Terms of Service

These Terms of Service (the “Terms” ) and our Privacy Policy at https://phxlabs.ca/privacy-policy cover your access to the following services of Phoenix Labs, Inc. and its subsidiaries (“Phoenix Labs”):

• The Phoenix Labs website ( https://phxlabs.ca ) and any other websites owned or operated by Phoenix Labs that post a link to these Terms (the “ Sites ”);
• The games accessible through the Sites or that you otherwise access that are subject to the Terms (each, a “Game” );
• The locally-installed game software that we make available for you to download for purposes of updating and launching each Game (the “Game Software” ); and
• Any other services or functionalities offered by Phoenix Labs through the Sites in connection with the Games.

To make these Terms easier to read, “Services” means, collectively, the Sites, the Games, the Game Software, and the other services or functionalities offered by Phoenix Labs through the Sites in connection with the Games. Please read these Terms and our Privacy Policy carefully because they govern your use of our Services.

IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND PHOENIX LABS THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 18 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.

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1. AGREEMENT TO TERMS

By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services. Certain Services (such as specific Games) may also be subject to other terms that supplement (and specifically refer to) these Terms. By using any portion of the Services that is subject to any supplemental terms, you also agree to be bound by such supplemental terms.

2. PRIVACY POLICY

Please refer to our Privacy Policy at https://phxlabs.ca/privacy-policy for information on how we collect, use and share your information.

3. CHANGES TO TERMS OR SERVICES

We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Sites or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the applicable Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.

4. ADDITIONAL TERMS

Some Services may be available (or only available) through accessing (or downloading from) a third-party platform or store, including but not limited to, the Nintendo eShop, the Steam game platform, the Epic Games platform, Microsoft Store, PlayStation Store, Google Play Store and Apple App Store (each, an “ App Store ”). Your use of the Services is also governed by any applicable agreements you have with any App Store (the “ App Store Agreement(s) ”). In the event of a conflict between any other App Store Agreement(s) from which you acquire the Games and these Terms with respect to your use of the Services, these Terms will take priority.

5. WHO MAY USE THE SERVICES

1. Eligibility . You may use the Services only if you are at least 13 years of age (or such other minimum age at which you can provide consent to data processing under the laws of your territory), and not otherwise barred from using the Services under applicable law. If you are over 13 years of age but under the age of majority in your respective jurisdiction, you hereby represent and warrant that your parent or legal guardian has read these Terms, and accepts them on your behalf. Parents and legal guardians are responsible for the acts of their minor children when using the Services, whether or not the parent or guardian has authorized such acts.

2. Registration and Your Information . If you want to use certain features of the Services you will need to create an account ( “Account” ).  Your Account is separate from any account you may have with any App Store (your “ App Store Account ”). It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.

3. No Account Sharing . You may not sell, resell, rent, lease, share or provide access to your Account to anyone else. We reserve all available legal rights and remedies to prevent unauthorized use of the Services, including, but not limited to, technological barriers, IP mapping, and, in serious cases, directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.

4. No False Accounts . You may not create an Account for anyone else or create an Account in a name other than your own.

6. FEEDBACK

We welcome feedback, comments and suggestions for improvements to the Services ( “Feedback” ). You can submit Feedback by emailing us at info@phxlabs.ca or by using the Feedback function within the Games, if available. If you choose to submit Feedback, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose, without any restriction or compensation to you.

7. CONTENT AND CONTENT RIGHTS

1. Definitions . For purposes of these Terms: (i) “Content” means all artwork, titles, themes, objects, characters, names, dialogue, catch phrases, stories, animation, concepts, sounds, audio-visual effects, methods of operation, musical compositions, and any other content within the Services; and (ii) “User Content” means any Content that you (or other Account holders) create or obtain outside the Services that you or another user makes available within the Services. To be clear, if Content is created within the Services, it is not User Content; only Content created or obtained from outside the Services that a user then makes available within the Services is User Content.

2. User Content . Phoenix Labs does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. By making any User Content available through Services you hereby grant to Phoenix Labs a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify (for formatting purposes), distribute, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services to you and to other Account holders. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Phoenix Labs on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.  We may, in our sole discretion, remove, edit, or disable any User Content at any time and for any reason, including if we determine that the User Content violates these Terms. We do not assume any responsibility or liability for User Content, for removing it, or not removing it. We do not pre-screen or review any User Content, and do not approve or endorse any User Content that may be available on the Services.

8. RIGHTS GRANTED BY PHOENIX LABS; LIMITATIONS AND REQUIREMENTS

1. Services . Subject to your compliance with these Terms, Phoenix Labs grants you a personal, limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services, including any Content, solely for your personal and non-commercial entertainment purposes, leveraging only the functionality of the Services.

