These Terms of Service (these “Terms”) are between You and Phaze (as defined below), and govern Your use of the Services (as defined below) provided by Phaze.
YOU MUST AGREE TO THESE TERMS TO USE THE SERVICES; IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE SERVICES. YOU REPRESENT AND AFFIRM TO PHAZE THAT YOU (I) HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS; AND (II) ARE AT LEAST 18 YEARS OF AGE OR OLDER WITH THE AUTHORITY TO AGREE TO THESE TERMS ON YOUR OWN OR SOMEONE ELSE’S BEHALF.
IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH LEGAL ENTITY TO THESE TERMS, IN WHICH CASE, THE DEFINED TERMS “ENTERPRISE” “USER”, "YOU" OR "YOUR" AS DEFINED HEREIN SHALL BE BINDING ON SUCH LEGAL ENTITY. IF YOU ARE USING THE SERVICES AS A PART OF AN ENTERPRISE OR LEGAL ENTITY, AND SUCH ENTERPRISE HAS AGREED TO THESE TERMS OR ANOTHER AGREEMENT WITH PHAZE, THOSE TERMS ARE APPLICABLE TO YOU. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING TERMS, DO NOT PROCEED ON WITH THE ELECTRONIC ACCEPTANCE PROCESS, AND YOU MAY NOT USE THE SERVICES. YOUR REGISTRATION PROCESS WILL END AND YOU WILL NOT BE REGISTERED TO USE THE SERVICES.
Phaze may, in its sole discretion at any time, modify, revise, add to or delete portions of these Terms without further notice to You. You hereby agree to be bound by such modified Terms and can view the most current version of these Terms at any time by going to https://phaze.app/terms. By continuing to use the Services, You agree that the then current version of these Terms govern Your use of the Services.
Certain Services from time to time may be subject to additional terms (“Additional Terms”). Additional Terms are set forth in the Additional Terms page located at phaze.app/terms/additional-terms, which supplement and are incorporated into these Terms. You agree to the applicable Additional Terms, if any, for any Services that You use.]
1. DEFINITIONS. The following defined terms used in these Terms have the following definitions:
1.1. “Affiliate” means any entity, now or hereafter existing that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with another entity.
1.2. “Documentation” means any electronic or printed materials made available by Phaze to accompany the Software and/or Services that provide instructions for installation, operation, maintenance, and use thereof.
1.3. “Enterprise” means the entity identified as such on the Phaze Account associated with this Agreement.
1.4. “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.5. “Machine” means a single computing machine assigned to a User, or if a User is a part of an Enterprise, assigned by an Enterprise to a User or a group of Users, in each case in order to access and use the Services. A Machine may only be assigned to a single Enterprise at a time.
1.6. “Phaze” means Phaze Inc., its Affiliates, and its successors and assigns.
1.7. “Phaze Account” means a user account created with Phaze that uniquely identifies such User with a unique user name, email address, and password.
1.9. “Service Content” means any information, data and content that a User streams through the Software.
1.10. “Service Data” means any files, documents, recordings, chat logs, transcripts, and similar data that we maintain on your or your users’ behalf in connection with the Services.
1.11. “Services” means the services and related Software provided by Phaze under these Terms. Services shall also include any standard support and maintenance services offered by Phaze under these Terms.
1.12. “Software” means certain software applications licensed to You subject to these Terms, in object code format only, that are required for You to connect a Machine to, and use, the Services.
1.13. “User” means a user (and also referred to herein collectively with your Enterprise as “You” or “Your”) of the Services who has created or been assigned a Phaze Account.
1.14. “User Content” means any information, data and content that a User submits to, or uses with, the Services (including content submitted to message boards, content emailed, transmitted, or otherwise made available through the Services). User Content excludes Service Content and Service Data.
