Phantom Developer Portal Terms of Service

Agreement to Portal Terms.

By using the Phantom Developer Portal (the “Portal” or the “Platform”) you are agreeing to these Phantom Developer Portal Terms of Service (these “Portal Terms”). These Portal Terms set forth the terms and conditions that govern your access and use of the Portal and Services (as defined below) and constitute a legally binding agreement between Phantom Technologies, Inc. (“Phantom” or “we”) and you and/or the entity you represent (“you”, “your” or “user”). References to Phantom or we contained herein include Phantom’s affiliates and subsidiaries. By entering into these Portal Terms on behalf of a company, legal entity or other organization, you represent that you have the authority to bind the entity to these Portal Terms. If there is a conflict between these Portal Terms and any separate signed written agreement or Order Form between Phantom and you then the terms of that separate agreement or Order Form will control.

These Portal Terms are effective as of the first day that you use the any of the APIs, SDKs or other tools and functionality provided to via the Portal (collectively, the “Services”) either at the time of first use or which may be added to the Portal thereafter.

ARBITRATION NOTICE: THESE PORTAL TERMS CONTAIN AN ARBITRATION CLAUSE FOR USERS IN THE UNITED STATES AND CANADA, WHICH PROVISION IS CONTAINED BELOW UNDER THE HEADING “DISPUTE RESOLUTION”. IF YOU ARE LOCATED IN THE UNITED STATES OR CANADA, YOU AGREE THAT DISPUTES BETWEEN YOU AND PHANTOM WILL BE RESOLVED BY BINDING ARBITRATION, AND YOU WAIVE YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING.

Privacy Policy.

By agreeing to these Portal Terms and using the Services you also consent to the collection, use, disclosure and other handling of information as described in our Privacy Policy. The Privacy Policy is incorporated by reference to these Portal Terms in its entirety and all references to these Portal Terms include a reference to the Privacy Policy.

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 16 years of age; if you are a child under 16 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 16 years of age, we will delete that information as quickly as possible. If you believe that a child under 16 years of age may have provided us personal information, please contact us at [email protected].

Copyright Dispute Policy.

We respect others’ intellectual property rights, and we reserve the right to delete or disable User Content (as defined below) alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here.

Updates to these Portal Terms or Services.

We may modify these Portal Terms at any time at any time by posting revised Portal Terms on the Phantom website or by providing you with a copy. These Portal Terms will be effective as of the date posted and by continuing use of the Services after these Portal Terms have been modified you agree to be bound by the modified Portal Terms. If you do not agree to be bound by the modified Portal Terms, then you must refrain from using the Services.

We may also update, suspend or discontinue the Services at any time without notice to you. You are responsible for reviewing API and SDK documentation regularly and ensuring that your systems are properly configured to be compatible with the Services. You acknowledge that updates to the Services may adversely impact how your application interacts with the Services and that you alone are responsible for ensuring that the Services are properly integrated with your products and services.

Phantom Portal Access and Account.

Contingent upon your compliance with these Portal Terms, Phantom grants you a non-exclusive, limited, personal, non-sublicensable, non-transferable right and license to access the Portal and any Services contained therein during the Term.

In order to access and use the Services you will be required to create a Phantom Portal Account using your email address. You may be subject to additional registration requirements in order to access certain Services or to be eligible for revenue partnerships, and revenue partnerships may be subject to additional terms. We reserve the right to suspend or terminate your Account if you provide inaccurate, untrue, or incomplete information, or if you fail to comply with the Account registration requirements.

You are responsible for maintaining the confidentiality of the login credentials associated with your Account. We may provide the ability for you to grant additional users access to your Account under separate usernames and passwords (“Authorized Users”). Authorized Users will also be required to agree to and comply with these Portal Terms. You agree that you are responsible for all activities that occur under your Account if your login credentials were used to access the Account, even if such access was not authorized by you. You are also responsible for any activities of Authorized Users if their login credentials were used to access the Account, even if such access was not authorized by the applicable Authorized User. If you or any Authorized User’s login credentials are compromised you agree to notify Phantom immediately so that steps can be taken to secure your Account.

