Welcome to PHYGITAL FX. These Terms and Conditions (the “Terms”) set forth a legally binding agreement between you and Physical Digital Global FX, LLC, the entity giving you access to www.phygitalfx.com, or one of our parents, subsidiaries, or affiliates (collectively, “PHYGITAL FX,” “we”, “our”, or “us”), and govern your use of any online services we control that link to these Terms, including all features and content available through such online services (collectively, the “Service”). By using the Service, you accept and agree to be bound by these Terms. If you do not agree to these Terms, do not use the Service.
IMPORTANT NOTICE: ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: BY AGREEING TO BE BOUND BY THESE TERMS, YOU AGREE THAT ALL DISPUTES BETWEEN US WILL BE RESOLVED BY BINDING ARBITRATION, EXCEPT FOR CERTAIN LIMITED TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER SECTION . YOUR AGREEMENT TO ARBITRATE MEANS YOU ARE GIVING UP THE RIGHT TO GO TO COURT AND THE RIGHT TO A TRIAL BY JURY, AND INSTEAD, DISPUTES WILL BE DECIDED BY A NEUTRAL ARBITRATOR. YOU ALSO AGREE THAT ALL DISPUTES BETWEEN US, WHETHER IN COURT OR IN ARBITRATION, WILL BE BROUGHT ONLY ON AN INDIVIDUAL BASIS AND YOU ARE WAIVING YOUR RIGHT TO BRING OR PARTICIPATE IN A CLASS ARBITRATION OR CLASS ACTION.
In some instances, both these Terms and separate terms elsewhere on the Service will apply to your use of the Service (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
For details on how we process your information, please see our Privacy Policy.
A. Content
The Service contains: (i) materials and other items relating to PHYGITAL FX and our products or services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of PHYGITAL FX; and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). All right, title, and interest in and to the Service and the Content is the property of PHYGITAL FX or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
B. Limited License.
Subject to your strict compliance with these Terms and any applicable Additional Terms, PHYGITAL FX grants you a limited, non-exclusive, revocable, non-assignable, and non-transferable license to download and display the Content for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be suspended or terminated for any reason, in PHYGITAL FX’s sole discretion, and without advance notice or liability. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. All rights not expressly granted to you are reserved by PHYGITAL FX and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise.
C. Restrictions.
You may not use the Service unless you are at least eighteen (18) years old.
You may not: (i) use the Service or Content for any political or commercial purpose; (ii) engage in any activity in connection with the Service or Content that is unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable to PHYGITAL FX; (iii) harvest any information from the Service or Content; (iv) reverse engineer or modify the Service or Content; (v) interfere with the proper operation of or any security measure used by the Service or Content; (vi) infringe any intellectual property or other right of any third party; (vii) use the Service or Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (viii) otherwise violate these Terms or any applicable Additional Terms. Any unauthorized use of the Service or Content is prohibited.
You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Service and Content.
D. Availability
PHYGITAL FX may suspend or terminate the availability of the Service and Content, in whole or in part, to any individual user or all users, for any reason, in PHYGITAL FX’s sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Service, or upon notice from PHYGITAL FX, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service and Content.
E. Equipment.
You are responsible for obtaining and maintaining all connectivity, computer software, hardware and other equipment needed for access to and use of the Service and all charges related to the same.
F. Third Parties.
The Service contains content from and links to websites, platforms operated or controlled by third parties. In addition, we may integrate technologies operated or controlled by third parties into parts of our Service. To the extent permitted by applicable law, we are not responsible for any loss or damage relating to third parties. Please see our Privacy Policy for further details regarding data processing by third parties.
G. Accounts.
You may be given an opportunity to create an account for the Service. If you register an account, you agree to: (i) provide true, accurate, current, and complete information; (ii) maintain and update the information to keep it true, accurate, current, and complete; (iii) protect and prevent unauthorized access to your account; (iv) not transfer or share your account with any third party; and (v) immediately notify us of any suspected or actual unauthorized use of your account or breach of security. Please note that you are solely responsible for all activities that occur under your account, whether or not you authorized the activity, and we are not liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.
