Phizzle, Inc. (“Phizzle” or “we”) is a leading provider of mobile technology products and services and operates this digital property, as well as other websites, applications, products and services that are part of the Phizzle portfolio of digital properties (the “Phizzle Network”). We operate some of the websites and applications within the Phizzle Network on behalf of third parties, our Partners (“Partners”), whose brands appear on the applicable digital property.
Please read these terms and conditions of service carefully before you use this digital property or any of the services made available through this digital property together, the “Phizzle Services” or the “Services”).
YOUR ACCEPTANCE OF THIS AGREEMENT (DEFINED BELOW) AND/OR USE OF THE SERVICES INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS, ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH PHIZZLE, AND HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT COMPANY TO THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT LAUNCH OR OTHERWISE USE THE SERVICES.
These terms and conditions of service represent the agreement (“Agreement“) between you and Phizzle with respect to the Phizzle Services. All references herein to “you” and “your” means you, your employees, agents, and contractors, and any other entity on whose behalf you accept this Agreement and conditions, all of whom will also be bound by this Agreement.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with such Supplemental Terms, the Supplemental Terms will control with respect to such Service. These terms and conditions of service and any applicable Supplemental Terms are referred to herein as the “Agreement.”
Phizzle may revise this Agreement at any time, with or without notice to you. If we make any material changes, we will notify you of those changes. Any changes to this Agreement will be effective immediately for new Users of the Services and will be effective thirty (30) days after posting of notice of such changes on this digital property for existing Users. If you do not agree to any change(s) after receiving a notice of such change(s), you will stop using this digital property and/or the Services. Otherwise, your continued use of this digital property and/or Services constitutes your acceptance of such change(s).
THE PHIZZLE MARKETING SOLUTIONS
Phizzle provides mobile marketing solutions for well-known brands, enterprises and others. The Phizzle marketing solutions enable a brand, enterprise or other entity to interact with you by delivering content, promotional offerings, coupons or other information to your mobile device. In providing the Phizzle marketing solutions, Phizzle utilizes multiple mobile data communication modes, including text messaging, mobile web, and downloadable applications. Please note that text messaging and data charges billed by your carrier may apply, and you are solely responsible for such fees. A complete description of the Phizzle marketing solutions is available at the Products link on Phizzle’s corporate website, located at www.phizzle.com.
Registering your Account. In order to access certain features of the Services you may be required to become a Registered User. If our Services are being provided with a Partner, we may require you to register separately for each such Partner. For purposes of this Agreement, a “Registered User” is a user who has registered an account through the Services (“Account”) or has a valid account on the social networking service (“SNS”) through which the user has connected to the Services (each such account, a “Your SNS Account”).
Access through an SNS. If you access the Services through an SNS, you may link your Account with Your SNS Accounts, by allowing Phizzle to access your Your SNS Account. You represent that you are entitled to grant Phizzle access to Your SNS Account (including for the purposes described herein) without breach by you of any of the terms and conditions that govern Your SNS Account and without obligating Phizzle to pay any fees or making Phizzle subject to any usage limitations imposed by such third party service providers. By granting Phizzle access to Your SNS Accounts, you understand that Phizzle will access, make available and store (if applicable) any Content (defined below) that you have provided to and stored in your Your SNS Account (“SNS Content”) so that it is available on and through the Services via your Account. Unless otherwise specified in this Agreement, all SNS Content will be considered to be Your Content (as defined in below) for all purposes of this Agreement. Depending on the SNS Accounts and your privacy settings, information that you post to your Your SNS Accounts may be available on and through your Account as made available through the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Phizzle makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and Phizzle is not responsible for any SNS Content.
Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (18) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree that you will monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Phizzle Materials (as defined below) or the Services by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or Phizzle has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Phizzle has the right to suspend or terminate your Account and refuse any and all current or future use of the Phizzle Materials and/or the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Phizzle reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Phizzle Materials and/or the Services if you have been previously removed by Phizzle, or if you have been previously banned from the Services.
Activities Under your Account. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Phizzle immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Phizzle Materials and the Services, including but not limited to, a mobile device that is suitable to connect with and use the Phizzle Materials and the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Phizzle Materials and the Services.
