Terms of Service

Version Date: May 19, 2017

Summary of Changes to Phizzle’s Terms of Service

We have updated our Terms of Service. These new Terms will be effective immediately for first time customers on or after May 19, 2017.   Existing customers as of May 19, 2017 will be subject to the updated Terms effective 30 days thereafter (June 18, 2017). These new Terms supersede and replace all previously published Phizzle Terms of Service.  You will be deemed to have agreed to these amended Terms through your continued use of Phizzle’s services.

In summary, we made changes to allow the integration of Phizzle’s services into your business offerings and the situation in which you might provide your customers or users with the ability to use Phizzle’s services (what we call the “End-User Relationship”).  By including these provisions in our standard Terms, we negate the need to sign a separate End-User Agreement with Phizzle.  If you do not plan to engage in this type of relationship, these additional provisions will not be applicable to you. We have also dealt with certain other legal matters, including regulatory updates, clarification regarding the treatment of specific categories of sensitive data, compliance with laws and European data privacy issues.

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These TERMS OF SERVICE (this “Agreement“) is made between Phizzle, Inc. (“Phizzle”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “You”).

Phizzle provides certain services and products relating to high volume data aggregations solutions, insight and behavior API’s, dynamic identity resolution algorithm and API, omni-channel communication API’s, gamification API’s, SMS (text) marketing platform and live engagement and data visualization tools (the “Services”) through the web site located at www.Phizzle.com and such other sites as may be designated by Phizzle (each, the “Site” or collectively, the “Sites”).

All access to and use of the Services available through the Site is subject to the terms of this Agreement.  If You wish to access and use the publicly available portions of the Services and the Site, You may do so only in compliance with the terms of this Agreement.  If You have placed or later place an order (whether through the Site, by email, phone or otherwise) with Phizzle (Your “Order”) seeking to access and use certain of the Services requiring registration, Phizzle is willing to accept Your Order and provide You with access to and use of those Services only if You comply with the terms and conditions of this Agreement.

Without limiting the foregoing, the Services are not available to individuals under the age of 18 or who do not meet any of the other qualifications included in this agreement.

PLEASE CAREFULLY READ THIS AGREEMENT.  BY SUBMITTING AN ORDER OR BY ACCESSING OR USING THE SITE OR SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, PHIZZLE IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE SITE OR SERVICES AND YOU MUST NOT ACCESS OR USE THE SITE OR SERVICES.  IF YOU ACCESS OR USE THE SITE OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.

This Agreement is entered into as of the earlier of the date You first submit an Order relating to the Services or first access or use the Services or a Site (the “Effective Date”). This Agreement consists of the following terms and conditions and each Order submitted by You and accepted by Phizzle, each of which is incorporated in and made a part of this Agreement.  Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Services and the Sites and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Services and the Sites.  Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties.  All waivers under this Agreement must be in writing.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

Phizzle reserves the right, at any time, to change or modify the Site, Services or this Agreement, by making such change or modification available on the Site or by providing other notice to You.  Any such change or modification will be effective 30 days after posting on the Site or such other notice.  As applicable, You will be deemed to have agreed to such change or modification through Your continued use of the Site or Services.