To the extent applicable, you acknowledge that any submissions you may make to the Service (i.e., user-generated content including but not limited to: comments, feedback, reviews, text, video, audio, photographs, messages, or other materials or items) (each, a “Submission”) may be edited, removed, modified, published, transmitted, and displayed by PHYGITAL FX and you waive any rights you may have in having the material altered or changed in a manner not agreeable to you.
You grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to host, store, use, display, reproduce, modify, adapt, edit, combine with other materials, publish, distribute, create derivative works from, promote, exhibit, broadcast, syndicate, sublicense (including to third party media channels, platforms, and distributors), publicly perform, publicly display, and otherwise use and exploit in any manner whatsoever, or grant third parties the right to do any of the foregoing, all or any portion of your Submissions, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.
To the extent permitted by applicable law, you further irrevocably grant us the right, but not the obligation, to use your name in connection with your Submissions. You also agree to waive any right of approval for our use of the rights granted herein and agree to waive any moral rights that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights.
You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to existing or future intellectual property rights relating to your Submissions.
You represent and warrant that you own or have the necessary rights, licenses, consents, and permissions to grant us the rights granted in this Section. You alone, though, retain whatever legally cognizable right, title, and interest that you have in your Submissions and remain responsible for them.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” BASIS, AND PHYGITAL FX, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS (COLLECTIVELY, THE “PHYGITAL FX PARTIES“) DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR ENDORSEMENTS OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND FREEDOM FROM COMPUTER VIRUS. THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, AND INACCURACIES IN THE CONTENT OR OTHER MATERIAL MADE AVAILABLE THROUGH THE SERVICE. YOU SHOULD NOT RELY ON THE CONTENT AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL LEGAL, FINANCIAL, TAX, OR MEDICAL ADVICE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY PHYGITAL FX OR A LICENSOR OF PHYGITAL FX.
IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE DISCLAIMERS TO APPLY TO YOU, THE DISCLAIMERS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE PHYGITAL FX PARTIES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SERVICE; (B) THESE TERMS; OR (C) YOUR MISUSE OF THE SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.
ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS MUST BE COMMENCED WITHIN ONE (1) YEAR OF THE RELEVANT EVENTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND PHYGITAL FX EACH WAIVE THE RIGHT TO PURSUE ANY DISPUTE, CLAIM OR CONTROVERSY RELATING TO THESE TERMS THAT IS NOT FILED WITHIN ONE YEAR AND ANY RIGHT YOU OR WE MAY HAVE HAD TO PURSUE THAT DISPUTE, CLAIM OR CONTROVERSY IN ANY FORUM IS PERMANENTLY BARRED.
IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
You agree to defend, indemnify and hold harmless the PHYGITAL FX Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) any breach or alleged breach by you of these Terms; (ii) your Submissions; (iii) your misuse of the Service; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) any misrepresentation made by you; or (vii) your gross negligence or willful misconduct. You shall cooperate as fully as reasonably required in the defense of any such claim. PHYGITAL FX reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
If applicable law does not allow all or any part of the above indemnification obligation to apply to you, the indemnification obligation will apply to you only to the extent permitted by applicable law.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
A. We Both Agree to Arbitrate.
To the fullest extent permitted by applicable law, PHYGITAL FX and you agree to arbitrate all disputes and claims between us, except for Excluded Claims (collectively, “Covered Claims”). This Arbitration Agreement is intended to be broadly interpreted. It includes, but is not limited to:
B. What is Arbitration.
Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. If any provision of this Arbitration Agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
C. Excluded Claims.
This Arbitration Agreement shall not require arbitration of the following types of disputes (“Excluded Claims”):
D. Arbitration Procedure.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute relating to the Covered Claims will be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator. If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To initiate arbitration, you or PHYGITAL FX must do the following things:
(1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the demand for Arbitration, plus the appropriate filing fee to: JAMS to your local JAMS office or to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111.
(3) Send one copy of the demand for Arbitration to the other party.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. The arbitration hearing may be by telephone or in-person. Disputes may also be resolved by submission of documents and without in-person or telephonic hearings as provided by the Rules. To the extent necessary, the locale of the hearing will be the county of the consumer’s home address or, at the consumer’s election, such other locale as mutually agreed to by the parties, or as determined by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this agreement shall be held under Illinois law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
E. Authority of Arbitrator.
The arbitrator will decide the rights and liabilities, if any, of you and PHYGITAL FX, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. 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 Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. 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 PHYGITAL FX.