2. Game Software . Subject to your compliance with these Terms, Phoenix Labs grants you a personal, limited, non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the Game Software on the device permitted by the App Store Agreement(s) (if applicable) or a computer that you own or control, and to use the Game Software solely to interact with the applicable Game for your own personal and non-commercial entertainment purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on any Game or Game Software; (ii) distribute, transfer, sublicense, lease, lend or rent any Game or Game Software to any third party; (iii) attempt to reverse engineer, decompile or disassemble any Game or Game Software; or (iv) make the functionality of any Game available to multiple users through any means.

3. Reservation of Rights . Phoenix Labs and its licensors own all title, ownership and intellectual property rights in the Services. Phoenix Labs reserves all rights in and to the Services not expressly granted to you under these Terms.

4. Service Limits Based on Where You Live . We may restrict, modify, or limit your access to any or all of the Services, depending on the territory in which you are located. Without limiting the foregoing, the Services may not be available (in whole or in part) where you are located or may only be available in a modified version.

5. Retail Purchase . We may offer codes or product keys that can be activated in the Games or used to activate the Games on the App Store. Subject to foreign exchange control regulations applicable in your jurisdiction, such codes or keys must be purchased (or otherwise obtained legally) through us or one of our authorized retailers to be valid. If you purchase such a code or key from a third party, that third party is responsible for addressing any issues you have with these codes or keys. Subject to applicable law, we will have no responsibility for these codes or keys purchased from any third party or if any purchase occurred in breach with any applicable foreign exchange control regulations.

6. Minimum Requirements . Each Game may have minimum requirements for the devices and systems on which you wish to access the Game. We may publish these minimum requirements on the applicable Site and/or otherwise notify you in writing. For an optimal experience, please ensure that your devices and systems will meet these requirements before accessing the applicable Game.

7. Seizure Warning . The Games may contain flashing lights, images, other luminous stimulations and/or loud noises which may induce epileptic seizures in certain individuals. If you or anyone in your household has an epileptic condition, please consult your doctor before accessing the Games. If you experience dizziness, altered vision, eye or muscle twitches, loss of awareness, disorientation, any involuntary movement, or convulsions while playing, please immediately discontinue accessing the Games and consult your doctor.

9. PLAY NICE AND PLAY FAIR; GENERAL PROHIBITIONS AND PHOENIX LABS ENFORCEMENT RIGHTS

1. We love games and we know you do too. To keep our community and the Games fun and welcoming for everyone there are some things you are not allowed to do. Do not use language that is defamatory, obscene, pornographic, vulgar or offensive, promotes discrimination, bigotry, racism, hatred, harassment, bullying or harm against any individual or group, or is violent or threatening or promotes violence or actions that are threatening to any person or entity. Do not cheat in the Games or interfere with or modify our Services, including through bots, cheats, hacks, exploits, mods, local memory (RAM) monitoring, or any software that does not come from Phoenix Labs and is capable of enabling cheating or otherwise interfering or modifying the Services.

2. In addition, you agree not to do any of the following with respect to the Services:

• Engage in any behavior, or post, upload, publish, submit or transmit any User Content 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 or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; or (iv) promotes illegal or harmful activities or substances.

• Disrupt the flow of communication through “chat spamming”, whether through live communications in-Game or otherwise;

• Select an Account name or username that suggests an affiliation with Phoenix Labs or any other company ^[a] , contains personally-identifying information of you or any other Account-holder, is offensive, vulgar, obscene, sexually explicit, or is racially, ethnically or otherwise objectionable;

• Log into or otherwise using another person’s account;

• Disrupt other players’ enjoyment of the Services through action or inaction (e.g., “trolling”);

• Use, display, mirror or frame the Services or any individual element within the Services, Phoenix Labs’ name, any Phoenix Labs trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Phoenix Labs’ express written consent;

• Access, tamper with, or use non-public areas of the Services, Phoenix Labs’ computer systems, or the technical delivery systems of Phoenix Labs’ providers;

• Attempt to probe, scan or test the vulnerability of any Phoenix Labs system or network or breach any security or authentication measures;

• Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Phoenix Labs or any of Phoenix Labs’ providers or any other third party (including another user) to protect the Services or Content;

• Attempt to access or search the Services or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Phoenix Labs or other generally available third-party web browsers;

• Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;

• Use any meta tags or other hidden text or metadata utilizing a Phoenix Labs trademark, logo URL or product name without Phoenix Labs’ express written consent;

• Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;

• Forge any networking packets or any part of the header information in any email or newsgroup posting ^[b] , or in any way use the Services to send altered, deceptive or false source-identifying information;

• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;

• Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;

• Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;

• Impersonate or misrepresent your affiliation with any person or entity;

• Violate any applicable law or regulation; or

• Encourage or enable any other individual to do any of the foregoing.