  1. Definitions.  Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States.
  2. Orders and Confirmation.  All Orders placed by You will be governed by the terms of this Agreement.  Phizzle will confirm Your Order either through the Site at the time you submit Your Order or by providing You with access to the Services (each, a “Confirmation”).  If the terms of any Order conflict with the terms of any Confirmation of that Order, the terms of the Confirmation will govern and control with respect to the Services provided to You.  This Agreement will govern and control the terms of each Order and Confirmation under this Agreement.  By accessing or using any of the Services, You agree to be bound by the terms of this Agreement and each applicable Order and Confirmation with respect to those Services.
  3. Term.  This Agreement will be effective upon the Effective Date.  If You have ordered a trial subscription to the Services or a subscription to any free Services, as indicated in an applicable Order or Confirmation (a “Trial/Free Subscription”), then the term of this Agreement will continue for the period of the Trial/Free Subscription indicated in the applicable Order or Confirmation and will thereafter expire unless You place an Order for a non-trial subscription to the Services prior to the completion thereof.  If You have ordered a non-trial subscription to the Services, then the term of this Agreement will continue for the initial period stated in the applicable Order or Confirmation for the Services and will thereafter automatically renew for successive additional periods of equal duration.  If no initial period is stated in the applicable Order or Confirmation for the Services, this Agreement will continue for an initial period of 1 month and will thereafter automatically renew for successive additional 1-month periods.  Unless terminated as set forth herein, the term of this Agreement will continue to renew until You notify Phizzle that You do not wish to renew the Agreement at least 10 days prior to the end of the then-current period.  In all other cases, the term of this Agreement will continue until terminated as set forth herein.
  4. Subscription.  Subject to this Agreement, during the term of this Agreement Phizzle will provide You with a limited subscription to access and use the Services subject to Confirmations under this Agreement, solely for Your own use in connection with your own business purposes; providedhowever, if You desire to integrate the Service into any of the services offered by You and/or provide the Service to Your customers and potential customers (“End-Users”) as an integrated part of Your business (the “End-User Service”), You will also be subject to the End-User terms and conditions set forth in Section 24 below.  Subject to the foregoing proviso, Your rights to access and use the Services are personal, non-exclusive, non-transferable and non-sublicensable.  You understand that Phizzle may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Services (or any portion thereof) with or without notice.
  5. Access to the Services.  Upon Confirmation of Your Order by Phizzle, the rights granted to You under this Agreement entitle You to access the Services through accounts (each, an “Account”).  You will be provided with a user identification and password applicable to each Account You have purchased (each such user identification and password, an “Account ID”).  Each Account ID is personal in nature and may be used only by You or, if You are an organization, by designated employees within Your organization or contractors who are contractually required to comply with the terms of this Agreement (such individual, as applicable, the “User” of the Account).  You are solely responsible for all use of the Services by each User and for compliance by each User with the applicable terms of this Agreement.  You will ensure the security and confidentiality of each Account ID and will notify Phizzle immediately if any Account ID is lost, stolen or otherwise compromised.  You acknowledge that You are fully responsible for all costs, fees, liabilities or damages incurred through use of each Account ID (whether lawful or unlawful) and that any Services ordered or transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by You.  In no event will Phizzle be liable for the foregoing obligations or the failure by You to fulfill such obligations.  You will be solely responsible, at Your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for You and each User to connect to, access, and use the Services and the Sites.
  6. Applicable Policies.  In addition to the terms of this Agreement, Your access to and use of the Site and Services is subject to Phizzle’s then-current policies relating to the Site and Services, including, without limitation, the Phizzle Privacy Policy available on the Site.  You are responsible for compliance with these policies and all other Phizzle policies applicable to the access and use of the Services posted to the Site or provided through Services.
  7. Software.  Any software or code available on or for download through the Site or Services (“Software”) is protected by Intellectual Property Rights (as defined below).  Unless otherwise expressly stated in a license or other agreement separate from this Agreement that You may have entered into (or may enter into) with Phizzle relating to any Software (each such license or other agreement, a “Software License Agreement”), Phizzle grants you a limited, non-exclusive right and license to download, install and execute the Software in accordance with the instructions provided on the Site and solely for your own business purposes in connection with Your access to and use of the Services.  Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any Intellectual Property Rights therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without the prior written permission of Phizzle.  Except as set forth in this Agreement, any Software License Agreement will control in the event of a conflict between the terms of this Agreement and that Software License Agreement.
  8. Third-Party Services.  The Services may include services developed, provided or maintained by third-party service providers (“Third Party Services”).  In addition to the terms of this Agreement, Your access to and use of any Third Party Services is also subject to any other agreement separate from this Agreement that You may enter into (or may have entered into) relating to those Third Party Services (each, a “Third Party Service Agreement”).  The terms of any Third Party Service Agreement will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement.  Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement.  All other Third Party Services will be subject to the terms of this Agreement.  Third Party Services may be subject to additional Fees as set forth on the Site.  Notwithstanding the terms of any Third Party Services Agreement, Phizzle may change, modify or discontinue any Third Party Service at any time and without notice to You.  Except as expressly set forth in this Agreement or any Third Party Service Agreement, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Third Party Services.
