Phantom Technology Limited:
Master Terms of Service.
Last updated date: 30th June 2022
These master terms of service (together with the documents, information and policies referred to in these terms of service) ('Master Terms of Service') set out the legal terms that apply to your use of our services (which includes our 'PhantomEngine' platform ('PhantomEngine Platform'), application programming interfaces ('API'), software development kits ('SDK'), and the other suite of tools and services for developing augmented reality applications), whether operated by us or on our behalf ('Services'). These Master Terms of Service do not apply to our generally available marketing website(s) (e.g. www.phantomengine.io).
Please read these Master Terms of Service carefully and make sure that you understand them before registering for an account. If you continue with the registration process, we will take this as your acceptance of these Master Terms of Service. If you are accepting these Master Terms of Service on behalf of an entity, you represent that you have the authority to do so.
1. Understanding these Master Terms of Service
1.1. Definitions. The following definitions apply in these Master Terms of Service:
'Add-ons' means an add-on service that is entirely optional for you to use and, if selected by you, (i) is an additional standalone portion of the Services that offers additional functionality, and (ii) may be subject to additional fees and/or additional Service Terms. Our Support Services also constitute an Add-on.
'App' means the mobile application which uses or incorporates the SDK (whether whole or in part).
'App Store' means the Google Play Store and/or Apple App Store.
'IPR Claim' has the meaning given to it in section 7.1.
'Order' means each order for Services as agreed with us (whether electronically or otherwise).
'Organisation Profile' has the meaning given to it in section 3.1.3.
'Plan' means one of the pay-as-you-go or subscription plans to use certain Services that are offered by us from time to time.
'Service Terms' means, in respect of each Service or Plan, the additional terms (as updated from time to time) that are relevant to that Service or Plan.
'Support Services' means our integration and support services.
'we', 'us' or 'our' means Phantom Tech.
'you' or 'your' means the customer using the Services and it shall also cover any affiliate or anyone else acting on your behalf.
1.2. Interpretation. We have used headings to help you understand these Master Terms of Service and to easily locate information. We recommend that you print or save a copy of these Master Terms of Service for your records (but please note that we may amend these Master Terms of Service from time to time so please check regularly to ensure you understand the legal terms that apply at that time).
1.3. Framework. These Master Terms of Service are intended to operate as a framework to (amongst other things) enable you to access the Services.
1.4. Other terms. These Master Terms of Service refer to the following additional terms, which may also apply to you:
1.4.1. Orders. If you have agreed an Order with us, it is incorporated into these Master Terms of Service.
1.4.2. Service Terms. Service Terms may apply to your use (if any) of our Services, for example, Service Terms will apply when you select a Plan, certain Add-ons, and/or the Support Services.
1.4.4. Open source / third-party terms. Our Services may incorporate open source and/or third-party software. Where this is the case, such parts of the software are distributed under and subject to the terms and conditions of the applicable open source and/or third-party licences.
2. About us
Who are we? These Master Terms of Service are between you and Phantom Technology Limited ('Phantom Tech'). We are a company registered in England and Wales and our registered office is at St Johns Innovation Centre, Cowley Road, Cambridge, England, CB4 0WS. Our registered company number is 12198273.
3. Phantom Tech Services
3.1. Services we provide.
3.1.1. By registering for an account, you will have access to our PhantomEngine Platform. Other Services may be purchased or used via the PhantomEngine Platform.
3.1.2. To use some of our Services, you may be required to select a Plan. You may use our Services in connection with more than one App, but doing so requires you to agree a separate Plan for each App.
3.1.3. The PhantomEngine Platform allows you to create an 'organisation profile' ('Organisation Profile'), under which you can work collaboratively with others in your organisation. Use of the Services under the Organisation Profile binds the relevant organisation/entity. The individual who creates the Organisation Profile will automatically become the 'owner'. The owner is responsible for account management (such as arranging payment, adding and/or removing users from your organisation's account, etc.).
3.1.4. You may access the Services at any time in accordance with these Master Terms of Service. Services may require you to accept Service Terms and information, which are hereby incorporated into these Master Terms of Service.
3.1.5. We will provide the Services as described on our website from time to time, and standard updates to the Services that are made generally available by us.