The Services (and particularly our Games) may have built-in mechanisms designed to prevent granting one user an unfair advantage over other users (these actions are “ Cheating ” and the software is the “ Cheat Detection Software ”). We may add or update our Cheat Detection Software periodically as we may require in our sole discretion. The Services and/or the Cheat Detection Software may collect and transmit details about your Account, gameplay, and unauthorized programs or processes in connection with Cheating, subject to our Privacy Policy and applicable law. In the event that we in our sole discretion conclude that you are Cheating, you agree that we may exercise any or all of our rights under these Terms, including termination of these Terms and your access to our Services. In addition, if you Cheat in one Game or Service, we may terminate your access to use all of our Games and Services

Although we’re not obligated to monitor access to or use of the Services or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

10. VIRTUAL GOODS AND GAME CURRENCY

1. Purchasing or Obtaining Virtual Goods and Game Currency . We may offer certain upgrades and options within our Games that you can buy with real world currency, including, but not limited to, in-game currency (“ Game Currency ”), character skins, gear and other customizations for your in-Game characters, and other such digital add-on items that may improve your Game experience in some way (“ Virtual Goods ”). Except as otherwise communicated to you within the functionality of the Game, Game Currency and Virtual Goods are not transferable from one Game to another. When you purchase Game Currency, Virtual Goods, or the Game itself (each, a “ Transaction ”), your purchase will be made through the functionality available through the App Store or other platforms we make available to you. Prior to making a Transaction, you should make sure you fully understand the agreement that covers your Transaction, whether that agreement is an App Store Agreement or another payment platform agreement (like a third-party payment processor’s terms). There may be limits to the quantity and number of times you can purchase Virtual Goods, Game Currency, or other aspects of your Transaction. For example, there may be a maximum amount of Game Currency you are able to hold (in-Game) or purchase at a given time, or a maximum number of Transactions you may make per day; these additional restrictions may be communicated to you via the functionality of the Services. We may, from time to time, modify, amend, or supplement our fees, billing methods and terms applicable to Game Currency, Virtual Goods or to any purchases, and post those changes in these Terms, in separate terms and conditions or in other terms or agreements posted on the applicable website or as part of the Game or otherwise provided to you by us. If any change is unacceptable to you, you may terminate the use of your Account at any time.

2. Your License to Virtual Goods and Game Currency . Virtual Goods and Game Currency are digital items and your use of them is governed by these Terms and the App Store Agreement(s).  VIRTUAL GOODS AND GAME CURRENCY HAVE NO MONETARY VALUE AND CANNOT BE REDEEMED FOR CASH. VIRTUAL GOODS AND GAME CURRENCY ARE NON-TRANSFERABLE AND NON-TRADABLE, IN WHOLE OR PART, AND ARE NOT PROVIDED FOR INVESTMENT PURPOSES. Provided you comply with the terms of these Terms and the App Store Agreement(s), we grant you the following license: a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to use any Virtual Goods or Game Currency you gain access to, whether purchased or otherwise obtained, solely in connection with your use of the applicable Game and within the applicable Game and for no other purpose.  Unless expressly permitted by us, you may not trade any such Virtual Good or Game Currency with others. We may cancel, revoke, or otherwise prevent the use of Virtual Good or Game Currency if we suspect any unauthorized or fraudulent activity, and/or to correct any erroneous application of any Virtual Goods or Game Currency to your Account.

3. Changes to Game Currency and Virtual Goods . Except as otherwise prohibited by applicable law, we, in our sole discretion, may modify, substitute, replace, suspend, cancel or eliminate any Game Currency or Virtual Goods, including your ability to access or use Game Currency or Virtual Goods, without notice or liability to you. YOU AGREE THAT YOU WON’T ASSERT OR BRING ANY CLAIM AGAINST US, OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR LICENSORS RELATING TO (A) A CLAIM THAT YOU HAVE A PROPRIETARY INTEREST IN ANY GAME CURRENCY OR VIRTUAL GOODS; OR (B) A CLAIM FOR AN ALLEGED MONETARY VALUE OF GAME CURRENCY OR VIRTUAL GOODS LOST UPON (I) DELETION OR SUSPENSION OF YOUR ACCOUNT, (II) ADJUSTMENTS TO THE GAME THAT RESULT IN THE VALUE OF VIRTUAL GOODS OR GAME CURRENCY CHANGING, OR (III) MODIFICATION, TERMINATION OR EXPIRATION OF THESE TERMS.