2. ONLINE REGISTRATION.
2.1. Registration for a Phaze Account. To use the Services, every User must complete Phaze’s online registration process for a Phaze Account, or a Phaze Account must be created for such User by their Enterprise (collectively, “Registration”). Phaze may reject a User’s Registration at its sole discretion and is not obligated to provide a reason for such rejection. Enterprises are responsible for the use of Phaze Services by, and the compliance with these terms of, their Users in accordance with Section 3.2.2.
2.2. Registration Data. During Registration, Phaze will collect certain limited information about You (“Registration Data”). All Registration Data provided by You must be current, complete, and accurate. You are solely responsible for updating Your Registration Data with Phaze, as necessary. Phaze may terminate all rights to access, receive, use and license the Services if (i) Phaze discovers that any of Your Registration Data is incomplete, inaccurate, or not current, or (ii) Phaze determines, at its sole discretion, that You are not an appropriate User of the Services.
2.3. Passwords. As part of Registration, You must use an email address for Your user name and choose a password for access to Your Phaze Account. You are entirely responsible for maintaining the confidentiality of Your password and agree to carefully safeguard all of Your passwords. You are solely responsible for any and all activities that occur under Your Phaze Account and agree to immediately notify Phaze of any unauthorized use of Your Phaze Account or any other breach of security.
2.4. Agents. You may permit an AI agent, autonomous software system, large language model, or other automated caller (collectively, an “Agent”) to access, invoke or operate the Services for, on behalf of, or in response to your instructions (or instructions of any third party) so long as such Agent is using Your Phaze Account; provided that this feature is provided on a promotional basis and is subject to Section 4.3, and for the avoidance of doubt, Phaze may at any time cease to make this feature available, or impose additional fees in respect thereof.
3. CONSENT TO MACHINE ACCESS; USER CONTENT
3.1. Access to Your Machine. You (or if a User is a part of an Enterprise, Your Enterprise) is solely responsible for setting permissions and access controls which govern how the Services access the Machines You use and whether or not the Services are evident to You while using the Machine(s). Therefore, You may or may not be aware that a particular Machine in Your Enterprise that You use is accessing the Services at any particular time. If You have questions about whether or not You are using a Machine in Your Enterprise that is accessing the Services at any particular time, please direct Your questions to Your Enterprise for assistance.
Phaze shall not be responsible or liable in any way, including for any loss of privacy, or any other loss or damage that You may incur, as a result of any third party (including anyone in Your Enterprise) accessing the Machine(s) You use through the Services, either with or without Your express consent or knowledge. You are responsible for losses incurred by Phaze or another party due to a third party using Your Phaze Account, either with or without Your knowledge, or Your failure to comply with these Terms.
3.2. Responsibility.
3.2.1. Responsibility for Service Content. The Services and Software allow Users to share access to their Machines in order to stream Service Content. You are responsible for the Service Content You make available via the Services, and You and/or Your Enterprise are responsible for determining the appropriate access settings to Your Machine running the Services for individuals You (or Your Enterprise) invite (or accept an invitation from) to access Your Machine using the Services. Phaze does not monitor and is not responsible for any Service Content or any loss or damage that results from use of the Services by Users to share Machines. Each User is solely responsible for his or her own Machine(s) and Service Content. Phaze makes no guarantees regarding the accuracy, currency, suitability, or quality of any User Content or the security of any Machine(s) using the Services or Software. Your interactions with other users are solely between You and such users. You agree that Phaze is not responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between You and any other user, third party or other User, Phaze is under no obligation to become involved and has no liability or responsibility with respect to such dispute. You assume all risks associated with transmission, storage, security, development, creation, modification, and use of Your Service Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of Your Service Content that personally identifies You or any third party. You hereby represent and warrant that Your Service Content does not and will not violate the Acceptable Use Policy referred to in Section 3.4 (“Acceptable Use Policy”) below, and that You are either the creator and owner of the User Content or have sufficient rights and authority to make Your Service Content available as contemplated by these Terms, including to submit or make available Your Service Content through the Software and Services. You may not represent or imply to others that Your Service Content is in any way provided, sponsored or endorsed by Phaze. Unless otherwise specified with respect to a particular Service, Phaze is not obligated to backup any Service Content, and your Service Content, to the extent stored on Service equipment, may be deleted at any time without prior notice. You are solely responsible for creating and maintaining Your own backup copies of Your Service Content if You desire.