USE OF SERVICE
Phizzle grants you the right to use the Phizzle Service for your personal, non-commercial use only, subject to this Agreement. You may not modify, copy, publish, license, sell or otherwise commercially exploit any information, data, text, software, music, sound, photographs, graphics, videos, messages, tags and/or other materials accessible through the Services, whether publicly posted or privately transmitted (“Content”). You may not rent, lease or otherwise transfer rights to the Service. You may not use the Services in any manner that could damage, disable, overburden or impair the Phizzle Services, nor may you use the Services in any manner that could interfere with any other party’s use and enjoyment of the Phizzle Services. You agree that you will use the Services for lawful purposes and only in compliance with all applicable laws, including but not limited to copyright and other intellectual property laws. You agree to not do any of the following when using the Phizzle Services:
- Use the Phizzle Services for any illegal, unauthorized, unintended, unsafe, hazardous, or unlawful purposes, or in any manner inconsistent with this Agreement;
- Use the Phizzle Services while operating a motor vehicle;
- Frame or utilize framing techniques to enclose any trademark, logo, or other Content;
- Use any metatags or other “hidden text” using Phizzle’s name or trademarks
- Use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services;
- Access the Content in order to build a similar or competitive website, application or service;
- Systematically retrieve the Content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- Use, display, mirror or frame the Content or the Services without Phizzle’s express written consent;
- Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Services, whether through the use of a network analyzer, packet sniffer or other device;
- Make any automated use of the Services or Content, or take any action that imposes or may impose (in Phizzle’s sole discretion) an unreasonable or disproportionately large load on the infrastructure for the Services or Phizzle Materials;
- Bypass any robot exclusion headers or other measures Phizzle takes to restrict access to the Services or use any software, technology or device to send content or messages, scrape, spider or crawl the Services or Content;
- Use, facilitate, create, or maintain any unauthorized connection to the Services or Content, including, but not limited to: (a) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Services or (b) any connection using programs, tools or software not expressly approved by Phizzle;
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
- Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Solicit or attempt to solicit personal information from other users of the Services or Phizzle Materials;
- Use our Services or Phizzle Materials to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers
- Harm minors in any way;
- Impersonate any person or entity, including, but not limited to, Phizzle personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- Stalk or otherwise harass any other user of the Services; or
- Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
Application License. If this digital property is a mobile application, Phizzle grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Phizzle’s software application for mobile devices (the “Application”) on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
Your right to use the Services will terminate immediately if you violate any provision of this Agreement. Upon termination, you may no longer use the Service.
You acknowledge that Phizzle and its licensors and content and service providers (“Phizzle Licensors“) own all rights, title and interest, including without limitation all Intellectual Property Rights, in and to this digital property, the Services, the Content and any technology underlying the digital property and the Services. “Intellectual Property Rights” means all rights existing from time to time under patent law, copyright law, trade secret law, trademark law unfair competition law and all other proprietary rights, and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You agree not to modify, adapt, translate, rent, lease, loan, distribute, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from this digital property or the Services. You also agree not to remove, obscure, or alter Phizzle’s copyright notice, trademarks or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Service. All rights not expressly granted to you are reserved by Phizzle or its suppliers. Phizzle’s stylized name and other related graphics, logos, service marks and trade names used in connection with the Services are the trademarks of Phizzle and may not be used without permission in connection with any third party products or services. Other trademarks, service marks and trade names that may appear in connection with the Services are the property of their respective owners.
Types of Content. You acknowledge that the Content is the sole responsibility of the party from whom such Content originated. This means that you, and not Phizzle, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services (“Your Content”), and other Users of the Services, and not Phizzle, are similarly responsible for all Content they Make Available through the Services (“User Content”).
No Obligation to Pre-Screen Content. You acknowledge that Phizzle has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Phizzle reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into this Agreement, you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Phizzle pre-screens, refuses or removes any Content, you acknowledge that Phizzle will do so for Phizzle’s benefit, not yours. Without limiting the foregoing, Phizzle will have the right to remove any Content that violates this Agreement or is otherwise objectionable.
License to Your Content. By submitting Your Content to any “public area” of the Services, you grant Phizzle a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, derive revenue or other remuneration from, and communicate to the public, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed. You also warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Phizzle, are responsible for all of Your Content that you Make Available on the Services, whether publicly posted or privately transmitted. You represent and warrant that will not Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person; (v) promotes illegal or harmful activities; (vi) you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); or (vii) infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Phizzle through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Phizzle has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Phizzle a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.
You can cancel your receipt of mobile alerts by texting the word STOP to the the following shortcodes:
For assistance, text HELP to any of the shortcodes listed above for information.
Msg & Data Rates May Apply. You are responsible for any fees assessed by your wireless telephone carrier to access the Phizzle Service, including any data plan charges, text messaging charges, tolls, out-of-area roaming, or other telephone connection charges.