In connection with your use of the Services you may be provided with a Client ID, which is a unique identifier for your application and must be used in connection with certain APIs and SDKs available via the Portal. You, along with any Authorized Users are responsible for maintaining the confidentiality of your Client ID. You may not sell, sublicense, transfer or otherwise disclose your Client ID to any third party.

Embedded Wallets; Relationship with End Users.

The Services include, among other things, access to the Phantom embedded wallet SDK (the “Embedded Wallets” product). Embedded Wallets provides users of your application (“End Users”) the ability to create a digital asset wallet directly on your application’s website or via your mobile application without having to navigate to a separate site in order to create a wallet or download a wallet extension. If you integrate Embedded Wallets via the Services you may be provided with a unique API key which is used to connect your application with Embedded Wallets created by End Users on your site and you will also be able to customize your End Users’ Embedded Wallet experience.

You understand that while the End Users’ interactions with and any transactions made via your application will be subject to your application’s terms and conditions and privacy policy, their use of the Embedded Wallet will be subject to the Phantom Wallet Terms of Service and Privacy Policy.

User Content; Acceptable Use.

You may be able to make available content or information to Phantom users via the Services (“User Content”). Phantom has the absolute discretion to remove User Content at any time and for any reason without notice to you. User Content must adhere to the acceptable use restrictions outlined in this section. Any violation of the acceptable use restrictions may result in the suspension or termination of your access to the Portal or certain Services. You agree to abide by the restrictions outlined here and will not encourage, enable or otherwise facilitate others to violate these restrictions.

By making User Content available through the Services, you hereby do and shall grant Phantom a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with Phantom’s website, the Services, the Portal and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of this website or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your account or your use of the Portal and the Services. For clarity, the foregoing license grant to us does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.

As a condition of using the Portal and the Services, you represent, warrant and agree that you will not submit User Content or otherwise use the Portal and the Services in ways that:

• Use the Portal or the Services in a manner not expressly authorized by these Portal Terms;
• Violate, misappropriate, or infringe the rights of Phantom, its licensors, or others, including privacy, publicity, intellectual property or other rights;
• Are illegal, obscene, defamatory, threatening, intimidating, harassing, hateful or racially or ethnically offensive, or that instigate or encourage conduct that would be illegal or otherwise inappropriate or objectionable;
• Involve falsehoods, misrepresentations, or misleading statements, including statements that could constitute market manipulation or any other activities in efforts to defraud Phantom or End Users;
• Violate any applicable law or regulation, including, without limitation any applicable anti-money laundering, anti-proliferation and anti-terrorism financing laws and sanctions programs, including but not limited to, the U.S. Bank Secrecy Act, those enforced by the U.S. Department of Treasury’s Office of Foreign Assets Controls, or the U.S. federal securities laws, including the Securities Act of 1933, the Securities Exchange Act of 1934 or any applicable rules promulgated thereunder;
• Use the Portal or Services in a manner that could cause Phantom to violate any applicable law or regulation;
• Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by us or any of our service providers or any other third party to protect the Portal or the Services;
• Interfere with, or attempt to interfere with, the access to the Portal or Services for other Portal users or with End User’s access to the Phantom wallet, including, without limitation, transmitting a virus or other malware, overloading, flooding, spamming, or making any attempts to do the same;
• Decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Portal or the Services;
• Jeopardize the security of your or your Authorized Users’ respective login credentials and Client IDs, or any other user’s account (such as allowing someone else to access the Portal as you); or
• Attempt, in any manner, to obtain the Client ID, login credentials password or other security information from any other user.

Rights & Content Ownership.

You retain your ownership rights in your application. We reserve and retain all right, title and interest, including all intellectual property rights in the content, features, and functionality made available on or through the Portal or the Services, including but not limited to the APIs, SDKs or other software made available through the Portal, all information, documentation, services and branding an all improvements, enhancements, modifications and derivative works thereto, unless they are expressly granted to you in these Portal Terms. All rights not expressly granted by these Portal Terms are retained by us.

