, you agree that any lawsuit filed to resolve any Claim you have with us arising out of or relating to this agreement will be brought exclusively in a state or federal court located in or for Santa Clara County, and you agree to submit to the personal jurisdiction of such courts for the purpose of such Claims.
11. Entire Agreement; Severability. This Agreement as well as any ordering documents prepared or signed by Phantom specifying the Term of the subscription and applicable limitations constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This agreement may not be amended, supplemented or otherwise modified except by a written agreement executed by an authorized representative of both parties. If for any reason any provision of this agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision; (b) such provision will remain in effect to the extent that it is not invalid or unenforceable; and (c) such invalidity or unenforceability will not affect any other provision of this agreement.
© 2018 Phantom Cyber Corporation. All Rights reserved.
Last Updated February 12, 2018