  9. Restrictions.  You acknowledge that the Services, Sites, Software, and the databases, software, hardware and other technology used by or on behalf of Phizzle to provide the Services and operate the Sites (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable intellectual property and trade secrets of Phizzle.  You will not, and will not permit any third party (including any End-User, as applicable) to: (1) access or use the Services or the Sites, in whole or in part, except as expressly provided in this Agreement; (2) use the Site, Services or any Software to harvest or collect personal information or other contact information of third parties by any means for the purposes of sending unsolicited text messages or other unsolicited communications; (3) use the Site, Services or any Software in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Services; (4) use automated scripts to collect information from or otherwise interact with the Site, Services or any Software; (5) use the Site, Services or any Software to intimidate or harass any other people or entities; alter, modify, reproduce, create derivative works of the Services, Technology, or any Software; (6) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Services or any Software, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Services or any Software, or access thereto, available to any third party; (7) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Site, Services, Technology or any Software; (8) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Sites, Services, Technology, or any Software; (9) interfere in any manner with the operation or hosting of the Sites, Services, Technology or any Software, or attempt to gain unauthorized access to the Sites, Services, Technology or any Software; or (10) use the Service for any high risk activities including, but not limited to, the operation of nuclear facilities, air traffic control, life support systems, emergency services or where the use or failure of the Service could lead to death, personal injury or environmental damage (collectively, “High Risk Activities”).  Phizzle does not intend uses of the Service to create obligations under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”), the Telephone Consumer Protection Act or similar laws and makes no representations that the Service satisfies the requirements of such laws. If You are (or become) a Covered Entity or Business Associate (as defined in HIPAA) or a Financial Institution (as defined in GLBA), You agree not to use the Service for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) or Nonpublic Personal Information (as defined in GLBA). You will not allow any access to or use of the Services by anyone other than Your authorized End-Users and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
  10. Fees and Payment.  You agree to pay Phizzle all fees set forth in each Order or Confirmation and any fees otherwise specified on the Site or through the Services (“Fees”).  All Fees will be billed as indicated in each Order or Confirmation.  If the applicable Order or Confirmation does not specify any applicable billing terms, the initial payment of Fees specified under that Order or Confirmation for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement.  If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant Phizzle the right to charge the credit card or debit the bank account provided to Phizzle for all Fees incurred under this Agreement.  All Fees will be non-refundable once paid to Phizzle (including upon any termination or suspension of this Agreement).  Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law.  Phizzle may change any portion of the Fees by posting the changes to the Sites or otherwise notifying You through the Services of the change, such changes to take effect at the beginning of the next period of this Agreement.  If Phizzle requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.
  11. Termination and Suspension.  This Agreement may be terminated by Phizzle, at any time, in Phizzle’s sole discretion: (1) upon any breach by You of this Agreement that remains uncured ten (10) days after Phizzle delivers written notice to You of such breach; or (2) at any time during any Trial/Free Subscription, for any reason or no reason, upon notice to You.  Without limiting Phizzle’s right to terminate this Agreement, Phizzle may also immediately and indefinitely suspend Your access to the Sites or Services, with or without notice to You, upon any actual, threatened or suspected breach of this Agreement or of applicable law or upon any other conduct deemed inappropriate or detrimental to the Services by Phizzle (including, but not limited to, rogue script, bad send and unauthorized takeover or other malicious activity on Your Account).  Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to You under this Agreement will terminate; (b) You will immediately cease all use of and access to the Sites and Services; (c) all Fees then owed by You will become immediately due and payable; (d) You will immediately either return to Phizzle or, at Phizzle’s discretion, destroy the Phizzle Content, Account IDs, Phizzle Confidential Information, and other information related to this Agreement in Your possession or control; and (e) Phizzle may delete any of Your Content held by Phizzle within 10 days after the date of termination.  Sections 6 (Applicable Policies), 9 (Restrictions), 10 (Fees and Payment), 11 (Termination and Suspension), 12 (Ownership), 14.3 (Warranties and Disclaimer: Disclaimer), 15.2 (Indemnity: By You), 16 (Limitation on Liability), 17 (Data Privacy), 18 (Confidentiality), 21 (Disputes), 22 (Governing Law), 23 (General) and 24.3 (Use of the Services by End-Users) will survive any expiration or termination of this Agreement.
  12. Ownership.  Phizzle retains all right, title and interest, including, without limitation, all Intellectual Property Rights (as defined below), in and to the Sites, Services, Technology, Phizzle Content (as defined below), any Software, and any additions, improvements, updates, and modifications thereto.  You acknowledge that You are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to You to use them apart from Your right to access the Services under this Agreement.  The Phizzle name, logo and the product and service names associated with the Services are trademarks of Phizzle (or its third-party providers), and no right or license is granted to You to use them.  For purposes of this Agreement, “Intellectual Property Rights” means all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
  13. Content.
    1. Phizzle Content.  Phizzle provides You with access to certain data, information and other content through the Site and Services (“Phizzle Content”).  Unless otherwise noted on the Site, as between You and Phizzle, all Phizzle Content is owned by Phizzle.  Subject to this Agreement, each User and End-User (as applicable) may: (a) access the Phizzle Content (without modification) solely for Your own business purposes in connection with the use of the Services; and (b) distribute the Phizzle Content (without modification) as incorporated into messages generated and sent by You or any End-User (as applicable) through the Services.  Except as expressly provided in this Agreement, You will not, and will not permit any User or End-User (as applicable) to: (i) alter, modify, reproduce, or create derivative works of the Phizzle Content; (ii) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer the Phizzle Content, including, without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties; or (iii) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with the Phizzle Content.  Certain of the Phizzle Content may include or may be based on data, information and content from independent third party providers (“Third Party Content”).  Phizzle uses commercially reasonable measures to ensure that Third Party Content is reliable, but Phizzle has no independent basis to verify or contradict the accuracy or completeness of the Third Party Content and will not be responsible for any erroneous Third Party Content provided through the Services.