THIRD PARTY SERVICES
Third-Party Websites & Ads. The, Services and the Content may contain links to third-party websites (“Third Party Websites”) and advertisements for third parties (collectively, “Third Party Websites & Ads”). Such Third Party Websites are not under the control of Phizzle. Phizzle is not responsible for any Third Party Websites & Ads. Phizzle provides these Third Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites & Ads, or their products or services. You use all links in Third Party Websites & Ads at your own risk. When you leave this digital property, this Agreement will no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that this Agreement is between you and Phizzle and not with the App Store. Phizzle, not the App Store, is solely responsible for the Services and Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the Application and the Services. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce them
Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable, if any. You must provide Phizzle with valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”) to make purchases through the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing Phizzle with your credit card number or PayPal account and associated payment information, you agree that Phizzle is authorized to immediately invoice your Account for all fees and charges due and payable to Phizzle hereunder and that no additional notice or consent is required. You agree to immediately notify Phizzle of any change in your billing address or the credit card or PayPal account used for payment hereunder. Phizzle reserves the right at any time to change its prices and billing methods, either immediately upon posting on this digital property or by e-mail delivery to you.
Any prices or fees are net of any applicable Sales Tax. If any payments for any goods or services under this Agreement are subject to Sales Tax in any jurisdiction, you will be responsible for payment of such Sales Tax, and any related penalties or interest and will indemnify Phizzle for any liability or expense Phizzle may incur in connection with such Sales Taxes. For purposes of this Agreement, “Sales Tax” will mean any sales or use tax, and any other tax measured by sales proceeds, that Phizzle is permitted to pass to you that is (a) the functional equivalent of a sales tax and (b) the applicable taxiing jurisdiction does not otherwise impose a sales or use tax. Phizzle may automatically charge and withhold such taxes for orders to be delivered to addresses within any jurisdictions that it deems is required.
Phizzle reserves the right to terminate your access to the Phizzle Service at any time for any or no reason and without notice to you.
You may terminate the Phizzle Service at any time by notifying Phizzle via (i) an email addressed to support@Phizzle.com, (ii) a letter addressed to Phizzle, Inc., 58 Second Street, Third Floor, San Francisco, CA 94105, or (iii) a phone call to Phizzle Customer Support at 877-744-9953.
Any such cancellation by you will become effective when processed by Phizzle.
Upon any termination of your Phizzle Service, Phizzle will have no liability to you or any further obligations under this Agreement. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services may also include deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. All provisions of this Agreement which by their nature should survive, will survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
If your ability to access the Services due to your violation of this Agreement or for conduct otherwise inappropriate for the community, then you agree that you will not attempt to re-register with or access the Services or any other property within the Phizzle Network through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to the Content or Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Phizzle reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
PHIZZLE, ON BEHALF OF ITSELF, ITS LICENSORS, VENDORS, SUPPLIERS, AGENTS AND EMPLOYEES, DISCLAIMS ANY RESPONSIBILITY FOR HARM RESULTING FROM YOUR USE OF THE SERVICE (INCLUDING WITHOUT LIMITATION ANY STRENGTH OF RELATIONSHIP ALGORITHMS CONTAINED THEREIN). THE SERVICE IS PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER. PHIZZLE EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF STRENGTH OF RELATIONSHIP ALGORITHMS OR DATA, AND NONINFRINGEMENT OF PROPRIETARY RIGHTS. PHIZZLE DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND/OR USE THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR MOBILE COMMUNICATION DEVICE, COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SERVICE. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
From time to time, Phizzle may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Phizzle’s sole discretion. The provisions of this section apply with full force to such features or tools.
Applicable law may not allow certain warranty exclusions, so one or more of the above disclaimers may not apply to you.
LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT IN NO EVENT WILL PHIZZLE PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS DIGITAL PROPERTY, THE SERVICES OR THE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT PHIZZLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL THE PHIZZLE PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY PHIZZLE AS A RESULT OF YOUR USE OF THE SERVICES IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT CLAIM. IF YOU HAVE NOT PAID PHIZZLE ANY AMOUNTS IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT ANY SUCH CLAIM, PHIZZLE’S SOLE AND EXCLUSIVE LIABILITY WILL BE LIMITED TO FIFTY DOLLARS ($50).
You hereby release the Phizzle Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or in connection with this Agreement or the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
YOU AND PHIZZLE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENTTHE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
You agree to indemnify and hold harmless Phizzle, Phizzle subsidiaries, Partners, affiliates, joint ventures, suppliers, officers, directors, shareholders, employees and agents (collectively, the “Phizzle Parties”, from any claim or demand due to or arising directly or indirectly out of your conduct or in connection with your use of the Services or its features, any alleged violation of this Agreement, or any alleged violation of any applicable law or regulation. Phizzle reserves the right, at our own expense, to assume the exclusive defense and control of any third party claim and otherwise subject to indemnification by you, but doing so will not excuse your indemnity obligations.