3.1.6. We may, in our sole discretion, discontinue the Services or modify the features of the Services from time to time without prior notice. Any new features that augment or enhance the current Services, including the release of new tools and resources, shall be subject to these Master Terms of Service; your continued use of the Services after any changes to the Services shall constitute your consent to such changes.
3.1.7. We may provide the Services through any of our affiliates.
3.2. Warranties. You understand and agree that the Services are provided "as is" and we, our affiliates and suppliers expressly disclaim all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose or non-infringement. Unless otherwise specified, we, our affiliates and suppliers make no warranty or representation regarding the results that may be obtained from the use of the Services, or that the Services will meet any user's requirements, or be uninterrupted, timely, secure or error free. Use of the Services is at your sole risk. Any material and/or data downloaded or otherwise obtained through the use of the Services is at your own discretion and risk. You will be solely responsible for any damage to you resulting from the use of the Services. The entire risk arising out of use or performance of the Services remains with you. Unless otherwise specified, we cannot guarantee and do not promise any specific results from use of the Services.
3.3. Indemnity. You agree to indemnify, defend and hold us harmless, including our affiliates, officers, directors, employees, consultants, agents and suppliers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys' fees) arising from your violation of these Master Terms of Service, including non-or late payment of fees, or the infringement or violation by you or any other user of your account of any intellectual property or other right of any person or entity or applicable law.
3.4. Limitation of Liability.
3.4.1. In no event shall we be liable to you or to any third party for any consequential, incidental, indirect, exemplary, special or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damages were foreseeable and whether or not we have been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
3.4.2. In no event shall our aggregate liability arising out of or related to these Master Terms of Service, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the aggregate amounts paid or payable to us in the 12 month period preceding the event or circumstances giving rise to the claim.
3.4.3. The limitation of liability set forth in section 3.4.2 above shall not apply to (i) liability from our gross negligence or wilful misconduct, or (ii) death or bodily injury resulting from our negligent acts or omissions.
3.5. Accuracy of information. We cannot be responsible for the accuracy of information or data you input or provide, or data we receive from third parties. To the fullest extent permitted by law, we shall not be responsible or liable for any of the following:
3.5.1. the inputting of your account information;
3.5.2. the accuracy, quality and integrity of data retrieved from third party sources;
3.5.3. delays, failures or loss of or damage to data arising from the transfer of data over the internet or other communications networks or facilities; and
3.5.4. back-ups of your account information or any other data.
4. Charges and cancellation
4.1. Our fees. We charge the fees that are set out on our website from time to time, unless agreed otherwise with us in an Order. Unless stated to the contrary, the fees are exclusive of applicable taxes or other charges imposed by law from time to time, and you shall in addition pay such applicable taxes and other charges at the rate and in the manner prescribed by law from time to time.
4.2. Promotional offers. We may, from time to time, offer various promotions or offers. Unless otherwise stated by us, these Master Terms of Service will continue to apply to such promotion or offer. In respect of any promotion or offer, we may, in our absolute discretion, end or withdraw the promotion or offer without warning.
4.3. Payment. You agree that we may charge to your credit card or other payment mechanism selected by you and approved by us all amounts due and owing for the Services, including taxes and any other fee or charge associated with your use of the Services. We may change prices at any time, including changing from a free service to a paid service and charging for Services that were previously offered free of charge; provided, however, that we will provide you with prior notice and an opportunity to close your account if we change the price of a Service to which you are subscribed and will not charge you for a previously free Service unless you have been notified of the applicable fees and agreed to pay such fees. You agree that in the event we are unable to collect the fees owed to us for the Services, we may take any other steps we deem necessary to collect such fees from you and that you will indemnify us for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys' fees. You further agree that we may collect compound interest at 10% per month on any amounts not paid when due.
4.4. Changes to our prices/Plans. We may change our Plans or the price of our Services from time to time; however, any price changes or changes to a subscription Plan will apply no earlier than at least 14 days following notice to you.
4.5. Downgrading your account. Downgrading your account may cause loss of content or features. We do not accept any liability for such loss.
4.6. Closing your account. Our website and Service Terms contain information on how to close your account.
4.7. Termination by us. If you fail to comply with any provision of these Master Terms of Service, we may terminate the Services and these Master Terms of Service immediately and retain any fees previously paid by you. In the event we terminate these Master Terms of Service for our convenience only, we shall refund you the cost of any remaining period under your subscription term or payment plan or effect termination on the last day of the then-current subscription term.