    2. Your Content.  You will be solely responsible for all data, information and other content provided by, or collected or obtained from, You or any of Your Users or End-Users (as applicable) through the Services, including, without limitation, all personally identifiable information relating to You or any of Your Users, customers, End-Users, service providers, employees, contractors or agents (“Your Content”).  You, on behalf of Yourself and each End-User (as applicable), grant to Phizzle all necessary rights and licenses in and to Your Content necessary for Phizzle to provide the Services under this Agreement.  As between You and Phizzle, You retain all of Your rights in and to Your Content and do not convey any proprietary interest therein to Phizzle other than the licenses set forth herein.  You represent and warrant that none of Your Content violates this Agreement or the Privacy Policy.  You will maintain an adequate back-up of all Your Content and Phizzle will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of Your Content.  Phizzle may take remedial action if any of Your Content violates this Agreement, provided that Phizzle is under no obligation to review any of Your Content for accuracy or potential liability.  You represent and warrant to Phizzle that You have all necessary right, title, interest and consent necessary to allow Phizzle to use Your Content for the purposes for which You or any End-User (as applicable) provides Your Content to Phizzle, including, without limitation, the delivery of any and all text messages and other communications.  You will defend, indemnify and hold harmless Phizzle from all losses, costs, damages, liabilities or expenses (including without limitation reasonable attorney’s fees) incurred or arising from any claim by a third party arising out of or relating to Your Content or the use thereof by Phizzle in providing the Services.  For the purpose of clarity, Sensitive Data (as defined below) will not be provided to Phizzle at any time.  For purposes of this Agreement, “Sensitive Data” means (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (b) credit or debit card number (except Your credit card information provided for payment purposes only), (c) employment, financial or health information, (d) ethnic or religious affiliation or sexual orientation, (e) account passwords, (f) date of birth, (g) criminal history, (h) mother’s maiden name or (i) any other information or combinations of information that is deemed sensitive under the legal framework of any applicable jurisdiction.
  14. Warranties and Disclaimer.
    1. By Phizzle.  Except in the case of any Services provided during a Trial/Free Subscription, Phizzle represents and warrants to You that Phizzle will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with this Agreement.  Phizzle’s sole obligation and Your sole and exclusive remedy in the event of any failure by Phizzle to comply with the foregoing sentence will be for Phizzle to, at Phizzle’s option, re-perform the affected Services or refund to You the fees You have actually paid for the affected Services during the month in which the failure occurred.  Notwithstanding the foregoing, You remain solely and entirely responsible for Your and each End-User’s (as applicable) compliance with, and will defend, indemnify and hold harmless Phizzle from and against any claims arising from any actual or alleged violation by You or any End-User (as applicable) of any international, federal, state or local treaties, laws, rules, regulations or ordinances regarding Your or the End-Users’ (as applicable) use of or access to the Site or Services or regarding your business, products or services, including, without limitation, regarding data and data privacy and the transmission of electronic mail messages, whether solicited or unsolicited.
    2. By You.  You hereby represent, warrant, and covenant for the benefit of Phizzle that: (a) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (b) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; (c) Your Content, and any other data, information or content You or any End-User (as applicable) provides to Phizzle in connection with this Agreement and Your and each End-User’s (as applicable) access to the Site and use of the Services, is correct and current; (d) You will not and will not allow any User or End-User (as applicable) to export or re-export the Service except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable; (e) You will not and will not allow any User or End-User (as applicable) to remove or export from the United States or allow the export or re-export of the Service (i) into (or to a national or resident of) any embargoed or terrorist-supporting country, (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (iv) otherwise in violation of any export or import laws; (f) You are not and will ensure each User and End-User (as applicable) are not, located in, under the control of, or a national or resident of any prohibited country or on any prohibited party list referred to in subsection (e) immediately above (for more information, see the U.S. Department of Treasury website at https://www.treasury.gov/
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      ); and (g) if You will make the Service available to End-Users as an integrated part of the End-User Service, You (i) will not, without Phizzle’s prior written approval, make any representation, warranty or guarantee to End-User on behalf of Phizzle concerning the Service and (ii) will only offer the Service to End-Users as an integrated part of the End-User Service and not for resale without integration.
    3. Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 14, THE SITES AND SERVICES (AND ALL PHIZZLE CONTENT PROVIDED THROUGH THE SITES AND SERVICES) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND PHIZZLE AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT.  NEITHER THE SOFTWARE, THE SITES NOR THE SERVICES ARE DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PHIZZLE, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 14.
  15. Indemnity.
    1. By Phizzle.  Except in the case of any Services provided during a Trial/Free Subscription, Phizzle will, at its expense, defend You against any claims brought against You by a third party that Your use of the Services in accordance with this Agreement infringes any copyright, trade secret or trademark right.  The foregoing obligations of Phizzle under this Section 15 are conditioned upon You providing Phizzle with: (a) notice of any such claim within 10 days after You receive written notice thereof; (b) sole control over the defense and settlement of such claim; and (c) reasonable assistance (at Phizzle’s expense) in the defense and settlement of such claim.  If You are, or Phizzle reasonably believes You may be, enjoined from using the Services, Phizzle, at Phizzle’s option and expense, may procure the right for You to continue using the Services, replace or modify the Services so that they become non-infringing, or provide You a refund of all pre-paid amounts applicable to such Services (if any) and terminate this Agreement with respect to such Services.  This Section 15.1 constitutes Phizzle’s sole and exclusive liability, and Your sole and exclusive remedy, for any infringement or misappropriation of any third party Intellectual Property Rights by or through the Site, Services, Technology, Phizzle Content or any Software.