4. Refunds . Subject to applicable law, (i) all Games, Virtual Goods, and Game Currency remain our property, have no monetary value and are not redeemable, refundable, or eligible for any other alternate remedy for any “real world” money or anything of monetary value, unless they are defective, unavailable, or do not perform in accordance with the specifications we provide; (ii) we may revoke your license to such Games, Virtual Goods and/or Game Currency at any time consistent with these Terms without notice or liability to you; and (iii) by purchasing and using any Games, Virtual Goods and/or Game Currency, you hereby waive any statutory right you may have to withdraw from your agreement to purchase the applicable Game, Virtual and/or Game Currency and you agree that you will therefore not be eligible to receive a refund (or any alternative remedy) in relation to such Game, Virtual Good and/or Game Currency. Where applicable law does not permit you to waive your right to so withdraw, you hereby agree that such withdrawal right expires immediately upon purchase and delivery of your Game, Virtual Good and/or Game Currency, as permitted by applicable law.

11. DMCA/COPYRIGHT POLICY

Phoenix Labs respects copyright law and expects its users to do the same. It is Phoenix Labs’ policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Phoenix Labs’ Copyright and IP Policy at https://phxlabs.ca/dmca-policy , for further information.

12. LINKS TO THIRD PARTY WEBSITES OR RESOURCES

The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.

13. TERMINATION

We may terminate your access to and use of the Services, at our sole discretion, at any time and without liability or notice to you, including, without limitation, in the event that you breach these Terms or applicable App Store Agreement(s) or if the owner of the applicable App Store terminates your App Store Account. You may also terminate these Terms by deleting and uninstalling the Game on all of your devices or by deleting your Account or App Store Account, as applicable . Upon any termination of these Terms, the rights granted to you will automatically terminate, you may no longer exercise any of those rights. This sentence of Section 13 and the following Sections will survive termination of these Terms: 6, 8(c), 14, 15, 16, 17, 18 and 19.

14. WARRANTY DISCLAIMERS

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Services.

15. INDEMNITY

You will indemnify and hold harmless Phoenix Labs and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services, (ii) your User Content, or (iii) your violation of these Terms.

16. LIMITATION OF LIABILITY

1. NEITHER PHOENIX LABS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PHOENIX LABS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

2. IN NO EVENT WILL PHOENIX LABS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO PHOENIX LABS FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO PHOENIX LABS, AS APPLICABLE.

3. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PHOENIX LABS AND YOU.

4. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS OF DAMAGES SET FORTH ABOVE, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. INSTEAD, IN SUCH JURISDICTIONS, THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY THE LAWS OF SUCH JURISDICTIONS. ALSO, YOU MAY HAVE ADDITIONAL LEGAL RIGHTS IN YOUR JURISDICTION, AND NOTHING IN THESE TERMS WILL PREJUDICE SUCH RIGHTS THAT YOU MAY HAVE AS A CONSUMER OF THE SERVICES.

17. GOVERNING LAW AND FORUM CHOICE

These Terms and any action related thereto will be governed by Federal Arbitration Act, federal arbitration law, and the laws of the State of California without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 18 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Phoenix Labs are not required to arbitrate will be the state and federal courts located in San Franscisco, California, and you and Phoenix Labs each waive any objection to jurisdiction and venue in such courts.

18. DISPUTE RESOLUTION

1. Mandatory Arbitration of Disputes . We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “ Disputes ”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding . You and Phoenix Labs agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Phoenix Labs are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.

2. Exceptions . As limited exceptions to Section 18(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.

3. Conducting Arbitration and Arbitration Rules . The arbitration will be conducted by the American Arbitration Association (“ AAA ”) under its Consumer Arbitration Rules (the “ AAA Rules ”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org .

Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

4. Arbitration Costs . Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.

5. Injunctive and Declaratory Relief . Except as provided in Section 18(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.

6. Class Action Waiver . YOU AND PHOENIX LABS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.

7. Severability . With the exception of any of the provisions in Section 18(f) of these Terms (“ Class Action Waiver ”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.

19. GENERAL TERMS

1. These Terms constitute the entire and exclusive understanding and agreement between Phoenix Labs and you regarding the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Phoenix Labs and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms, by operation of law or otherwise, without Phoenix Labs’ prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null. Phoenix Labs may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

2. Any notices or other communications provided by Phoenix Labs under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

3. Phoenix Labs’ failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Phoenix Labs. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

20. CONTACT INFORMATION

If you have any questions about these Terms or the Services, please contact Phoenix Labs at legal@phxlabs.ca .