3.2.2. Responsibility of an Enterprise. An Enterprise is responsible for the acts and omissions of its Users, including acts and omissions of any other person that accesses and uses the Services by using the access credentials provided to its Users, as its own acts and omissions.
3.3. License; Service Content.
3.3.1. You retain all rights to Service Content and we do not own or license your Service Content. We may use your Service Content in order to provide and operate the Services. You warrant that you have the right to stream the Service Content to the Machine(s) you choose via the Services, and (ii) your streaming of your Service Content in the context of our Services does not infringe on any rights of any third party. Phaze under this Section 3.3.1 may: (A) monitor and use Service Content for operating and improving the Services, either to allow the Services to work more optimally within Phaze’s existing design or to allow Phaze to design and implement new features and functionalities, and (B) use automated systems and algorithms to analyze Service Content (i) to recognize patterns in data to improve the Services or certain functionality and (ii) to customize the Services for a particular customer or groups of customers.
3.3.2. To the extent that You provide User Content to Phaze (in connection with reviews, communications with other Users, Registration, message boards, etc.), You hereby grant (and represent and warrant that you have the right to grant) Phaze an irrevocable, non-exclusive, royalty-free and fully-paid-up, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit such User Content, and to grant sublicenses of the foregoing rights, in connection with the operation and improvement of the Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
3.3.3. Service Data is part of the Service, and as between Phaze and You, Phaze retains all ownership rights to the Service Data.
3.4. Acceptable Use Policy. You agree not to use the Services in any way (i) that violates any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other Intellectual Property Right or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party; or (v) for which you do not have the required right(s).
In addition, you agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Services unsolicited or unauthorized advertising; (iii) use the Services to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (v) reverse engineer, alter, modify or create derivative works based on the Services, or attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Services; (vii) sell, resell, rent, lease, lend, distribute, assign, or otherwise transfer Your rights to use the Services or use the Services for commercial time sharing, rental, service bureau use or any other form of use for the benefit of any person or entity other than You; (viii) use the Services for any illegal purposes; (ix) use the Services to enable copyright protection-circumvention devices or to violate or circumvent in any manner any content copyright, content protection scheme, or content copy policies; (x) use the Services for any other purpose than its intended purpose; (xi) introduce any Open Source Software into the Services or (xii) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
Phaze takes no responsibility and assumes no liability for any User Content, Service Content or for any loss or damage resulting therefrom, nor is Phaze liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter in Service Content when using the Services. Your use of the Services is at your own risk. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these Terms.
3.5. Enforcement. Phaze reserves the right (but has no obligation) to investigate and/or take appropriate action against You or any User in Phaze’ sole discretion with respect to Your User Content or Service Content if You violate the Acceptable Use Policy or any other provision of these Terms. Such action may include removing or modifying Your User Content, terminating Your Account in accordance with these Terms, and/or reporting You to law enforcement authorities. You agree to indemnify and hold Phaze harmless from all costs, expenses, damages, and all other losses incurred by Phaze arising from or in connection with Your breach or violation of the Acceptable Use Policy set forth above.