    2. By You.  You hereby indemnify, defend, and hold harmless Phizzle and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from Your or the End-Users (as applicable) accessing or using the Site, Services, Software, Your Content, Phizzle Content, any text message or other communication generated or sent through the Services or the End-User Service (as applicable), or any breach of this Agreement, including breaches of the Telephone Consumer Protection Act of the United States and interpretations and regulations thereof issued or promulgated by the United States Federal Communications Commission. Phizzle will provide You with notice of any such claim or allegation, and Phizzle will have the right to participate in the defense of any such claim at its expense.
  16. Limitation on Liability.  IN NO EVENT WILL PHIZZLE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE SITES, SERVICES (OR ANY PHIZZLE CONTENT PROVIDED THROUGH THE SITES OR SERVICES), EVEN IF PHIZZLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.  PHIZZLE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO PHIZZLE HEREUNDER IN THE 3 MONTHS PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $100).  YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT PHIZZLE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.  IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, PHIZZLE’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.  FOR THE PURPOSE OF CLARITY, PHIZZLE WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU, FOR (A) SENSITIVE DATA SENT TO PHIZZLE; (B) VIOLATION OF ANY LAW BY PHIZZLE WHEN ACTING AT YOUR OR ANY END-USER’S (AS APPLICABLE) DIRECTION; (C) THE SENDING BY PHIZZLE OF YOUR OR ANY END-USER’S (AS APPLICABLE) TEXT MESSAGES, INCLUDING ANY CLAIMS AGAINST PHIZZLE DUE TO YOUR OR ANY END-USER’S (AS APPLICABLE) SENDING OR DATA COLLECTION PRACTICES OR YOUR CONTENT.
  17. Data Privacy.  In respect of Your or the End-Users’ (as applicable) use of the Site and Services and in relation to any personally identifiable and other data and information You or any End-User (as applicable) provides to Phizzle through the Site and Services, You expressly consent to the use and disclosure of that data and information as described in Phizzle’s then-current privacy policy displayed on the Site (“Privacy Policy”).  Notwithstanding anything in the Privacy Policy, Phizzle will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information (data or information that does not identify an entity or natural person as the source thereof) resulting from Your or any End-User’s (as applicable) access to the Site and Your or any End-User’s (as applicable) use and operation of the Services (including, by way of example and not limitation, information relating to volumes, frequencies, recipients, failure rates, or any other information regarding text messages and other communications You and any End-User (as applicable) generate and send using the Services).  To the extent any such non-personally identifiable data or information is collected or generated by Phizzle, the data and information will be solely owned by Phizzle and may be used by Phizzle for any lawful business purpose without a duty of accounting to You or any End-User, provided that the data and information is used only in an aggregated form, without directly identifying You, any User, End-User or customer, or any other entity or natural person as the source thereof. You acknowledge that text messages are an insecure medium that is generally not encrypted in transit, and security of information transmitted through the Internet or cellular transmission can never be guaranteed. Phizzle is not responsible for any interception or interruption of any communications through the Internet or cellular transmission or for changes to or loss of Your Content.  Phizzle may process and store Your Content in the United States or any other country in which Phizzle or its agents maintain facilities and, by using the Services, You consent to this processing and storage of Your Content. In relation to all “personal data” (as defined by Directive 95/46/EC (the “Directive”), which also defines the terms “processing”, “data controller” and “data processor”) of European Union data subjects provided or disclosed to Phizzle by You or on Your behalf, Phizzle will, upon reasonable request by sending an email to info@Phizzle.com with the name and email address of Your signatory, execute the necessary document with You containing the standard contract clauses, in the form provided by Phizzle, for the transfer of personal data to third countries under the Directive.
  18. Confidentiality.  For purposes of this Agreement, “Confidential Information” means all nonpublic information disclosed or made available under this Agreement that relates to the Technology, the provision or receipt of the Services, or either party’s technology, finances, operations, customers or business.  For the avoidance of doubt, (1) the Services, Technology, and Phizzle Content are the Confidential Information of Phizzle, (2) all data regarding Your text message recipients and End-Users (as applicable), including without limitation, identities and telephone numbers are Your Confidential Information, and (3) the data and information specified in Section 17 will not be Your Confidential Information.  Each party agrees to protect the other party’s Confidential Information with the degree of care that such party uses to protect its own confidential information of like nature, but in no case less than reasonable care.  Each party agrees that, except as expressly directed by the other party, it will not at any time during or after the term of this Agreement: (1) disclose any Confidential Information to any third party; (2) permit any third party to examine and/or make copies of any reports, documents or electronic data containing Confidential Information; or (3) use any of the Confidential Information for any reason other than for the purposes of this Agreement.  Each party may disclose Confidential Information to personnel having a need to receive the Confidential Information in the performance of their duties under this Agreement, provided, however, that such personnel are informed of the confidentiality obligations hereunder and each party uses its best efforts to ensure their compliance therewith.  If either party is required to disclose the other party’s Confidential Information pursuant to any statute, regulation, order, subpoena or document discovery request, it will furnish written notice of such disclosure to the other party as soon as practicable in order to afford such party the opportunity to seek a protective order and the party required to make such disclosure will reasonably cooperate in such efforts (at the other party’s reasonable expense).  In the event of any conflict between the Privacy Policy and the provisions of this Section 18, the provisions of this Section 18 shall control.
  19. Claims of Infringement.  Just as Phizzle requires users of the Site to respect the copyrights and other intellectual property rights of Phizzle, its affiliates, and other third parties, Phizzle respects the copyrights and other intellectual property rights of Users of the Site and other third parties.  If You believe in good faith that Your copyrighted work has been reproduced on the Site without authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:

Phizzle, Inc.
Attn: General Counsel
58 Second Street, Third Floor
San Francisco, CA 94105

Please provide the following information to Phizzle’s General Counsel:

(1) the identity of the infringed work, and of the allegedly infringing work;
(2) Your name, address, daytime phone number, and email address, if available;
(3) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law;
(4) a statement that the information in the notification is accurate and, under penalty of perjury, that You are authorized to act on behalf of the owner; and
(5) Your electronic or physical signature.

  1. Linked Sites.  The Site and communications sent through the Services may contain links to third-party sites that are not under the control of Phizzle, and Phizzle is not responsible for any content on any linked site.  If you access a third-party site from the Site or from a communication sent through the Services, then you do so at your own risk.  Phizzle provides links only as a convenience, and the inclusion of the link does not imply that Phizzle endorses or accepts any responsibility for the content on those third-party sites.  Phizzle welcomes links to the Site.  You may establish a link to this Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by Phizzle or any group or individual affiliated with Phizzle.  You may not use on your site any Content or Marks appearing on the Site in establishing the link.  You may not frame or otherwise incorporate into another site the Content or other materials on the Site without prior written consent.
  2. Disputes.  Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section 21.  If any Dispute cannot be resolved through negotiations between the parties within 15 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration rules of the American Arbitration Association (“AAA”) then in effect (the “Rules”).  Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules.  The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties.  If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules.  The arbitration will be conducted exclusively in the English language at a site specified by Phizzle in San Francisco, California U.S.A.  The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator.  The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party.  Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof.  Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
  3. Governing Law.  The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of California, U.S.A. as such laws apply to contracts between California residents performed entirely within California.  Each party agrees that it will only bring any action or proceeding arising from or relating to this Agreement in a federal court in the Northern District of California, U.S.A. or in state court in San Francisco, CA U.S.A., and You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by Phizzle.
  4. General.  If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force.  The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.  Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger or operation of law) without the prior written approval of Phizzle.  Any assignment in violation of the foregoing will be null and void.  Phizzle may assign this Agreement to any party that assumes Phizzle’s obligations hereunder.  This Agreement does not confer any benefits on any third party unless it expressly states that it does. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter any obligation on behalf of the other.  This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.  Phizzle provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement.  If You (or any of Your customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement.  All other use is prohibited and no rights than those provided in this Agreement are conferred. The Service was developed fully at private expense.  Phizzle may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Services appearing on the Phizzle web site and for other marketing and promotional purposes relating to the Services.
  5. End-User Terms and Conditions. This Section 24 sets forth the terms and conditions upon which You will make the Service available to End-Users as an integrated part of the End-User Service.  The terms set forth in this Section 24 shall be in addition to, and not in lieu of, the terms set forth elsewhere in this Agreement.
    1. Integration and Use of the Phizzle Interface. Phizzle will provide You with the right to integrate the Service into the End-User Service through one or more interfaces for the Service designated by Phizzle during the term of this Agreement (each, a “Phizzle Interface”) and to offer the Service to End-Users as an integrated part of the End-User Service.  You will access the Service only through the Phizzle Interfaces designated by Phizzle, for purposes of integrating the Service into the End-User Service.
    2. End-User Account.  Customer will be provided with an administrative account to manage access to and use of the Service (the “End-User Account”).  The End-User Account may be accessed and used only by You for purposes of (a) establishing and administering End-User access to the Services and (b) utilizing the Service to send text messages to End-Users in connection with Your business.  You will be solely responsible for all use of the End-User Account.  You will ensure the security and confidentiality of all usernames and passwords associated with the End-User Account and will notify Phizzle immediately if any such information is lost, stolen or otherwise compromised.  You will be fully responsible for all liabilities and damages incurred through use of the End-User Account (whether lawful or unlawful).  Any transactions completed through any End-User Account will be deemed to have been completed by You.  In no event will Phizzle be liable for the foregoing obligations or the failure by You to fulfill such obligations.
    3. Use of the Service by End-Users. Prior to allowing any End-User to access or use any End-User Service, including any portion of the Service, You will require that the End-User become legally bound by an agreement covering the use of the End-User Service with You (an “End-User Agreement”).  You will be responsible for preparing the End-User Agreement. The End-User Agreement will include terms consistent with Your rights and obligations under this Agreement and at least as protective of the Service and the interests of Phizzle as those set forth Exhibit A hereto, but in no case less protective of the Service and the interests of Phizzle than of the End-User Service and Your interests in the End-User Agreement.  Upon request by Phizzle, You will provide Phizzle with a copy of the End-User Agreement (including any prior versions thereof) and verify that each End-User has agreed to be legally bound by the End-User Agreement.  You assume all responsibility and liability for the actions of all End-Users, including all use of or access to the Service by each End-User or by You on behalf of any End-User and will be responsible for each End-User’s compliance or failure to comply with the End-User Agreement.  You will promptly notify Phizzle upon becoming aware of any breach of any End-User Agreement and will enforce the terms of each End-User Agreement against each End-User.  If You fail to enforce the End-User Agreement against any End-User, upon the request of Phizzle, You will provide Phizzle with such authority and such information regarding such End-User as is required for Phizzle to enforce the End-User Agreement directly against that End-User.

