TERMS AND CONDITIONS OF USE (“AGREEMENT”)Effective Date: October 10, 2023
Phonexa.com and its owner and operator Phonexa Holdings, LLC (“Phonexa,” “we,” “us,” or “our”) provide our services (described below) and related content to you through our website(s) located at Phonexa.com (the “Website” or “Site”) and through our mobile applications and related technologies (“Mobile Apps”, and collectively, such Mobile Apps) and the Site, including any updated or new features, functionality and technology (the “Service”). All access and use of the Service are subject to the terms and conditions contained in these Terms and Conditions of Use (as amended from time to time, the “Terms”). By accessing, browsing, or otherwise using the Site, Mobile Apps, or any other aspect of the Service, you acknowledge that you have read, understood, and agree to be bound by these Terms. If you do not accept the terms and conditions of these Terms, you will not access, browse, or otherwise use the Service.PLEASE READ THESE TERMS & CONDITIONS OF USE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW. TERMS AND CONDITIONS
1. LICENSE GRANT.
This Agreement provides You with a limited, non-exclusive, non-transferable, and non-sublicensable license to use the Website 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 Website (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 Website (or any part thereof); (iii) access, link to, or use any source code from the Website (or any part thereof); or (iv) erase or remove any proprietary or intellectual property notice contained in or on the Website (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 Website, 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 Website. In addition, You agree to assume all responsibility for your use and the results of your use of the Website including meeting any requirements of your contracts with third parties or other persons.4. ADDITIONAL PHONEXA PARTNERSHIP TERMS.
Phonexa Holdings, LLC grants alternative programs. Please refer to the Phonexa Partnership Terms and Conditions for more information about the terms, conditions, and policies that apply to the program and use of the Phonexa Platform.5. PROPRIETARY RIGHTS.
The contents of the Website, 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 Website (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 transfer or assign any ownership or intellectual property interest or title in or to the Website (or any part thereof) to You or anyone else. Accordingly, Your unauthorized use of the Website (including any Material) may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes. You must not alter, delete or conceal any copyright or other notices contained on the Website or Material, including notices on any audio/visual material You access, download, transmit, display, print, or reproduce from the Website. 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 website), 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, 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 Website may be the trademarks and/or service marks of their respective owners.6. MOBILE SERVICES.
The Website 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”). 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 they will cost you.7. FEEDBACK.
Phonexa welcomes your feedback and suggestions about Phonexa’s products or services or with respect to how to improve the Website. 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 Website or the Materials for any purpose or in any manner that violates any law, rule, ordinance, or regulation or infringes on the rights of Phonexa or any third party; (iv) any information or data provided to Phonexa by You will not violate any law, rule, ordinance, or regulation or infringe on the rights of Phonexa or any third party; (v) all information that You provide to Us in connection with the Website (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 WEBSITE 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 WEBSITE OR MATERIALS IN TERMS OF AVAILABILITY, ACCURACY, RELIABILITY, CURRENTNESS, COMPLETENESS, FUNCTIONALITY, INTENDED PURPOSE, OR OTHERWISE. PHONEXA DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE 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 WEBSITE IS WITH YOU. THE WEBSITE, 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 Website. 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 Website, 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 WEBSITE, OR FOR ANY INFORMATION OR MATERIALS AVAILABLE THROUGH THE WEBSITE, 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 WEBSITE, RESULTS FROM USE OF THE WEBSITE, 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.11. INDEMNIFICATION.
You agree to release, discharge, defend, indemnify and hold harmless Phonexa and its officers, directors, employees, agents, third-party information providers, licensors, contractors and others involved in the delivery of products, services or information through the Website (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 Website. 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 website(s).12. GOVERNING LAW.
This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the State of California, U.S.A., as applied to agreements entered into and completely performed in the State of California (without regard to conflict of law principles). The state or local courts in the State of California will have exclusive jurisdiction and venue over all controversies in connection with this Agreement, and You hereby consent to such exclusive and personal jurisdiction and venue. 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. In addition, You agree to waive any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement and that each party has the right to seek attorneys’ fees in any proceeding. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings 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. DISPUTE RESOLUTION BY BINDING ARBITRATION. PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Phonexa, whether arising out of or relating to these Terms (including any alleged breach thereof), the Service, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and Phonexa are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized ReliefYOU AND PHONEXA AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND PHONEXA AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
We are always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, You and Phonexa agree that a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Phonexa should be sent to 500 N. Brand Blvd., Suite 1600, Glendale, CA 91203 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Phonexa and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Phonexa may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Phonexa or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Phonexa is entitled.
d. Arbitration Procedures
Unless you and Phonexa agree in writing to proceed before a different arbitral body and/or arbitral rules, any arbitration between you and US will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Phonexa and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA or the arbitrator. If your claim is for $10,000 or less, Phonexa agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement or the parties entered into a separate agreement. If the value of the relief sought is $75,000 or less, at your request, Phonexa will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Phonexa will pay your portion of such fees. If you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Phonexa will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms to the contrary, Phonexa agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Phonexa.com written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).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 PERSON 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.15. ENFORCEMENT.
Phonexa wishes to maintain the Website 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 Website because Phonexa reserves the right to view, monitor, and/or record activity on the Website (in accordance with applicable law) and to comply with government or court appointed authorities when necessary. Actual or attempted unauthorized use of the Website may also result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. 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 Website. 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.16. PRIVACY.
Please read this information carefully. In order to offer you a service, you may be required to use and accept electronic signatures, records, and disclosures. By accepting this E-Consent Notice, Phonexa may interact with you electronically, including sending you electronic notices related to your interactions and transactions. By accepting this E-Consent Notice, you are also consenting to enter into binding legal obligations via electronic signatures, which are as valid and binding as signatures on paper18. TERMINATION.
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 unauthorized 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 Website. But, all applicable provisions of this Agreement will survive termination, as outlined below. Any licenses from Phonexa and any right to use the Website 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.19. MISCELLANEOUS.