4. FEES; PAYMENTS AND TAX LIABILITY
4.1. Fees Generally. Services are provided on a consumption basis. Phaze’s current fees are available at https://phaze.app/pricing (collectively, “Fees”). Phaze will, on a monthly basis, calculate Fees and bill You via any payment method we support, such as a credit card, or issue you an invoice for Fees; provided, we may bill You more frequently for Fees accrued if we reasonably suspect that your account is at risk of non-payment. You agree to make timely payment(s) in respect of Fees to Phaze including, where applicable, any and all state and local taxes, duties and fees of all amounts set forth in any bill or invoice. Unless stated otherwise, all prices and fees for the applicable Subscription are exclusive of taxes and regulatory fees. Where applicable, taxes and regulatory fees will be charged on the invoices electronically issued by Phaze in accordance with local laws and regulations. Phaze, at its sole discretion, will calculate the amount of taxes due. The taxes and regulatory fees charged can be changed without notice. All Fees will be paid without setoff or counterclaim, and without any deduction or withholding. Fees are non-cancellable, and payments made are non-refundable except where required by applicable law. Fees not paid when due may bear interest at a rate of up to one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is lowest, plus all expenses of collection, and may result in immediate termination of Service. If it is determined that pricing was incorrectly applied to purchase of Phaze Services, whether in error or as a result of conduct, pricing for Phaze Services will be updated accordingly and all amounts that should have been due under standard pricing shall immediately become due and payable within thirty (30) days of notice thereof. Phaze may suspend or terminate the Services on a Phaze Account due to any payment delinquency and You agree to reimburse Phaze for all reasonable costs and expenses incurred in collecting such delinquent amounts.
4.2. Tax exemptions; Tax determination. If You are exempt from any taxes or fees, You must provide Phaze with all appropriate tax exemption certificates and/or other documentation satisfactory to the applicable taxing authorities to substantiate such exemption status. Phaze reserves the right to review and validate tax exemption documentation. Tax determination is principally based on the location where You have established business, or for individuals, where that individual permanently resides. Phaze reserves the right to cross reference this location against other available evidence to validate whether such location is accurate. In the event that such location is inaccurate, Phaze reserves the right to charge for any outstanding taxes and fees.
4.3. Free / Promotional Offers. From time to time, Phaze may offer certain test, trial and/or promotional offers. Phaze reserves the right to modify or discontinue any such offers at its sole discretion and without notice. Any such offers are limited to one (1) per Licensed User and may not be combined with any other offers.
5. LICENSE; LICENSE RESTRICTIONS
These end user license terms form an integral part of these Terms and grant each User a right and license to use the Software under certain limits, restrictions, terms and conditions (“EULA”). Each User agrees to be bound by this EULA before using the Software and accessing the Services.
5.1. License Grant. Each User is granted a non-transferable, non-sublicensable, non-exclusive license to use the Software and Documentation with respect to a single Phaze Account on any Machine(s) on which such User is signed into such User’s Phaze Account, subject to full compliance with this Section 5 and the rest of these Terms.
5.2. Software Restrictions. You shall not, directly or indirectly, nor shall You cause or permit any other person to: (i) in whole or in part, copy, reproduce, transfer, create derivative works from, translate, modify, reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or underlying ideas or algorithms of the Software; (ii) alter, modify or create derivative works based on the Software, or remove any portion thereof; (iii) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded by Phaze on or in any Software or Documentation; (iv) sell, resell, rent, lease, lend, distribute, assign, or otherwise transfer Your rights to use the Software or Documentation or use it for commercial time sharing, rental, service bureau use or any other form of use for the benefit of any person or entity other than You; (v) use the Software, Documentation or any component thereof for any illegal purposes; or (vi) use the Software or Documentation, or any component thereof, to enable copyright protection-circumvention devices or to violate or circumvent in any manner any content copyright, content protection scheme, or content copy policies; (vii) use the Software for any other purpose than its intended purpose; (viii) interfere with or disrupt the integrity or performance of the Software; or (ix) introduce any Open Source Software into the Software;. For purposes herein, “Open Source Software” means all software that is available under any software license that is approved by the Open Source Initiative (www.opensource.org).