PRIVACY AND OTHER CUSTOMER AGREEMENTS
It is Phizzle’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to Phizzle by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on this digital property or the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Phizzle’s Copyright Agent for notice of claims of copyright infringement is as follows:Copyright Agent, Phizzle, Inc., 58 2nd Street, 3rd Floor, San Francisco, CA. 94105, or firstname.lastname@example.org.
ARBITRATION AND GOVERNING LAW
This Agreement and performance hereunder will be governed by and construed in accordance with the laws of the State of California without giving effect to its conflict of laws provisions or your actual state or country of residence. You agree to submit to the exclusive jurisdiction of its courts.
Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration will be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party will not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (2) all arbitration proceedings will be held in English; (3) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party will bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and will pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, Phizzle may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You will always comply with all the international and domestic laws, ordinances, regulations and statutes that re applicable to your use of the Services.
Any other Dispute (including whether the claims asserted are arbitrable) will be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the “Rules”) and will be administered by the San Jose, California office of JAMS (the “Administrator”). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be San Jose, California USA. The Dispute(s) will be submitted to a single arbitrator (“Arbitrator”) chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator will provide such list to the parties 10 days after request by either party. Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party will bear its own attorney’s fees, costs, and disbursements arising out of the arbitration, and will pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator will be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. The Arbitrator will 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 will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 9 of this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also will be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award will be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law.
By using the Services in any manner, you agree to the above arbitration provision. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Phizzle (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
ACCESSING AND DOWNLOADING THE APPLICATION THROUGH APPLE
The following applies to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”):
(a) You acknowledge and agree that (i) this Agreement is concluded between you and Phizzle only, and not Apple, and (ii) Phizzle, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Phizzle and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Phizzle.
(d) You and Phizzle acknowledge that, as between Phizzle and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Phizzle acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Phizzle and Apple, Phizzle, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
(f) You and Phizzle acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
(g) Without limiting any other terms of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
(h) In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
You are responsible for complying with trade regulations and both foreign and domestic laws. You acknowledge that the Service or underlying technology may not be downloaded to or exported or re-exported: (a) into (or to a resident or national of) Cuba, Iraq, Iran, Libya, North Korea, Syria or any other country subject to United States embargo; (b) to anyone on the US Treasury Department’s list of Specially Designated Nationals or on the US Commerce Department\’s Denied Party or Entity List; and (c) you will not export or re-export the Software to any prohibited country, person, end-customer or entity specified by US Export Laws.
This Agreement constitutes the entire agreement between Phizzle and you with respect to the subject matter hereof. Phizzle reserves the right to modify this Agreement, or to update or modify the Services, from time to time at its discretion.
Phizzle’s or your failure to require performance of any provision will not affect that party’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
You may not resell, assign, or transfer any of your rights hereunder. Any such assignment is null and void, and any attempt may result in termination of this Agreement, without liability to Phizzle. Notwithstanding the foregoing, Phizzle may assign this Agreement to any affiliate or successor company at any time without notice.
By using the Phizzle Service, you consent to receive from Phizzle all communications, including notices, agreements, legally required disclosures or other information in connection with the Phizzle Service (collectively, “Notices“) electronically. Phizzle may provide such Notices by posting them on Phizzle’s website or by downloading such Notices to your wireless device. If you desire to withdraw your consent to receive Notices electronically, you must discontinue your use of the Phizzle Service.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Phizzle.
If you have any questions regarding the terms of this Agreement, please contact Phizzle via (i) an email addressed to support@Phizzle.com, (ii) a letter addressed to Phizzle, Inc., 58 Second Street, Third Floor, San Francisco, CA 94105 (its corporate headquarters), or (iii) a phone call to Phizzle Customer Support at 877-744-9953.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
If Phizzle becomes aware of any possible violations by you of this Agreement, Phizzle reserves the right to investigate such violations. If, as a result of the investigation, Phizzle believes that criminal activity has occurred, Phizzle reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Phizzle is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on the Services, including Your Content, in Phizzle’s possession in connection with your use of the Services, to (1) comply with applicable laws, legal process or governmental request; (2) enforce this Agreement; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for customer service; or (5) protect the rights, property or personal safety of Phizzle, its users or the public, and all enforcement or other government officials, as Phizzle in its sole discretion believes to be necessary or appropriate.
This Agreement was last updated and are effective as of December 1, 2012.