Terms of Use

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Last updated: 1/1/2014

Acceptance of Terms

This Agreement contains the terms and conditions (the “Terms”) that apply to your (“Customer”) purchase from Phantom Technologies, Inc (“Phantom”) of Phantom products and/or services and support (collectively or individually, the "Products"). By accepting delivery of the Products described on your invoice, you agree to be bound by and accepts these Terms.

THESE TERMS APPLY UNLESS YOU HAVE SIGNED A SEPARATE PURCHASE AGREEMENT WITH PHANTOM, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN. You acknowledge and agree that these Terms are subject to change by Phantom without prior written notice at any time, in Phantom’s sole discretion.

  1. Other Documents. These Terms shall NOT be altered, supplemented, amended or otherwise modified by the use of any other document(s) (e.g., a purchase order). Any attempt to alter, supplement amend or otherwise modify the Terms or to enter an order for Product(s) that purports to be subject to additional or modified terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both Customer and Phantom.
  2. Governing Law. THIS AGREEMENT, THE TERMS AND ANY SALES THEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, USA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES.
  3. Prices and Taxes. Unless otherwise stated in writing by Phantom, (a) all prices appearing in a written Quote from Phantom will expire in accordance with the terms of same, and (b) all such Quoted prices are exclusive of transportation, insurance, federal, state, local, excise, value-added, use, sales, property (ad valorem) and similar taxes or duties now in force or hereafter enacted. Customer agrees to pay the Phantom invoice for all Products purchased pursuant to the Quote. Customer will pay all taxes, fees or charges of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between Customer and Phantom. If Phantom is required to collect any of the foregoing, such amounts will be separately stated on the invoice, and must be paid by Customer unless Customer provides Phantom with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer agrees to provide Phantom with a valid resale certificate for any hardware purchased for resale.
  4. Payment Terms. All payments are due from Customer net thirty (n/30) days from the date of Phantom’s invoice. Past due invoices are subject to a monthly charge equal to the lesser of: (a) one and one-half percent (1.5 %) per month; or (b) the highest rate of interest permitted by applicable law. If any invoice remains unpaid after sixty (60) days from the invoice date, notwithstanding any agreement or course of dealing between Phantom and Customer, (i) all subsequent orders for Products will be accepted only on a C.O.D. or cash-with-order basis until satisfactory credit is reestablished (in Phantom’s sole discretion), and (ii) Phantom may suspend shipment of any Product ordered until all outstanding invoices are paid. Customer may upgrade the hardware model, Subscriptions or Instant Replacement service within sixty (60) days of the purchase date and receive a full credit for the original purchase, provided the original unit is returned to Phantom within thirty (30) days of the upgrade. Delinquent amounts owed by Customer may be referred to a collection agency, and will be subject to additional fees.
  5. Shipment/Delivery. In the absence of specific shipping instructions, Phantom will ship Product by the method it deems most advantageous, using standard commercial packaging. Customer agrees to pay all transportation charges and costs associated with shipment of the Product, including any special or export packaging requested or required under the circumstances, as determined by Phantom. Customer is also responsible for obtaining insurance against damage to the Product during shipment. Title and risk of loss for Products shipped shall pass to Customer at the time the Product is picked up at a Phantom location for delivery.
  6. Customer Data. Customer acknowledges and agrees to allow Phantom to collect certain information about Customer ("Statistics") from Customer’s Products. The Statistics will be used to update URLs, signatures, and other threats as well as optimize and monitor the Product. Information will be collected electronically and automatically. Customer data within the Statistics will be kept private and will only be reported in aggregate by Phantom.
  7. Permission to Use Logo and Trademarks. Customer hereby grants Phantom permission to use Customer's logo and trademarks on Phantom’s Web Site, or any other marketing material, when referring to Customer. Customer will retain all title and rights to such logos.
  8. Export. Software, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software. Phantom provides multiple versions of the Phantom Products targeted for specific geographic regions. The North American version is designed to operate only in North America and may not include all of the features or regulatory approvals for providing protections in other regions. The Subscription Update service may not function properly if a North America version is exported and Phantom will be unable to support such exported versions. Any upgrade to an International version will be at Phantom’s sole discretion and subject to additional fees.