If you use the Embedded Wallet Service, you represent and warrant that your application, including its name and all of its content, does not infringe upon our intellectual property rights or the rights of any third party. Should you discover, determine or believe that your application infringes any intellectual property rights you agree to notify us immediately.

Representations and Warranties.

You represent and warrant that:

• If you are an individual, you are of legal age to enter into a binding contract. If you are agreeing to these Portal Terms on behalf of a legal entity, you represent and warrant that you are authorized to agree to these Portal Terms on that entity’s behalf and bind them to these Portal Terms.

• If you are entering into these Portal Terms on behalf of a legal entity you further represent that (a) it is a duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into these Portal Terms and to perform its obligations hereunder; (c) these Portal Terms are legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of these Portal Terms do not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.

• You agree to comply with all applicable U.S. and non-U.S. export control and trade sanctions laws (“Export Laws”). Without limiting the foregoing, you may not use the Portal or the Services if (i) you are in, under the control of, or a national or resident of Cuba, Iran, North Korea, Sudan, or Syria or any other country subject to United States embargo, UN Security Council resolutions, HM Treasury’s financial or other sanctions regime, or if you are on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Commerce Department's Denied Persons List, Unverified List, Entity List HM Treasury’s financial or other sanctions regime; or (ii) you intend to provide any of your products or services to Cuba, Iran, North Korea, Sudan or Syria or any other country subject to United States embargo or HM Treasury’s financial or other sanctions regime (or a national or resident of one of these countries), or to a person on the Specially Designated Nationals List, Denied Persons List, Unverified List, Entity List, or HM Treasury’s financial or other sanctions regime.

• Subject to any exemptions or licenses, neither you, nor anyone controlling or acting on behalf of a legal entity you represent, including any subsidiaries, affiliates, officers, directors, employees, agents, contractors, consultants or beneficial owners, are the subject to any Export Laws or are located or headquartered in a comprehensively sanctioned country or jurisdiction, including Iran, Cuba, North Korea, Syria and the Crimea, People’s Republic of Donetsk, and People’s Republic of Luhansk regions of Ukraine, or in a country or jurisdiction has been designated by the U.S. Government as a “terrorist supporting” country, and you represent that you are not listed on any U.S. Government list of prohibited or restricted parties.

• You will not use the Services to conduct any criminal, fraudulent or deceptive activity.

Should we request, you agree to provide us with information and documentation necessary to substantiate these representations and warranties and your use of the Services.

Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH IN THESE PORTAL TERMS, PHANTOM AND ITS LICENSORS, SUPPLIERS, PARTNERS, PARENT, SUBSIDIARIES OR AFFILIATED ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, CONSULTANTS, CONTRACT EMPLOYEES, REPRESENTATIVES AND AGENTS, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (PHANTOM AND ALL SUCH PARTIES TOGETHER, THE “PHANTOM PARTIES”) HEREBY MAKE NO REPRESENTATIONS AND WARRANTIES CONCERNING THE SERVICES, INCLUDING WITHOUT LIMITATION REGARDING ANY USER CONTENT CONTAINED IN OR ACCESS THROUGH THE SERVICES, AND THE PHANTOM PARTIES WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES OR ANY CLAIMS, ACTIONS, SUITS PROCEDURES, COSTS, EXPENSES, DAMAGES OR LIABILITIES ARISING OUT OF USE OF, OR IN ANY WAY RELATED TO YOUR PARTICIPATION IN, THE SERVICES. THE PHANTOM PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH OR IN CONNECTION WITH THE SERVICES. THE PHANTOM PARTIES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. THE PORTAL AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS. PHANTOM DOES NOT WARRANT THAT (A) THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR (B) THE SERVICES WILL MEET CUSTOMER’S OR ANY AUTHORIZED USERS’ REQUIREMENTS OR EXPECTATIONS. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Termination.

We may terminate or suspend these Portal Terms, or terminate or suspend your access to the Portal or to one or more of the Services, in whole or in part at our sole discretion. While we will attempt to provide notice of such termination or suspension where possible, we reserve the right to do so without prior notice. Upon termination or suspension of these Portal Terms, your right to use the Portal and/or any suspended or terminated Services will cease immediately.