5.3. Third Party Software.
5.3.1. Third Party Software Generally. Certain Third Party Software (as defined below) provided in or with the Software is subject to various other terms and conditions imposed by the licensors of such Third Party Software. Your use of the Third Party Software is subject to and governed by the respective Third Party Software licenses, which relevant licenses for such Third Party Software You may view from within such Software. Any acquisition by you of such Third Party Software, including any exchange of data between You and any provider of Third Party Software, is solely between You and the applicable provider of the Third Party Software. Phaze does not warrant, support or assume any liability for any Third Party Software, regardless of whether or not such Third Party Software is designated by Phaze as “certified” or otherwise, except as specified in writing in an order form or Documentation. For purposes herein, “Third Party Software” means certain software, if any, that Phaze licenses from third parties and provides to You in connection with the Services that is incorporated into the Software. The Services may contain features designed to interoperate with Third Party Software (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third Party Software from their providers. If the provider of any Third Party Software ceases to make the Third Party Software available for interoperation with the corresponding Service features on reasonable terms, Phaze may cease providing such features without notice, and You acknowledge that You will not be entitled to any refund, credit, or other compensation resulting therefrom. Phaze may use the services of one or more third parties to deliver any part of the Services. You agree to comply with any acceptable use policies and other terms of any Third Party Software provider that are provided or otherwise made available to You through such Third Party Software from time to time.
5.3.2. Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to You, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Phaze.
6. INTELLECTUAL PROPERTY PROTECTION; FEEDBACK
Phaze or its licensors retain ownership of all Intellectual Property Rights in or associated with the Software and Services that are protected by United States and international copyright and other intellectual property laws and international trade provisions. You further acknowledge that the Software and Services may contain unpublished information and embody valuable trade secrets proprietary to Phaze and/or its licensors. Phaze and/or its licensors reserve all rights in the Software and Services not expressly granted herein. The license granted hereunder and Your right to use the Software and Services terminate automatically if You violate any part of the Terms.
7. CONFIDENTIAL INFORMATION
“Confidential Information” means any non-public business or technical information of Phaze including, without limitation, any information relating to Phaze’s trade secrets or know-how that is designated as “confidential,” either orally or in writing, or that You know or should know is considered confidential or proprietary by Phaze. You agree to maintain the Confidential Information in strict confidence and not to use Confidential Information except as expressly authorized by these Terms. You shall ensure that no unauthorized persons shall have access to the Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (i) becomes part of the public domain through no breach of the Terms by You; (ii) is independently developed by You without reference to any Confidential Information; or (iii) is rightfully disclosed to You by a third party without restriction on disclosure.
8. TRADEMARKS; PUBLICITY
You acknowledge and agree that the term Phaze and other related logos and designs provided hereunder (collectively, the “Phaze Trademarks”) are the exclusive trademarks of Phaze, registered in the United States and elsewhere, and that You shall not use or reproduce the Phaze Trademarks without first obtaining a trademark license from Phaze. All other trademarks and service marks referenced in the Services or Phaze website are the exclusive property of their respective owners. Phaze may use User’s or Enterprise’s name, trade name, service marks, trademarks, trade dress or logo in publicity releases, advertising or similar activities without User’s prior written consent, including to indicate that such User or its Enterprise is a customer of Phaze. All rights reserved. If you provide Phaze with feedback regarding the Service, Phaze may use your feedback, including attributing such feedback to the Enterprise and/or the User, and/or using the logo of the Enterprise or the likeness of the User, as applicable, for its own marketing purposes.
9. PRIVACY; DATA PROCESSING; DATA SECURITY
9.1. Privacy Policy. Phaze’s use of any information provided by You, including without limitation, Registration Data and payment information, is set forth in Phaze’s current Privacy Policy, which can be found at https://phaze.app/privacy.
9.2. Data Processing. By agreeing to the terms of this Agreement, You also agree to the terms of Phaze’s Data Processing Addendum (“DPA”), available at https://phaze.app/terms/dpa. Phaze acts as its data processor under the DPA for the data processing related to the Services in use. The DPA does not apply if You are a natural person using the Software or the Services in the course of a purely personal or family activity.
