Effective Date: January 1, 2019
*IMPORTANT*: THIS IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” or “YOUR”) AND PHONEXA, LTD (“WE” OR “PHONEXA”). THIS DOCUMENT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS. YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THESE TERMS AND CONDITIONS OF USE (“AGREEMENT”) AS THEY GOVERN YOUR ACCESS TO AND USE OF THIS APP AND OTHER PHONEXA SERVICES (COLLECTIVELY, THE “APP”). PHONEXA IS WILLING TO LICENSE THE USE OF THE APP TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
1. License Grant
This Agreement provides You with a limited, non-exclusive, non-transferable, and non-sublicenseable license to use the App solely for Your personal use or Your internal business purposes.
2. License Restrictions
The foregoing license is limited. You therefore may not (i) use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit the App (or any part thereof) in any manner not expressly permitted by this Agreement, (ii) reverse engineer, decompile, disassemble, translate, or create any derivative work of the App (or any part thereof); (iii) access, link to, or use any source code from the App (or any part thereof); or (iv) erase or remove any proprietary or intellectual property notice contained in or on the App (or any part thereof). In addition, You acknowledge and agree that exceeding the scope of the license herein shall be a material breach of this Agreement and subject to the termination provisions set forth herein.
3. User Obligations
Subject to Phonexa’s right to monitor or audit compliance, You acknowledge and agree that it is solely Your responsibility to maintain Your compliance with the terms and conditions of this Agreement. By accessing or using the App You also agree to be responsible for and to abide by all applicable local, state, national, and international laws, regulations, rules, and guidelines with respect to Your use of the App. In addition, You agree to assume all responsibility for Your use, and the results of Your use, of the App, including meeting any requirements of Your contracts with third parties or other persons.
4. Proprietary Rights
The contents of the App, including all software, design, text, graphics, images, photographs, illustrations, audio and video material, artwork, databases, user interfaces, visual interfaces, sounds, artwork, presentations in any format, computer code (including html code), products, information, and documentation, as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of the App (collectively, “Material”), unless otherwise indicated, are owned, controlled, and licensed by Phonexa or its licensors. Any rights granted hereby are expressly licensed. Phonexa does not grant any implied right to You or any other person and does not transferor assign any ownership or intellectual property interest or title in or to the App (or any part thereof) to You or anyone else. Accordingly, Your unauthorized use of the App (including any Material) may violate intellectual property or other proprietary rights and laws as well as other laws, regulations, and statutes. You must not alter, delete or conceal any copyright or other notices contained on the App or Material, including notices on any audio/visual material You access, download, transmit, display, print or reproduce from the App. You shall not, nor will You allow any third party (whether or not for Your benefit) to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party App), or otherwise use, any Material without the express prior written consent of Phonexa or its owner if Phonexa is not the owner. Phonexa and all other names, logos, and icons identifying Phonexa and its products and services are proprietary trademarks of Phonexa (or its affiliates), and any use of such marks, including, without limitation, as domain names or account identifiers, without the express written permission of Phonexa is strictly prohibited. Other product and company names mentioned herein or on the App may be the trademarks and/or service marks of their respective owners.
If You wish to become a Client, You must complete one or more online sign up forms that request specific information from You, including, but not limited to, Your name, company name, and phone number. Once You submit the form to Phonexa, Phonexa will decide whether to extend you an offer to become a Client. Submissions to Phonexa are not offers, but merely solicitations of an offer.
6. Mobile Services
The App may include certain services that are available to You via Your mobile phone or other mobile device if You have subscribed to them, including the ability to use Your mobile device to receive and reply to messages from Phonexa, and access certain other features (collectively, “Mobile Services”). These messages may be one-time communications (e.g. confirmation of certain account activities), they may be recurring (e.g. usage alerts), or frequent but user-initiated (e.g. access codes in two-factor authentication).
Although Phonexa does not charge You for these Mobile Services, Your mobile carrier’s normal messaging, data, and other rates and fees will still apply to Your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by Your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, You are responsible for checking with Your mobile carrier to determine if the Mobile Services are available for Your mobile devices, what restrictions, if any, may be applicable to Your use of the Mobile Services, and how much it will cost you. If you have questions regarding mobile services please contact firstname.lastname@example.org
Phonexa welcomes Your feedback and suggestions about Phonexa’s products or services or with respect to how to improve the App. But, by transmitting any feedback or suggestions and any related information, material, or other content (collectively, “feedback”) to Phonexa, You represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that You have all rights necessary to convey such feedback to Phonexa. In addition, any feedback received by Phonexa will be deemed to include from You a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for Phonexa to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such information, material, or content, and You hereby waive any claim to the contrary.
8. Representations And Warranties
You represent and warrant to Phonexa that (i) You are at least the legal age of majority, (ii) You are authorized to enter into this Agreement, (iii) You will not use the App or the Materials for any purpose or in any manner that violates any law or regulation or that infringes the rights of Phonexa or any third party; (iv) any information or data provided to Phonexa by You will not violate any law or regulation or infringe the rights of Phonexa or any third party; (v) all information that You provide to us in connection with the App (e.g., name, e-mail address, and/or other information) is true and accurate; and (vi) You are authorized and able to fulfill and perform the obligations and meet the conditions of a user as specified herein.
9. Warranty Disclaimers
THE APP AND MATERIALS ARE PROVIDED “AS-IS.” PHONEXA DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE APP OR MATERIALS IN TERMS OF AVAILABILITY, ACCURACY, RELIABILITY, CURRENTNESS, COMPLETENESS, FUNCTIONALITY, INTENDED PURPOSE, OR OTHERWISE. PHONEXA DOES NOT REPRESENT OR WARRANT THAT THE APP OR MATERIALS WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE APP IS WITH YOU. THE APP, THE MATERIALS, AND ANY ASSOCIATED INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND PHONEXA HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR BASED ON COURSE OF DEALING OR USAGE OF TRADE.