EXHIBIT A – END-USER USER AGREEMENT

This END-USER User Agreement (this “Agreement”) is part of that certain Terms of Service between You and Phizzle (the “TOS”). For purposes of this Agreement: (a) You are referred to herein as “End-User”, (b) Phizzle shall be considered a Third Party Provider (as defined below), and (c) Third Party Services (as defined below) shall include the Services (as defined in the TOS).

Third-Party Services.  The services provided to End-User under this Agreement may include certain services developed, provided or maintained by third-party service providers of End-User (“Third Party Providers”).  Access to or use of any those services (“Third Party Services”) by End-User is subject to any separate agreement that End-User may enter into (or may have entered into) relating to those Third Party Services (each, a “Third Party Service Agreement”).  The terms of any Third Party Service Agreement will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement.  Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement.  All other Third Party Services will be subject to the terms of this Agreement. Each Third Party Provider retains all right, title and interest in and to all Third Party Services and all software, hardware or other technology used to provide those services, and any additions, improvements, updates, and modifications thereto. Each Third Party Provider will be a beneficiary of the terms of this Agreement as to the Third Party Services provided by the Third Party Provider and will have all rights necessary to enforce this Agreement against End-User in the case of any breach of those terms.

Representations, Warranties and Covenants.  End-User represents, warrants, and covenants that: (a) End-User has the legal right and authority to enter into this Agreement; (b) End-User has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement End-User enter into in connection with any of the services provided under this Agreement; (c) all Content (as defined below) is in compliance with the terms of this Agreement; (d) End-User will access and use the Services provided under this Agreement in compliance with the terms of this Agreement and all laws, rules and regulations applicable to its obligations under this Agreement, including the Telephone Consumer Protection Act of the United States; (e) End-User will not export or re-export the Service except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable; (f) End-User will not remove or export from the United States or allow the export or re-export of the Service (i) into (or to a national or resident of) any embargoed or terrorist-supporting country, (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (iv) otherwise in violation of any export or import laws; and (g) End-User is not located in, under the control of, or a national or resident of any prohibited country or on any prohibited party list referred to in subsection (f) immediately above.

Disclaimer.  THE SOLE WARRANTIES REGARDING THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE THOSE EXPRESS WARRANTIES (IF ANY) PROVIDED TO PHIZZLE BY END-USER UNDER THIS AGREEMENT.  ALL THIRD PARTY SERVICES ARE PROVIDED BY EACH THIRD PARTY PROVIDER STRICTLY “AS IS” AND “AS AVAILABLE” AND ALL THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ALL THIRD PARTY SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGMENT. THE SERVICES ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES (AS DEFINED BELOW). NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PHIZZLE OR ANY THIRD PARTY PROVIDER WILL CREATE ANY WARRANTIES BY OR ON BEHALF OF THIRD PARTY PROVIDER.