9.3. Data Security. Phaze will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Registration Data. Notwithstanding the foregoing, You acknowledge that, notwithstanding any security precautions deployed by Phaze, the use of, or connection to, the internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services and Registration Data. Phaze cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the internet or otherwise or that any such security precautions will be adequate or sufficient.
10. UPDATES AND SUPPORT
Phaze may, from time to time, at its sole discretion, and without any obligation to do so, make updates to the Services. All such updates shall be deemed to be included within the definition of Services and shall be subject to these Terms. Phaze reserves the right to charge fees for any future versions of, or updates to, the Services. You may also have the option to separately purchase upgraded or premium support services in connection with your Subscriptions. For more information, contact sales@phaze.app.
11. TERM AND TERMINATION
11.1. Term. These Terms shall commence on the date of Your electronic acceptance. These Terms continue to apply and govern your use of the Services until the termination of Your Subscription and/or Your Phaze Account. You may terminate these Terms at any time by terminating Your Subscription, removing the Software and Documentation from Your Machine, leaving Your Enterprise, deleting Your Phaze Account, and ceasing to access and use of the Services. In addition, Your Enterprise may control Your ability to terminate Your access and use of the Services.
11.2. Suspension and Termination. Phaze may immediately terminate these Terms and Your Phaze Account, Subscription, license, and right to use the Services if (i) You breach these Terms, including, without limitation, the Acceptable Use Policy; (ii) You, individually or as a legal entity, or Your Enterprise, declare bankruptcy, are involved in any bankruptcy proceedings or are otherwise insolvent; or (iii) Phaze decides, at its sole discretion, to discontinue offering the Services, in which case Phaze shall notify You in advance, whenever possible, and provide You with alternative plans or options to minimize any inconvenience that may be caused by such termination. Phaze shall not be liable for any damages resulting from a termination of these Terms as provided for herein. Upon termination of these Terms: (a) all licenses and rights granted hereunder will automatically terminate without further notice to You; and (b) You will immediately discontinue all access to and use of the Services and destroy the Software and Documentation, and all copies thereof. All sections of these Terms which, by their nature are intended to survive termination, shall so survive termination or expiration of these Terms.
13. DISCLAIMER OF WARRANTIES
THE SERVICES, SOFTWARE, ANY UPDATES THERETO, ANY DOCUMENTATION AND INFORMATION ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. PHAZE, ON BEHALF OF ITSELF AND ITS LICENSORS, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND ANY SAMPLE, SPECIFICATION OR PROPOSAL PROVIDED BY PHAZE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. PHAZE DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, SATISFACTORY QUALITY OF THE SERVICES OR THAT THE SERVICES WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED, MEET YOUR REQUIREMENTS, BE FREE OF VIRUSES OR THAT PHAZE WILL CORRECT ALL ERRORS. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR MACHINE OR OTHER COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. SOME LAWS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO, TO THAT EXTENT, THIS LIMITATION MAY NOT APPLY TO YOU.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL PHAZE, OR ITS LICENSORS, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OR IN CONNECTION WITH THESE TERMS, IRRESPECTIVE OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, GROSS NEGLIGENCE, NEGLIGENT MISREPRESENTATION) OR PRODUCT LIABILITY, EVEN IF PHAZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
IN NO EVENT WILL PHAZE’S CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICES EXCEED THE TOTAL FEES PAID BY YOU IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY.
14. INDEMNIFICATION
You hereby agree, at Your sole expense, to indemnify, defend and hold Phaze and its Affiliates, employees, officers, directors, owners, information providers, agents, licensees, licensors (the “Indemnified Parties”) harmless from and against any and all liabilities, claims, costs, including reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any demand, claims, action, suit, or loss arising as a result of (a) any breach by You of these Terms or claims arising from Your Phaze Account; (b) any fraud, willful misconduct, gross negligence, violation of law or misrepresentation by You; (c) a third-party claim, action or allegation of infringement based on information, data, files or other content, including User Content and/or Service Content, submitted by You; or (d) any claims of credit card fraud based on any information released by You. You agree to use best efforts to cooperate with Phaze in the defense of any demand, claim, action or suit. Phaze reserves the right to assume the exclusive defense of any matter subject to indemnification by You at Phaze’s own expense.