10. Limitation Of Liability
Phonexa shall have no responsibility to provide You access to the App. You acknowledge and agree that Phonexa shall not be liable or responsible for any claim, damage, or loss resulting, directly or indirectly, from a cause beyond Phonexa’s control, including, but not limited to, offers or promotions made available on the App, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, governmental restrictions, or any claim, damage, or loss arising out of transactions or interactions between You, third party merchants or anyone else. You specifically acknowledge that Phonexa shall not be liable for defamatory, offensive, or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with You. MOREOVER, YOU AGREE THAT IN NO EVENT SHALL PHONEXA BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, FOR LOST DATA, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE APP, OR FOR ANY INFORMATION OR MATERIALS AVAILABLE THROUGH THE APP, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF PHONEXA HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. WITHOUT LIMITATION OF THE FOREGOING, TOTAL LIABILITY OF PHONEXA FOR ANY REASON WHATSOEVER RELATED TO USE OF THE APP, RESULTS FROM USE OF THE APP, OR FOR ANY CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED ONE THOUSAND DOLLARS ($1,000.00 USD), AS LIQUIDATED DAMAGES AND NOT AS A PENALTY EVEN IF PHONEXA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIABILITY, IF ANY, SHALL BE COMPLETE AND EXCLUSIVE.
You agree to release, discharge, defend, indemnify and hold harmless Phonexa and its officers, directors, employees, agents, affiliates, third party information providers, licensors, contractors and others involved in the delivery of products, services or information through the App (collectively, “Indemnified Parties”), arising from, in connection with, or relating to, any breach of this Agreement by You, including breaches arising from Your use of the information obtained through the App. You agree that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and You agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees and litigation expenses of the Indemnified Parties in connection therewith. You will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of Your use of the information accessed through the Services or related App(s).
12. Governing Law
This Agreement has been made in and will be construed and enforced solely in accordance with the laws of England and Wales without regard to conflict of law principles. Any claim You might have against Phonexa must be brought within two (2) years after the cause of action arises, or such claim or cause of action is barred. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in any proceeding based upon or relating to this Agreement to the same extent as other documents and records originally generated and maintained in printed form. Please contact Phonexa if You wish to receive a printed copy of this Agreement.
13. Binding Arbitration
ANY CLAIM OR DISPUTE RELATING IN ANY WAY TO YOUR USE OF THE SITE OR THIS AGREEMENT SHALL BE SETTLED BY BINDING ARBITRATION, except that Phonexa may seek interim relief from any court of competent jurisdiction to protect its intellectual property rights. ARBITRATION WOULD REMOVE YOUR RIGHT TO LITIGATE A CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. IT IS IMPORTANT THAT YOU READ THIS PROVISION CAREFULLY BEFORE ACCEPTING THIS AGREEMENT. Any arbitration initiated under this Agreement will be (i) held in London, (ii) in the English language, and (iii) before one arbitrator, who will be appointed by the Chartered Institute of Arbitrators in London and will have no less than five years’ experience in matters related computer science, intellectual property, and telecommunications products and services.
14. No Class Actions
TO THE EXTENT ALLOWED BY LAW, YOU WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CONSOLIDATED OR CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSION OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING. YOU UNDERSTAND THAT BY AGREEING TO THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST COMPANY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Phonexa wishes to maintain the App as a helpful resource for all of its users. As it relates to Phonexa, You therefore have no reasonable expectation of privacy while using the App because Phonexa reserves the right to view, monitor, and/or record activity on the App (in accordance with applicable law) and to comply with government or court appointed authorities when necessary. You shall therefore not, nor shall You permit any third party to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure established by Phonexa for use of or with the App. Moreover, You also acknowledge that any breach, threatened or actual, of this Agreement by You may cause irreparable injury to Phonexa and/or its licensors, such injury would not be quantifiable in monetary damages, and Phonexa and/or its licensors would not have an adequate remedy at law. You therefore agree that Phonexa and/or its licensors (or on their behalf) shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of Your obligations under any provision of this Agreement. Accordingly, You hereby waive any requirement that Phonexa or its licensors post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Phonexa to enforce any provision of this Agreement.
We respect Your personal privacy and the use and protection of Your personally identifiable information. Please see our Privacy Notice for important information and disclosures relating to the collection and use of Your personally identifiable information in connection with Your use of the App.
Phonexa also reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraud, illegal activity, or actions or omissions that violate any term or condition of this Agreement, to terminate this Agreement with You (including any registered account) in order to protect its name, business, or goodwill and/or any other user. You acknowledge and agree that Phonexa shall have the sole right to determine in its reasonable discretion whether You are engaging in any unauthorised activity and/or violating any term or conditions of this Agreement. Phonexa shall also not be responsible or liable for any damages or loss, such as loss of sales or profits, as a result of any termination of this Agreement in accordance with this section. You may also terminate at any time by ceasing to use the App. But, all applicable provisions of this Agreement will survive termination, as outlined below. Any licenses from Phonexa and any right to use the App shall immediately cease upon termination of this Agreement. The provisions concerning feedback, Phonexa’s ownership rights, representations and warranties, warranty disclaimer, limitation of liability, governing law, enforcement, termination, and the miscellaneous terms will survive the termination or expiration of this Agreement for any reason.