4.8. Post-termination. Any provision that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Master Terms of Service shall remain in full force and effect. Upon any termination of these Master Terms of Service, you must cease any further use of the Services.
5. Use of the Services and your responsibilities
5.1. Your use of the Services. You may only use the Services pursuant to these Master Terms of Service. Subject to your compliance with these Master Terms of Service, we grant you a non-exclusive, non-transferable, personal right to use the Services. You are solely responsible for your use of the Services and shall abide by, and ensure compliance with, all laws in connection with your use of the Services, including but not limited to laws related to intellectual property.
5.2. Registration information. You may be required to provide information to register for and/or use certain Services. You agree that any such information shall be accurate. You may also be asked to choose a user name and password. You are entirely responsible for maintaining the security of your user name and password and agree not to disclose such to any third party.
5.3. Access to the Services. We provide the Services to you through our website and other contact channels, such as email, and so you need to keep your contact details up to date. We try to make sure that the Services are accurate, up-to-date and free from bugs, but we cannot promise that they will be. Services, content and features may not be available at all times or in all regions.
5.4. Prohibited use. You agree that you will not use the Services to: (i) modify, disassemble, decompile, reverse engineer or otherwise attempt to gain unauthorised access to the Services; (ii) use the Services in a way that abuses, interferes with, or disrupts our networks, your accounts, or the Services; (iii) engage in activity that is illegal, fraudulent, false, or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions, data, processes, technology, or graphics of the Services; (vi) use the Services to communicate any message or material that is harassing, libellous, threatening, obscene, indecent, would violate the intellectual property rights of any party, to simulate communication from us or another service or entity in order to collect identity information or other information ('phishing'), or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or our networks or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or our security systems; (ix) distribute viruses or malware or other similar harmful software code; (x) use the Services in violation of any of our policies or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations, and you agree that you are solely responsible for compliance with all such laws and regulations.
5.5. Limitations on use. You may not reproduce, resell, extract, re-utilise or distribute the Services or any data generated by the Services for any purpose unless you have been specifically permitted to do so under a separate written agreement with us. In particular, you must not use any data mining, robots, spiders, or similar data gathering and extraction tools, devices, algorithm, code, process or methodology, whether automated or not, to access, acquire, copy, extract or monitor (whether once or many times) any part of the Services, materials, content, documents or data. You may not offer or enable any third parties to use the Services purchased by you, display on any website or otherwise publish the Services or any content obtained from a Service or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services. This section should be treated as an express reservation of our rights. Nothing in this section prohibits or restricts any activity which cannot be legally prohibited or restricted.
5.6. Analytics. You may not allow any third party to provide or perform analytics services to you in respect of the Services.
5.7. Third-Party links. Our website may contain links to third-party websites or resources ('Third-Party Services'). Such Third-Party Services may be subject to different terms and conditions and privacy practices. We are not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by us of such Third-Party Services.
5.8. Intended use. The Services are intended for business use only. You may choose to use the Services for other purposes, subject to the terms and limitations of these Master Terms of Service and any applicable Service Terms.
5.9. Marketing. You grant us permission to use your trade marks to refer to your use of the Services for our marketing purposes.
6. Intellectual property rights
6.1. Services. We are the owner or the licensee of all intellectual property rights in the Services. We or our licensors own all intellectual property rights in any data created by or on behalf of us. The rights in the Services are protected by international copyright laws as well as by any relevant national law concerning copyright, authors' rights and database right laws. All such rights are reserved.
6.2. Information you provide. All intellectual property rights in information or material you provide to us shall remain owned by you or the relevant third party owner. By agreeing to these Master Terms of Service, you grant us a royalty-free, non-transferable, non-exclusive license to use, copy or otherwise utilise the information or material to the extent necessary or desirable to perform or provide the Services and to improve our products and Services (including improving the Services, our operations and systems, and/or combining data with other data sets). By submitting any information or material to use, you represent and warrant that you have all rights, power and authority necessary to grant the rights to such information or material to us. Any intellectual property rights in data, analysis and improvements derived from our use of information you provide shall be owned by us.
6.3. Feedback. You grant to us a royalty-free, irrevocable, perpetual and non-exclusive license to use, copy or otherwise utilise any feedback or content you send to us to the extent necessary to perform or provide the Services and to improve our products and Services (including improving the Services, our operations and systems, and/or combining data with other data sets).
