Effective Date: 5/15/2019
SECTION 9 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 9 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT. BY AGREEING TO THE TERMS, YOU AGREE (A) TO RESOLVE ALL DISPUTES WITH US THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND (B) THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS.
By accessing or using any website with an authorized link to this Agreement or accessing or using any content, information, services, features or resources available or enabled via such website (collectively, the “Website“), clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Website; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Website. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Website.
THE INFORMATION PROVIDED ON THIS WEBSITE IS NOT INTENDED NOR RECOMMENDED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER REGARDING ANY MEDICAL CONDITION OR TREATMENT. NOTHING CONTAINED ON THIS WEBSITE IS INTENDED TO BE FOR MEDICAL DIAGNOSIS OR TREATMENT.
Subject to Section 9.9 of this Agreement, Phathom reserves the right to modify this Agreement or its policies relating to the Website at any time, effective upon posting of an updated version of this Agreement on the applicable Website. You should regularly review this Agreement, as your continued use of the Website after any such changes constitutes your agreement to such changes.
1. Ownership of and License to Use Phathom Properties.
1.1 Use of the Website. Phathom and its licensors own all rights, title and interest in the Website. The Website is protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Phathom grants you a nonexclusive, nontransferable, limited license (without the right to sublicense) to use the Website solely for your personal non-commercial purposes. Any future release, update or other addition to the Website shall be subject to this Agreement. Phathom and its licensors reserve all rights not granted in this Agreement. Phathom reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use or access of the Website. You agree to protect the Website, and its proprietary content, information and other materials, from any unauthorized access or use, and you agree that you will not use the Website or such proprietary content, information or other materials except as expressly permitted herein or expressly authorized in writing by Phathom. You are solely responsible for your use of and activity in relation to the Website.
1.2 Trademarks. Phathom’s stylized name and other graphics, logos, service marks, trademarks, trade dress and trade names used on or in connection with the Website are the trademarks of Phathom and may not be used without permission in connection with any third-party products or services or in any manner that is likely to cause confusion or create the impression that Phathom or its licensors endorse any product or service. Other trademarks, service marks and trade names that may appear on or in the Website are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website.
1.3 Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to Phathom (“Feedback“) is at your own risk and that Phathom has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Phathom the right to use any Feedback in any way at any time without any additional approval or compensation.
2. Restrictions on Use of Website. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, license, sublicense, assign, reproduce, distribute, host or otherwise commercially exploit the Website or any portion of the Website; (b) you shall not frame or use framing techniques to enclose any trademark, logo or Website (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Phathom’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Website, or use any means to discover the trade secrets in the Website, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download, access or monitor data from or on the Website or to obtain or attempt to obtain any content, materials, documents or information through any means not purposely made available through the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Website to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Website; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Website or use the Website in any way not expressly permitted by this Agreement; (j) you shall not attempt to harm the Website, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Website, or interfering or attempting to interfere with use of the Website by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Website, or circumventing any functionality that controls access to or otherwise protects the Website; (k) you shall not probe, scan or test the vulnerability of the Website or any network connected to the Website, nor breach the security or authentication measures on or of the Website or any network connected to the Website, and you shall not reverse look-up, trace or seek to trace any information on any other user of the Website to its source, or exploit the Website or any service or information made available or offered by or through the Website, in any way where the purpose is to reveal any information, except as expressly authorized by Phathom and provided for by herein; (l) you shall not use the Website in any manner that violates any law, or to solicit the performance of any illegal activity or other activity which infringes our rights or the rights of others; and (m) you shall not use the Website for any purpose other than to receive information regarding Phathom and its research, products and services. Any unauthorized use of the Website terminates the licenses granted by Phathom pursuant to this Agreement.
3. Third-Party Links. The Website may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links“). When you click on such a link, we will not warn you that you have left the Website. Phathom does not control and is not responsible for Third-Party Links. Phathom provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.
4. Indemnification. You agree to indemnify and hold Phathom, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “Phathom Parties“) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any claims concerning: (a) your use or misuse of the Website; (b) your violation of this Agreement; (c) your violation of any rights of another party; or (d) your violation of any applicable laws, rules or regulations. Phathom reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Phathom in asserting any available defenses. You agree that the provisions in this Section will survive any termination of this Agreement or your access to the Website. You will not, in any event, settle any claim or matter without the written consent of Phathom.