  9. Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN PHANTOM’S APPLICABLE WARRANTY STATEMENT IN EFFECT AS OF THE DATE OF AN INVOICE, PHANTOM MAKES NO EXPRESS OR IMPLIED WARRANTIES.. ADDITIONALLY, NOSUCH WARRANTIES WILL BE EFFECTIVE, AND PHANTOM WILL NOT BE OBLIGATED TO HONOR ANY SUCH WARRANTIES, UNLESS AND UNTIL PHANTOM RECEIVES PAYMENT IN FULL FOR THE APPLICABLE PRODUCT. PHANTOM HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES REGARDING INTELLECTUAL PROPERTY INFRINGEMENT. PHANTOM’S RESPONSIBILITY FOR WARRANTY CLAIMS IS LIMITED TO REPAIR AND REPLACEMENT AS SET FORTH IN PHANTOM’S APPLICABLE WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE. PRODUCTS REPLACED UNDER WARRANTY OR ADVANCED EXCHANGE REQUIRED REPLACED/FAILED EQUIPMENT TO BE RETURNED WITHIN SEVENTY-TWO (72) HOURS OF RECEIPT OF NEW EQUIPMENT. REPLACED/FAILED EQUIPMENT RETURNED AFTER THIRTY (30) DAYS OF RECEIPT OF REPLACEMENT EQUIPMENT WILL NOT BE ACCEPTED AND REPLACED/FAILED EQUIPMENT WILL BE BILLED. Phantom reserves the right to modify its limited warranty at any time, at its sole discretion. All software is provided subject to license agreement that is available on Phantom Technologies website and included in the Product. Customer agrees that it will be bound by the license agreement.
  10. Limited Warranty. For the Subscription Term, Phantom Technologies warrants that the Products will operate in substantial conformance with the then-current Phantom Technologies published documentation under normal use. Notwithstanding the previous sentence, Phantom Technologies does not warrant that: (i) Products will be free from defects; (ii) Products will satisfy all of Subscriber's requirements; (iii) Products will operate without interruption or error; (iv) Products will always locate or block access to or transmission of all desired addresses, applications and/or files; (v) Products will identify every transmission or file that should potentially be located or blocked; (vi) addresses and files contained in the Products will be appropriately categorized; or (vii) algorithms used in the Products will be complete or accurate. Phantom Technologies shall use reasonable efforts to remedy any significant Product non-conformance reported to Phantom Technologies that Phantom Technologies can reasonably identify and confirm. Phantom Technologies or its representative will repair or replace any such non-conforming or defective Products, or refund a pro-rata share of the Subscription Fees paid for the then-current term, at Phantom Technologies sole discretion. This paragraph sets forth Subscriber's sole and exclusive remedy and Phantom Technologies entire liability for any breach of warranty or other duty related to the Products. Any unauthorized Product modification, tampering with the Products, Product use inconsistent with the accompanying documentation, or related breach of this Agreement shall void the aforementioned warranty. EXCEPT AS EXPLICITLY SET FORTH HEREIN AND TO THE EXTENT ALLOWED BY LAW, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS.
  11. Return Policies. Phantom Products are not returnable.
  12. Exchanges. From time to time, Phantom may, in its sole discretion, exchange Products or portions of a Product for a Customer. Any exchanges will be made in accordance with Phantom’s exchange policies in effect on the date of the exchange.
  13. Products. Phantom’s policy is one of on-going product update and revision. Phantom may revise and discontinue Products at any time, without prior notice to Customers. Phantom will ship Products that have the functionality and performance of the Products ordered, but differences between Products shipped and Products described in a specification sheet are possible. Parts for Products may be new or refurbished. Spare parts also may be new or refurbished.
  14. Limitation of Liability. PHANTOM SHALL NOT HAVE ANY LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR BASED ON THE PROVISION OF SERVICES AND/OR SUPPORT. PHANTOM WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY (EXCEPT AS EXPRESSLY PROVIDED HEREIN). THIS LIMITATION OF LIABILITY APPLIES BOTH TO PRODUCTS AND SERVICES AND SUPPORT CUSTOMER PURCHASES UNDER THIS AGREEMENT. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES BUNDLED WITH THE PRODUCTS, PHANTOM IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS UNDER THIS AGREEMENT OVER THE ONE YEAR PERIOD PRIOR TO THE EVENT OUT OF WHICH THE CLAIM AROSE FOR THE PRODUCTS THAT DIRECTLY CAUSED THE LIABILITY. CUSTOMER FURTHER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF SERVICES NOT BUNDLED WITH PRODUCTS UNDER THIS AGREEMENT, PHANTOM IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PURCHASE OF SERVICES UNDER THIS AGREEMENT. CUSTOMER AGREES TO PROVIDE TO PHANTOM, AT NO CHARGE, AN UNLIMITED LICENSE TO USE ANY PATENTS OR INTELLECTUAL PROPERTY THAT ARE UTILIZED IN ANY PHANTOM PRODUCTS. PHANTOM DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS OR ANY NETWORKS OR SYSTEMS PROTECTED BY THE PRODUCT WILL BE FREE FROM VULNERABILITY, INTRUSION, ATTACK, OR OTHER DAMAGE.
  15. Not For Resale. Customer represents and warrants that it is buying the Products for its own internal use only and not for resale, unless Customer is a legal and authorized reseller of Phantom Products as evidenced in writing between Customer and Phantom. Customer acknowledged and understands that the License for the software included in the Products is non-transferable and may not be sold, leased, transferred or otherwise provided by any manner in any way to a third party except by an Phantom-authorized reseller or partner.