You may terminate these Portal Terms by discontinuing use of the Portal and the Services at any time. Please consult the Privacy Policy to understand how we will treat the information you provide to us once you have stopped using the Services.

Fees.

Unless otherwise stated on an Order Form, access to the Portal and the Services are free of charge.

Limitation of Liability and Indemnification.

You agree to release, indemnify, defend and hold harmless the Phantom Parties from and against any and all claims, disputes, demands, liabilities, damages (actual and consequential), losses, and costs and expenses, including reasonable legal and accounting fees arising from or in any way connected to:

• Your access to the Portal or use of the Services (including the acts of third parties using your Account);
• Any claims related to your violation of any law, rule or regulation;
• Your User Content; and
• Your violation of these Portal Terms.

In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL THE PHANTOM PARTIES BE LIABLE FOR MATTERS ARISING OUT OF OR IN CONNECTION WITH THESE PORTAL TERMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), OR FOR ANY (A) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID OR PAYABLE HEREUNDER DURING THE PREVIOUS 6 MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. FURTHER, THE PHANTOM PARTIES SHALL NOT BE LIABLE FOR OR COMPENSATE YOU (1) IN CONNECTION WITH YOUR INABILITY TO USE THE PORTAL OR ACCESS THE SERVICES OR THE DISCONTINUATION OF THE SERVICES FOR ANY REASON, (2) FOR CLAIMS ARISING FROM USER ERROR, OR (3) FOR UNAUTHORIZED ACCESS TO THE PORTAL OR THE SERVICES OR THE ACTIVITIES OF UNAUTHORIZED THIRD PARTIES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Confidentiality.

For purposes of these Portal Terms, “Confidential Information” means any and all technical and non-technical information disclosed by the parties, either directly or indirectly, in any form (whether in oral, written, graphic, electronic or machine-readable form), which may include without limitation: (a) patent applications, (b) trade secrets, and (c) other proprietary or confidential information, including, without limitation, ideas, technology, works of authorship, models, inventions, know-how, processes, algorithms, software programs, software source documents, information related to current, future, and proposed products and services, information concerning research, experimental work, development, design details or specifications, engineering, financial information, procurement requirements, purchasing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, and marketing plans and information. Confidential Information does not include any information the receiving party can prove: (i) was in, or comes into the public domain through no fault of the receiving party, (ii) rightfully was in or comes into the receiving party’s possession free of any obligation of confidence. The parties agree that at all times and notwithstanding any termination or expiration of these Portal Terms they will hold in strict confidence and not disclose to any third party any Confidential Information of the other party, except as approved in writing by the disclosing party, and will use the Confidential Information for no purpose except as permitted under these Portal Terms. The receiving party shall protect the Confidential Information from inadvertent or unauthorized disclosure, access, or use in the same manner as it protects its own Confidential Information of a similar nature, but in no event less than reasonable care. The receiving party shall immediately notify the disclosing party upon discovery of any loss or unauthorized disclosure of the Confidential Information. Upon termination or expiration of these Portal Terms, or upon written request of the disclosing party, the receiving party shall promptly return to the disclosing party or destroy its Confidential Information. The receiving party may disclose Confidential Information as required by law or court order provided that the receiving party provides the disclosing party with reasonable prior written notice of the disclosure and reasonable assistance in the disclosing party’s efforts to prevent or limit the disclosure.

Assignment.

You may not assign, delegate or transfer these Portal Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Phantom’s prior written consent. We may transfer, assign, or delegate these Portal Terms and our rights and obligations without consent.

Dispute Resolution.

Governing Law

These Portal Terms shall be construed and enforced in accordance with the laws of the state of California applicable to contracts entered into and performed in California by residents thereof; provided that all provisions hereof related to arbitration shall be governed by and construed in accordance with the Federal Arbitration Act (U.S. Code Title 9).