5. Disclaimer of Warranties and Conditions. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK, AND THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PHATHOM PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. PHATHOM PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WEBSITE WILL MEET YOUR REQUIREMENTS OR THAT THE INFORMATION PROVIDED THEREON WILL BE ACCURATE OR COMPLETE OR (2) YOUR USE OF THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. PHATHOM SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERRORS OR OMISSIONS IN THE WEBSITE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT.
6. Limitation of Liability.
6.1 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PHATHOM PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE SERVICES, WHETHER OR NOT PHATHOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE PHATHOM PARTIES BE LIABLE TO YOU FOR MORE THAN ONE HUNDRED DOLLARS ($100) IN THE TOTAL AGGREGATE AMOUNT.
6.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PHATHOM AND YOU.
7. Termination. At its sole discretion, Phathom may modify or discontinue the Website, or may modify, suspend or terminate your access to the Website, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Website, Phathom reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. The foregoing rights shall be in addition to any other rights and remedies available to Phathom. All provisions of this Agreement which by their nature should survive termination shall survive the termination of your access to the Website, including provision regarding ownership, warranty disclaimers, indemnity, and limitations of liability.
8. International Users. The Website is controlled and offered by Phathom from its facilities in the United States of America. Phathom makes no representations that the Website is appropriate or available for access or use in other locations. Those who access or use the Website from other countries do so at their own volition and risk and are responsible for compliance with local law.
9. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Phathom and limits the manner in which you can seek relief from us.
9.1 Applicability of Arbitration Agreement. You agree that any dispute between you and us relating in any way to the Website or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Phathom may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
9.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Phathom Pharmaceuticals, 2150 E. Lake Cook Road, Suite 800, Buffalo Grove, Illinois 60089, Attn: General Counsel. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at https://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at https://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, Phathom will pay them for you. In addition, Phathom will reimburse all such JAMS’ filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
9.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Phathom. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
9.4 Waiver of Jury Trial. YOU AND PHATHOM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Phathom are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 9.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
9.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If a decision is issued stating that applicable law precludes enforcement of any of this Section 9.5’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of Indiana. All other claims shall be arbitrated.
9.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Phathom Pharmaceuticals, 2150 E. Lake Cook Road, Suite 800, Buffalo Grove, Illinois 60089, Attn: General Counsel or email to email@example.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
9.7 Severability. Except as provided in Section 9.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
9.8 Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Phathom.
9.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Phathom makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Phathom at the following address: Phathom Pharmaceuticals, 2150 E. Lake Cook Road, Suite 800, Buffalo Grove, Illinois 60089, Attn: General Counsel.
10. General Provisions.
10.1 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, sublicensed delegated or otherwise transferred by you without Phathom’s prior written consent, and any attempted assignment, subcontract, sublicense, delegation, or transfer in violation of the foregoing will be null and void. We may transfer, assign or delegate this Agreement and its rights and obligations without consent.
10.2 Force Majeure. Phathom shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
10.3 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Phathom agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state courts in Marion County, Indiana or federal courts located in the Southern District of Indiana.
10.4 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF INDIANA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
10.5 Notice. You may give notice to Phathom at the following address: Phathom Pharmaceuticals, 2150 E. Lake Cook Road, Suite 800, Buffalo Grove, Illinois 60089, Attn: General Counsel. Such notice shall be deemed given when received by Phathom by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address. By use of the Website, you consent to receive electronic communications from Phathom (via a posting on the Website), and you agree that any such communications satisfy any legal requirement to make such communications in writing. You also agree that Phathom may communicate any notices to you under this Agreement through electronic mail, regular mail or posting the notices on the Website.
10.6 Contact Information. If you would like to contact us with respect to the Website, please e-mail firstname.lastname@example.org.
10.7 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.8 Severability. Subject to Sections 9.5 and 9.7, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
10.9 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
10.10 Compliance with Law. You are responsible for compliance with all applicable regulations and laws.
10.11 Relationship of the Parties. No joint venture, partnership, employment or agency relationship exists between you and Phathom as a result of this Agreement or use of the Website.
10.11 Relationship of the Parties. No joint venture, partnership, employment or agency relationship exists between you and Phathom as a result of this Agreement or use of the Website.