  16. Service and Support. Phantom will provide general service and support to Customer in accordance with the then-current service and support policies and conditions in effect. For end-user Customers, Phantom, or any third-party support provider hired by Phantom, will attempt to handle any problem involving Phantom Products over the telephone or via email. However, Customer hereby acknowledged and agrees that Phantom support personnel/providers may not be able to understand or resolve any given problem. Service offerings may vary from Product to Product. If Customer purchased optional services and support, Phantom will provide the optional service and support to Customer in accordance with its then-current terms and conditions. Phantom may, at its discretion, revise its general and optional service and support programs and the terms and conditions that govern them, without prior notice to Customer. The services and support programs, and their terms and conditions in place at the time of purchase, will apply to Customer's purchase of Products; however, these may be amended at any time without prior notice to Customer, in Phantom sole discretion. Phantom has no obligation to provide service or support until Phantom has received full payment for the Products that Customer purchased.
  17. Protection and Restrictions. Customer agrees to take all reasonable steps to safeguard the Products to ensure that no unauthorized person has access thereto and that no unauthorized copy, publication, disclosure or distribution, in whole or in part, in any form is made. Customer hereby acknowledges and agrees that the Products contain valuable, confidential information and trade secrets and that unauthorized use and/or copying of same would be harmful to Phantom. Customer may not directly or indirectly transfer, assign, publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on, the Products or any part or portion thereof. By way of illustration and not limitation, Customer may not reverse engineer (except as required by law in order to assure interoperability), decompile, translate, adapt, or disassemble the Products, nor shall Customer attempt to create the source code from the object code for the Software by any manner whatsoever. Any third party software included in the Products may only be used in conjunction with the Products, and is not licensed for use independent from the Products. Customer may not, and shall not allow or assist third parties to, publish, distribute or disclose the results of any benchmark tests performed on the Products without Phantom’s prior written approval, such approval to be withheld, delayed or conditioned in Phantom’s sole discretion. Customer hereby represents and warrants that it will comply with all laws, rules and regulations which apply to its use of the Products. Customer hereby further represents and warrants that the Products will not be used to filter, screen, manage or censor Internet content for consumers without permission from the affected consumers, and Customer agrees to indemnify Phantom for any claims regarding such activities. Customer hereby acknowledges and agrees that the use of Product features, including, but not limited to, desktop recording (DMCR), logging, and alerts, are subject to all state, local, and federals laws and regulations applicable within the country of deployment. Customer hereby agreesto comply with all such restrictions and required disclosures and hereby agrees to hold Phantom harmless of any and all claims and other damages arising from Customer’s failure to abide by same.
  18. Dispute Resolution. The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) against Phantom, its agents, employees, successors, assigns or affiliates (collectively for purposes of this paragraph, "Phantom " ) arising out of or relating to this Agreement, Phantom advertising, or any related purchase of a Product (a "Dispute" ) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time period after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration in accordance with the then current CPR Rules for Non-Administered Arbitration. The Arbitration will be conducted before three (3) independent and impartial arbitrators. Phantom will appoint one (1) arbitrator and the other party or parties will appoint one (1) arbitrator. The two (2) appointed arbitrators will then select a third arbitrator, who shall be the presiding arbitrator. The arbitration hearing shall take place in Wilmington, Delaware, and will be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent stale laws. The arbitrators shall base their award on the terms of this Agreement, and will follow the law and judicial precedents that a United States District Judge sitting in the county of San Diego would apply to the Dispute. The arbitrators shall render their award in writing and will include the findings of fact and conclusion of law upon which their award is based. Judgment upon the arbitration award may be entered by any court of competent jurisdiction. The existence or results of any negotiation, mediation or arbitration will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this paragraph.
  19. Headings. The section headings used herein are for convenience of reference only and do not form a part of these Terms. No construction or inference shall be derived therefrom.
  20. Waiver. The failure of Phantom to enforce at any time or for any period of time the Terms shall not be construed as a waiver of same or the rights of Phantom thereafter to enforce same.
  21. Severability. If any term or condition of this Agreement is held void or unenforceable, it shall be severed, and every other provision shall be enforced as if the void or unenforceable term or condition had never been a part hereof.
  22. Capacity. System capacities specifications for the Products may vary based on customer configuration options or Internet usage conditions and are subject to change without notice.
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