Mandatory Arbitration

PLEASE READ THIS "MANDATORY ARBITRATION" PROVISION VERY CAREFULLY. IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND PHANTOM, SUBJECT TO THESE PORTAL TERMS AND OPT-OUT OPTION SET FORTH BELOW.

You and Phantom agree that any and all past, present and future disputes, claims, or causes of action arising out of or relating to your use of any of the Services, these Portal Terms, or any other controversies or disputes between you and Phantom (including, without limitation, disputes regarding the effectiveness, scope, validity or enforceability of this agreement to arbitrate) (collectively, "Dispute(s)"), shall be determined by arbitration, unless (A) your Country of Residence does not allow this agreement to arbitrate; (B) you opt out as provided below; or (C) your Dispute is subject to an exception to this agreement to arbitrate set forth below. You and Phantom further agree that any arbitration pursuant to this Section shall not proceed as a class, group or representative action. The award of the arbitrator may be entered in any court having jurisdiction.

"Country of Residence" for purposes of this agreement to arbitrate means the country in which you hold citizenship or legal permanent residence, as well as any country from which you regularly access and use the Services. If more than one country meets that definition for you, then your country of citizenship or legal permanent residence shall be your Country of Residence, and if you have more than one country of citizenship or legal permanent residence, it shall be the country with which you most closely are associated by permanent or most frequent residence.

Phantom wants to address your concerns without the need for a formal legal dispute. Before filing a claim against Phantom, you agree to try to resolve the Dispute informally by contacting Phantom at [email protected] to notify Phantom of the actual or potential Dispute. Similarly, Phantom will undertake reasonable efforts to contact you to notify you of any actual or potential dispute to resolve any claim we may possess informally before taking any formal action. The party that provides the notice of the actual or potential Dispute (the "Notifying Party") will include in that notice (a "Notice of Dispute") the name of User, the Notifying Party's contact information for any communications relating to such Dispute (including for the Notifying Party's legal counsel if it is represented by counsel in connection with such Dispute), and sufficient details regarding such Dispute to enable the other party (the "Notified Party") to understand the basis of and evaluate the concerns raised. If the Notified Party responds within ten (10) business days after receiving the Notice of Dispute that it is ready and willing to engage in good faith discussions in an effort to resolve the Dispute informally, then each party shall promptly participate in such discussions in good faith.

If, notwithstanding the Notifying Party's compliance with all of its obligations under the preceding paragraph, a Dispute is not resolved within 30 days after the Notice of Dispute is sent (or if the Notified Party fails to respond to the Notice of Dispute within ten (10) business days), the Notifying Party may initiate an arbitration proceeding as described below. If either party purports to initiate arbitration without first providing a Notice of Dispute and otherwise complying with all of its obligations under the preceding paragraph, then, notwithstanding any other provision of these Portal Terms, the arbitrator(s) will promptly dismiss the claim with prejudice and will award the other party all of its costs and expenses (including, without limitation, reasonable attorneys' fees) incurred in connection with such Dispute.

We both agree to arbitrate (unless you opt out as described below). You and Phantom each agrees to resolve any Disputes that are not resolved informally as described above through final and binding arbitration as discussed herein, except as set forth under "Exceptions to Agreement To Arbitrate" below.

If you do not wish to be subject to this agreement to arbitrate, you may opt out of this arbitration provision by sending a written notice to Phantom at [email protected] within thirty (30) days of first accepting these Portal Terms. You must date the written notice, and include your first and last name, address, and a clear statement that you do not wish to resolve disputes with Phantom through arbitration. If no written notice is submitted by the 30-day deadline, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to the exceptions set forth below. By opting out of the agreement to arbitrate, you will not be precluded from using the Phantom Service, but you and Phantom will not be permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.

You and Phantom agree that the American Arbitration Association ("AAA") will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes in effect at the time arbitration is sought ("AAA Rules"). Those rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator shall be authorized to award any remedies, including injunctive relief, that would be available to you hereunder in an individual lawsuit. Notwithstanding any language to the contrary in this paragraph, if a party seeks injunctive relief that would significantly impact other Phantom users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section shall make that determination. If the arbitrator determines a three- person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.