15. EXPORT CONTROLS
You acknowledge and agree that the Software and Services licensed under these Terms are subject to the export control laws and regulations of the United States (including, without limitation, the Export Administration Regulations (“EAR”), and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls.). You shall, at Your own expense, comply with all applicable laws, ordinances, regulations, rules and other requirements. You shall not, without prior U.S. government authorization, export, re-export or transfer any Software, Services or technology subject to these Terms, either directly or indirectly (i) into any country subject to a U.S. trade embargo or to any resident or national of any such country, or (ii) to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury. By downloading Software or using the Services, You are agreeing to the foregoing and You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.
16. HIGH-RISK USE
You hereby acknowledge that the Software and Services are not designed or intended for access and/or use in or during high-risk activities and shall not be used in connection with any system where malfunction can reasonably be expected to result in personal injury, death or damage to property, environment, or business. Without limiting the foregoing, the Software and Services shall not be used in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, implantable medical equipment, motor vehicles, weaponry systems or any life support system. Phaze and its licensors hereby expressly disclaim any express or implied warranty of fitness for such purposes. Without limiting your obligations under Section 14, You agree to hold Phaze and its officers, directors, employees, Affiliates, and licensors harmless from any claims or losses resulting from any of the foregoing uses of the Software and Services.
17. MISCELLANEOUS
17.1. You may not assign or transfer these Terms or any rights or obligations under these Terms. Any assignment or transfer of these Terms made in contravention of the terms hereof shall be null and void. Subject to the foregoing, these Terms shall be binding on and inure to the benefit of the parties’ respective successors and permitted assigns. Phaze may assign its rights under these Terms to its Affiliates and to any successor by way of merger, acquisition, consolidation, reorganization, or sale of all or substantially all of its assets that relate to these Terms, without action on Your part, in which case references to Phaze herein shall be deemed to refer to the assignee.
17.2. Notices by Phaze to You may be sent to the email address provided by You during the online Registration process or through your Phaze Account. All notices by You to Phaze regarding these Terms shall be in writing and sent by express carrier or certified mail to Phaze Inc., 6300 Sagewood Dr., Suite H-479, Park City Utah 84098, United States.
17.3. These Terms constitute the entire agreement between You and Phaze concerning Your use of the Services and Software, and by accepting these Terms, You expressly acknowledge that these Terms supersede any prior or contemporaneous agreements, communications and/or understandings, written or oral, concerning Your use of the Services and Software. Phaze will not be bound by any provision of any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, regardless of whether these Terms are silent on the matter, under any circumstances, unless Phaze expressly agrees to the provision in a written, executed document.
17.4. You agree not to bring or participate in any class action lawsuits against Phaze. You agree that You will not bring a claim under these Terms more than two (2) years after expiration or termination of these Terms. No waiver of any provision or consent to any action by Phaze shall constitute a waiver of any other provision or consent to any other action, whether or not similar. No waiver or consent by Phaze shall constitute a continuing waiver or consent except to the extent specifically set forth by Phaze in writing. These Terms and any disputes in connection arising hereunder shall be exclusively governed by the laws of the State of California, United States of America, excluding the United Nations Convention on Contracts for the International Sale of Goods, including any amendments thereto, and without regard to principles of conflicts of law. Phaze and each User unconditionally and irrevocably consent to the exclusive jurisdiction of the federal and/or state courts located in Los Angeles, County, California with respect to any dispute, action, suit or proceeding arising out of or relating to these Terms or the transactions contemplated hereby and the parties waive any objection with respect to such courts for the purpose of any such dispute, action, suit or proceeding. If any provision of these Terms shall be held to be invalid, illegal or unenforceable, such provision shall be enforced to the maximum extent permitted by law and the remaining provisions shall not be affected.