6.4. Legal notices. Nothing in these Master Terms of Service grants you any legal rights in the Services other than as necessary for you to access it, except as otherwise expressly stated in these Master Terms of Service. You agree not to adjust, try to circumvent or delete any notices (including any intellectual property notices) and in particular, in any digital rights or other security technology embedded or contained within the Services.
7. Third party IP claims
7.1. Notification. You must notify us of any claim or action made or threatened against you by any third party where, in the use of the Services, you have allegedly infringed the intellectual property rights of that third party ('IPR Claim'). Notification of an IPR Claim must take place within 5 working days following the date on which you received the IPR Claim.
7.2. IPR indemnity. Subject to the provisions of the Master Terms of Service, we shall indemnify you in respect of all damages and reasonable costs (including legal fees) arising directly from an IPR Claim, provided that:
7.2.1. you shall not admit any liability or agree to any settlement or compromise of an IPR Claim without our prior written consent;
7.2.2. we shall be entitled at any time to assume exclusive conduct of the IPR Claim (which shall include, but not be limited to, the exclusive right to conduct any proceedings or action, negotiate the settlement of the IPR Claim, and to conduct all discussions and dispute resolution efforts in connection with the IPR Claim);
7.2.3. you shall, at our request and expense, give us all reasonable assistance in connection with the conduct of the IPR Claim;
7.2.4. you give us prompt notice of any IPR Claim or threatened IPR Claim in accordance with section 7.1; and
7.2.5. you take reasonable steps to mitigate any liabilities which are the subject of the indemnity in this section 7.
7.3. Our liability. Section 7.2 shall not apply to any IPR Claim which: (i) arises from any changes, modifications, updates or enhancements made to the Services by any person other than us; or (ii) does not relate to our own proprietary intellectual property rights.
7.4. Limitation of liability. The provisions of sections 7.2 and 7.3 state our entire liability to you in connection with an IPR Claim and shall be your sole and exclusive remedy in that regard.
8. Third party IP claims
8.1. Updates to these Master Terms of Service. We may change or supplement these Master Terms of Service or any Service Terms from time to time, at our sole discretion. Where we do so, we will use commercially reasonable business efforts to provide notice to you of any such changes. Within 14 days of posting changes (or 14 days from the date of notice, if such notice is provided), they will be binding on you. If you do not agree with the changes, you must not use the Services. If you continue to use the Services after such 14 day period, you will be deemed to have accepted the changes.
8.2. Assignment and other dealings. We may at any time transfer (by way of assignment or novation) these Master Terms of Service to any of our group companies upon written notification to you or general notice on our website (and you consent to any such transfer). We may also assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of our rights and obligations under these Master Terms of Service.
8.3. Severability. Each of the sections and paragraphs of these Master Terms of Service operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining sections and paragraphs will remain in full force and effect.
8.4. Waiver. If you breach these Master Terms of Service and we take no action, or if we delay in taking action, that does not mean that we have waived our rights and we shall be entitled to use our rights and remedies. If we do waive a breach by you, we will only do so in writing (signed by one of our Directors), and that shall not mean that we will automatically waive any later breach by you.
8.5. Events outside of our control. We shall not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations to you if such failure or delay is caused by an event outside of our control. An event outside of our control means any act or event beyond our reasonable control such as the actions of third party suppliers, wars, terrorist attacks, embargos, riots, strikes, lock-outs, trade disputes, fires, floods, earthquakes or other natural disasters, break-down, inclement weather, interruption of transport, pandemics, epidemics, Government action or failure of public or private telecommunications or transport networks. If such an event takes place and it affects the performance of our obligations to you: (i) we will contact you as soon as reasonably possible to notify you; and (ii) our obligations to you will be suspended for the duration of the event.
8.6. Complaints. We operate a complaints handling procedure that we will use to try to resolve disputes when they first arise, please let us know if you have any complaints or comments. Please see our Contact page for details of how to get in touch with us.
8.7. Governing law and jurisdiction. Anything related to your use of the Services or these Master Terms of Service are governed by English law. To the fullest extent permitted by law, the courts of England shall have the exclusive jurisdiction over any dispute or claim relating to these Master Terms of Service.
8.8. Entire agreement. These Master Terms of Service constitute the entire agreement between you and us and they supersede any and all earlier agreements between you and us.