F. Waiver of Class Actions.
TO THE EXTENT PERMITTED BY LAW, YOU AND PHYGITAL FX AGREE THAT EACH PARTY MAY BRING CLAIMS (WHETHER IN COURT OR IN ARBITRATION) AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT PARTICIPATE AS A PLAINTIFF, CLAIMANT, OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE PROCEEDING. THIS MEANS THAT YOU AND PHYGITAL FX MAY NOT BRING A CLAIM ON BEHALF OF A CLASS OR GROUP AND MAY NOT BRING A CLAIM ON BEHALF OF ANY OTHER PERSON UNLESS DOING SO AS A PARENT, GUARDIAN, OR WARD OF A MINOR OR IN ANOTHER SIMILAR CAPACITY FOR AN INDIVIDUAL WHO CANNOT OTHERWISE BRING THEIR OWN INDIVIDUAL CLAIM. THIS ALSO MEANS THAT YOU AND PHYGITAL FX MAY NOT PARTICIPATE IN ANY CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE PROCEEDING BROUGHT BY ANY THIRD PARTY. NOTWITHSTANDING THE FOREGOING, YOU OR PHYGITAL FX MAY PARTICIPATE IN A CLASS-WIDE SETTLEMENT.
G. Waiver of Jury Trial.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND PHYGITAL FX AGREE THAT EACH PARTY WAIVES THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO A TRIAL BY A JURY.
H. Choice of Law/Forum Selection
These Terms have been made and shall be construed and enforced in accordance with the laws of the State of Illinois as an agreement wholly performed therein without regard to their conflict of law provisions. For all litigation regarding Excluded Claims and any other controversy or claim for which arbitration is denied, the sole jurisdiction and venue for such litigation will be an appropriate federal or state court located in the County of Cook in the State of Illinois.
I. Opt-Out of Arbitration Agreement.
This Arbitration Agreement automatically applies to your use of the Service. You can opt-out of this Arbitration Agreement within 30 days of your first use of the Service. If we make changes to the Arbitration Agreement, you may opt-out of those changes within 30 days of us posting the updated Arbitration Agreement, provided that such opt-out will only apply to the changes and is not an opt-out of arbitration altogether. To opt-out, email us at legal@phygitalfx.com within the 30 day timeframe with the following information: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) if applicable, the username or email address associated with any potential account or newsletter; and (v) the approximate date of your initial use of the Service. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to opt-out to the Arbitration Agreement.
We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the Service so that they are accessible via a link from the home page, and/or to send you an e-mail to the last e-mail address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. If you object to any such changes, your sole recourse is to cease using the Service.
If you have any questions, please contact us:
By email: legal@phygitalfx.com
By mail: 28 Wells Avenue, GR FL – Yonkers, NY 10701
By webform: Click Here
A. Consent or Approval.
No PHYGITAL FX consent or approval may be deemed to have been granted by PHYGITAL FX without being in writing and signed by an officer of PHYGITAL FX.
B. Notices.
All legal notices to us must be mailed to us at the address in the “Contact Us” section above. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
C. Survival.
The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the Service, including sections on Service Use (except for the limited license), Submissions, Copyright Infringement, Products, Disclaimer of Representations and Warranties, Limitation of Liability, Indemnification, Arbitration Agreement and Class Action Waiver, Changes to Terms, and General Provisions, will survive.
D. Support.
You acknowledge that the provision of support is at PHYGITAL FX’s sole discretion and that we have no obligation to provide you with customer support of any kind.
E. Severability; Interpretation; Assignment.
If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. PHYGITAL FX may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of PHYGITAL FX.
F. Complete Agreement; No Waiver.
These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or PHYGITAL FX in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
G. International Issues.
PHYGITAL FX controls and operates the Service from the U.S., and PHYGITAL FX makes no representation that the Service is appropriate or available for use beyond the U.S. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service. Software related to or made available by the Service may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
H. Investigations; Cooperation with Law Enforcement.
PHYGITAL FX reserves the right to investigate and prosecute any suspected breaches of these Terms or the Service. PHYGITAL FX may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
I. California Consumer Rights and Notices.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.