Indemnification.  End-User agrees to and hereby does indemnify, defend, and hold harmless Phizzle, its Third Party Providers and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from or relate to any claim or allegation against any Indemnified Party arising from End-User accessing or using the services provided under this Agreement (including any Third Party Services) or from any text message or other communication generated or sent through such services or any content contained therein, whether or not in breach of this Agreement.

Limitation on Liability.  END-USER AGREES THAT RESPONSIBILITY AND LIABILITY FOR THE SERVICES PROVIDED UNDER THIS AGREEMENT IS STRICTLY WITH END-USER.  NO THIRD PARTY PROVIDER WILL HAVE ANY LIABILITY UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING THIRD PARTY SERVICES), INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER FORM OF DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY IF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.  IN JURISDICTIONS WHERE THE FOREGOING LIMITATION OF LIABILITY IS NOT PERMITTED, THE LIABILITY OF THE THIRD PARTY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.  NEITHER PHIZZLE NOR ANY THIRD PARTY PROVIDER WILL BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU, FOR (A) SENSITIVE DATA (AS DEFINED BELOW) SENT TO PHIZZLE OR SUCH THIRD PARTY PROVIDER; (B) VIOLATION OF ANY LAW BY PHIZZLE OR SUCH THIRD PARTY PROVIDER WHEN ACTING AT END-USER’S DIRECTION; OR (C) THE SENDING BY PHIZZLE OR SUCH THIRD PARTY PROVIDER OF END-USER’S TEXT MESSAGES, INCLUDING ANY CLAIMS AGAINST PHIZZLE OR SUCH THIRD PARTY PROVIDER DUE TO END-USER’S SENDING OR DATA COLLECTION PRACTICES OR CONTENT (AS DEFINED BELOW).

Data Privacy.  Phizzle and its Third Party Providers will have the right to collect, extract, compile, synthesize, and analyze data and information resulting from or relating to the use or operation of the services under this Agreement (“Service Data”).  Any Service Data collected by Phizzle or any Third Party Provider will be owned by the party collecting the Service Data and may be used by that party for any lawful business purpose without a duty of accounting to End-User subject to the then current privacy policy applicable to the services under this Agreement.  End-User consents to the use and disclosure of personally identifiable and other data and information as described in this Agreement and in the then-current privacy policy applicable to the services provided under this Agreement (“Privacy Policy”).

Content.  End-User User will be responsible for all data, information and other content (“Content”) provided by End-User in connection with the services provided under this Agreement.  End-User will not provide and will not permit any third party to provide or to use the services provided under this Agreement to provide, any Content that: (a) infringes, misappropriates or violates any intellectual property or other rights of any third-party; (b) is defamatory, harmful to minors, obscene or child pornographic; (c) contains any viruses or programming routines intended to damage the services or any software, hardware or other technology used to provide the services or surreptitiously intercept or expropriate any data or information; (d) is false, misleading or inaccurate; or (e) constitutes Sensitive Data.  For the purposes of this Agreement, “Sensitive Data” means (i) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (ii) credit or debit card number (except Your credit card information provided for payment purposes only), (iii) employment, financial or health information, (iv) ethnic or religious affiliation or sexual orientation, (v) account passwords, (vi) date of birth, (vii) criminal history, (viii) mother’s maiden name or (ix) or any other information or combinations of information that is deemed sensitive under the legal framework of any applicable jurisdiction.  End-User will not use the Service for any high risk activities including, but not limited to, the operation of nuclear facilities, air traffic control, life support systems, emergency services or where the use or failure of the Service could lead to death, personal injury or environmental damage (collectively, “High Risk Activities”). Phizzle and its Third Party Providers do not intend uses of the Third Party Services to create obligations under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”), the Telephone Consumer Protection Act or similar laws and makes no representations that such Third Party Services satisfy the requirements of such laws. If End-User is (or becomes) a Covered Entity or Business Associate (as defined in HIPAA) or a Financial Institution (as defined in GLBA), End-User agrees not to use the Third Party Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) or Nonpublic Personal Information (as defined in GLBA).  End-User acknowledges that text messages are an insecure medium that is generally not encrypted in transit, and security of information transmitted through the Internet or cellular transmission can never be guaranteed. Phizzle and its Third Party Providers will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any Content.  Phizzle and its Third Party Providers may take remedial action if any Content violates this Section, however Phizzle and its Third Party Providers are under no obligation to review any Content for accuracy or potential liability.

License Grant.  End-User grants to Phizzle and its Third Party Providers all necessary rights and licenses in and to all Content necessary for Phizzle and its Third Party Providers to provide the services under this Agreement.   End-User will maintain an adequate back-up of all Content and Phizzle and its Third Party Providers will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of any Content.  End-User represents and warrants that End-User has all necessary right, title, interest and consent necessary to allow Phizzle and its Third Party Providers to use all Content as set forth in this Agreement and as otherwise necessary to provide the services under this Agreement.