YOU AND PHANTOM WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Phantom are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Phantom over whether to vacate or enforce an arbitration award, YOU AND PHANTOM WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

You and Phantom further agree that the arbitration will be held in the English language in San Francisco, California, or, if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If Phantom elects arbitration, Phantom shall pay all of the AAA filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the AAA Rules, or in accordance with countervailing law if contrary to the AAA Rules. However, if the value of the relief sought is $10,000 or less, at your request, Phantom will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator(s) finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the AAA Rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided herein or required by law.

You and Phantom agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor Phantom may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a "Collective Arbitration"). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Phantom will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. "Concurrently" for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR PHANTOM SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. Without limiting the foregoing, any challenge to the validity of this paragraph shall be determined exclusively by the arbitrator.

Notwithstanding your and Phantom's agreement to arbitrate Disputes, either you or Phantom retain the following rights:

You and Phantom retain the right (a) to bring an individual action in small claims process in the courts of your Country of Residence; and (b) to seek provisional relief in aid of arbitration in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. Further, this agreement to arbitrate does not deprive you of the protection of the mandatory provisions of the consumer protection laws in your Country of Residence; you shall retain any such rights and this agreement to arbitrate shall be construed accordingly.

Except as otherwise required by applicable law or provided in these Portal Terms, in the event that the agreement to arbitrate is found not to apply to you or your Dispute, you and Phantom agree that any judicial proceeding may only be brought in a court of competent jurisdiction in California, United States. Both you and Phantom consent to venue and personal jurisdiction there; provided that either party may seek provisional relief in aid of arbitration to enforce its intellectual property rights as provided above or bring an action to confirm an arbitral award in any court having jurisdiction.

This agreement to arbitrate shall survive the termination or expiration of these Portal Terms. With the exception of the provisions of this agreement to arbitrate that prohibit Collective Arbitration, if a court decides that any part of this agreement to arbitrate is invalid or unenforceable, then the remaining portions of this agreement to arbitrate shall nevertheless remain valid and in force. In the event that a court finds the prohibition of Collective Arbitration to be invalid or unenforceable, then the entirety of this agreement to arbitrate shall be deemed void (but no provisions of these Portal Terms unrelated to arbitration shall be void), and any remaining Dispute must be litigated in court pursuant to the preceding paragraph.

General Provisions.

Each party is an independent contractor. All suggestions, enhancement requests, recommendations or other feedback provided by you relating to the Services or Platform (collectively, “Feedback”), will be the sole and exclusive property of Phantom and Customer shall and hereby does assign any rights in such Feedback to Phantom. Customer grants Phantom a non-exclusive, limited, non-transferable license, and royalty-free license to use its trademarks, service marks, trade names and logos for promotional and marketing purposes in order to identify Customer as a customer of Phantom. These Portal Terms supersede all prior written or oral understandings between the parties regarding the subject matter of these Portal Terms and it may be waived only in writing. These Portal Terms shall be governed by the laws of California, without regard to its conflict of law rules, and any legal action must be brought exclusively within San Francisco, California. If any provision of these Portal Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Portal Terms will otherwise remain in full force and effect. These Portal Terms may change from time to time and we will provide a notice on our Platform or notify you by some other means if so. Additionally, since we are always trying to improve our Platform and Services, we may, in our sole discretion, make changes to, suspend or discontinue certain parts of the Platform of Services. We will try to give you notice on our Platform or through some other means when we make material changes to the Platform or Services. Any new or modified terms will be immediately effective and will apply for the duration of the subscriptions(s) that you have selected. Except for changes by us as described here, no other amendment or modification of these Portal Terms will be effective unless in writing and signed by both you and us. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that Phantom may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Phantom, and you do not have any authority of any kind to bind Phantom in any respect whatsoever. Except as expressly set forth in the agreement to arbitrate, you and Phantom agree there are no third-party beneficiaries intended under these Portal Terms.

Contact and Notices.

If you have feedback, suggestions or questions regarding the Platform please visit help.phantom.com. Any required notices under these Portal Terms should be sent to [email protected].