Customer Agreement

PHONIZE MEDIA PLATFORM AGREEMENT

IMPORTANT – PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THE PHONIZE MEDIA PLATFORM AGREEMENT (“AGREEMENT”) FOR ACCESS TO THE PHONIZE MEDIA ONLINE PLATFORM SERVICE (THE “PHONIZE MEDIA SERVICE”). THIS AGREEMENT ALSO CONTAIN AN AGREEMENT TO ARBITRATE IN SECTION 14 BELOW WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST PHONIZE MEDIA TO BINDING AND FINAL ARBITRATION. BY CLICKING ON THE “I AGREE” BUTTON, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING PHONIZE MEDIA’S PRIVACY POLICY, AVAILABLE AT https://phonize.com/morf-media-privacy-policy/ (“PRIVACY POLICY”), AND ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING THE PRIVACY POLICY AND ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) ON BEHALF OF THE ENTITY OR PERSON IN RESPECT OF WHOM THE PHONIZE MEDIA SERVICE WAS ORDERED AS NAMED IN THE PURCHASE ORDER SUBMITTED TO PHONIZE MEDIA (SUCH ENTITY OR PERSON, “CUSTOMER”), AND TO BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING THE PRIVACY POLICY AND ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), AND (3) YOU AGREE THAT CUSTOMER IS ENTERING INTO THIS AGREEMENT (INCLUDING THE PRIVACY POLICY AND ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) WITH PHONIZE MEDIA, INC. (“PHONIZE MEDIA”). IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD CLICK ON THE “CANCEL” BUTTON TO DISCONTINUE THE REGISTRATION PROCESS. IF YOU ARE A COMPETITOR OF PHONIZE MEDIA YOU MAY NOT ACCESS OR USE THE PHONIZE MEDIA SERVICE WITHOUT PHONIZE MEDIA’S PRIOR WRITTEN CONSENT.

 

  1. Definitions
    • “Acceptable Use Policy” means Phonize’s acceptable use policy available at https://phonize.com/terms-of-use/.
    • “Authorized Users” means employees or contractors of Customer who are authorized to access and use the Phonize Service, solely for Customer’s internal business purposes and otherwise in compliance with this Agreement.
    • Course Fee means the course fee set forth on a Purchase Order and payable by Customer to Phonize for an individual course made available by Phonize through the Phonize Service.
    • Feedback” means any and all suggestions and feedback provided to Phonize by Customer or Authorized Users regarding the functioning, features, and other characteristics of the Phonize Service, or other materials or services provided or made available by Phonize.

 

  • Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.
  • “Phonize Website” means Phonize’s website located at www.phonize.com or any other website designated by Phonize.
  • “Purchase Order” means a written purchase order from Customer for the purchase of a Subscription to the Phonize Service or to purchases individual courses or other services provided by Phonize.
  • Subscription Fee means the subscription fee set forth on a Purchase Order and payable by Customer to Phonize for the Subscription.
  • Term” has the meaning given to such term in Section 8.1.
  • User Data means any and all data or information (including personally identifiable information) of Customer or its Authorized Users, uploaded or submitted to the Phonize Service or provided to Phonize by Customer or its Authorized Users, in connection with the Phonize Service or any services provided by Phonize.
  1. Phonize Service; Restrictions; Authorized Users
    • Phonize Service. Subject to the terms and conditions of this Agreement (including the payment of applicable fees), Phonize will provide Customer and Authorized Users, during the Term, access to the Phonize Service. Phonize hereby grants to Customer a non-exclusive, non-transferable, limited license, solely during the Term to access and use, and permit its Authorized Users to access and use the Phonize Service, over the Internet, solely for Customer’s internal business purposes.
    • Restrictions. Customer shall not, and it shall not permit any Authorized User or third party to: (i) modify, adapt, translate or create derivative works based on the Phonize Service; or (ii) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Phonize Service; or (iii) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the Phonize Service, except to the extent expressly permitted herein. Phonize reserves all rights and licenses not expressly granted to Customer and no implied license is granted by Phonize. Customer agrees not to remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Phonize on or within the Phonize Service.
    • Authorized Users. With respect to each Authorized User, Customer shall ensure that each Authorized User (i) accesses and uses the Phonize Service solely for Customer’s own internal business purposes and (ii) agrees in writing, or is otherwise bound by this Agreement including, without limitation, Authorized User’s compliance with Phonize’s Acceptable Use Policy. Customer acknowledges and agrees that any non-compliance by any Authorized User with this Agreement, including, without limitation, any of the requirements above will be deemed a breach by Customer of this Agreement.
  2. Exclusions. Notwithstanding anything in this Agreement to the contrary, Phonize will have no responsibility or liability of any kind under this Agreement, arising or resulting from: (i) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Phonize; (ii) nonconformities resulting from Customer’s, its Authorized Users’, or any third party’s misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Phonize Service; or (iii) any other factor outside of Phonize’s reasonable control.
  3. Customer Obligations
    • User Data. The parties acknowledge and agree that Customer will be the controller of all User Data for purposes of all applicable laws and regulations relating to data privacy, trans-border data flows and data protection, with rights to determine the purposes for which the User Data is processed, so long as it is not inconsistent with Phonize’s services hereunder and the functionality provided through the Phonize Service. Customer acknowledges and agrees that Customer is solely responsible for the security of User Data. Customer grants to Phonize, during the Term, a non-exclusive, royalty-free, fully-paid, worldwide license, under all of Customer’s intellectual property and proprietary rights, to any and all User Data reasonably necessary for Phonize to provide Customer the Phonize Service and other services hereunder. Customer represents and warrants that it has all the rights necessary to grant the licenses granted herein to Phonize in and to such User Data.
    • Indemnification. Customer will defend at its own expense any claim or action against Phonize, or its affiliates, or their respective officers, directors, employees or contractors (each an “Phonize Indemnified Party”) brought by a third party or governmental entity, and will indemnify and hold harmless each Phonize Indemnified Party from and against all costs (including reasonable attorneys’ fees) and damages incurred by such Phonize Indemnified Party in any such claim or action, to the extent that the action is based on: (i) allegations that the Customer’s activities in connection with the services hereunder, violate any applicable law (including the CAN-SPAM Act) or infringe or misappropriate the Intellectual Property Rights of any third party; (ii) User Data or a violation of any applicable privacy law, rule or regulation by Customer, except to the extent caused by Phonize’s use of User Data that exceeds the scope of the license granted in Section 4.1; or (iii) Authorized User claims. The foregoing obligations are conditioned on Phonize notifying Customer promptly in writing of such action, giving Customer sole control of the defense thereof and any related settlement negotiations, and at Customer’s reasonable request and expense, cooperating and assisting in such defense. Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence or other culpability of Phonize or any Phonize Indemnified Party or requires Phonize or any Phonize Indemnified Party to contribute to the settlement without Phonize’s prior written consent. Phonize and any Phonize Indemnified Party may participate and retain its own counsel at its own expense.
  4. Ownership
    • By Phonize. Phonize and its suppliers retain all right, title and interest in and to all Intellectual Property Rights in the Phonize Service, and all other materials provided or made available to Customer in connection with the services provided by Phonize, and any and all modifications, updates, and enhancements to the foregoing items. In addition, Customer hereby licenses Feedback and Blind Data to Phonize on a worldwide, perpetual, irrevocable, non-exclusive, freely-transferable, fully paid, and royalty-free basis, for Phonize to use and exploit in any manner and for any purpose.
    • By Customer. Customer retains all right, title and interest, including all Intellectual Property Rights, in and to User Data, subject to the license granted to Phonize in and to the Blind Data.
  5. Subscription Terms. The Subscription shall commence as of the date Customer purchases a Subscription and continue for a period two (2) years, and thereafter shall automatically renew for successive terms of one (1) year, unless Customer provides Phonize written notice of non-renewal upon at least thirty (30) days’ prior to the expiration of Customer’s then-current Subscription. Subscriptions shall be renewed at Phonize’s then-current Subscription Fee for the Phonize Service. Customer acknowledges and agrees that Phonize (or its third party payment processor) is authorized to charge Customer on a recurring basis for Customer’s Subscription (in addition to any applicable taxes and other charges) for as long as Customer’s Subscription continues in accordance with this Agreement.

 

  1. Fees and Payment
    • Fees. Customer shall pay to Phonize the Subscription Fee and/or Course Fees, as the case may be, or any other fees or charges incurred by Customer as specified in a Purchase Order (the “Fees”), in accordance with the terms specified therein. Phonize may increase the amount of fees and rates payable by Customer upon written notice to Customer, provided that any such increase shall not be more than once in any six (6) month period during the Term. Unless otherwise set forth in this Agreement on the Purchase Order, all Fees are non-refundable and non-cancelable. The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Phonize’s income), and any related penalties and interest, arising from the payment of the fees.
    • Terms of Payment. Phonize’s obligation to provide the Phonize Service is expressly conditioned upon the timely payment of the Fees. All payments made to Phonize shall be in U.S. Dollars. Phonize reserves the right to suspend any or all services (including the availability of the Phonize Service) hereunder immediately if payments are past due.
    • Records. At all times during the Term, and for at least three (3) years thereafter, Customer will maintain at its principal place of business complete and accurate records with respect to Customer’s activities pursuant to this Agreement, including a complete list of the Authorized Users, and all other information needed for verification of amounts to be paid to Phonize under this Agreement and Customer’s compliance with this Agreement.
    • Audit Rights. Phonize will have the right, during normal business hours and upon at least ten (10) business days’ prior notice, to inspect, or have an independent audit firm selected by Phonize inspect, Customer’s records relating to its access and use of the Phonize Service under this Agreement in order to verify that Customer has paid Phonize the correct amounts owed under this Agreement and otherwise complied with the terms and conditions of this Agreement. The audit will be conducted at Phonize’s expense, unless the audit reveals that Customer has underpaid the amounts owed to Phonize by more than five percent (5%) or failed in some other material respect to comply with the terms and conditions of this Agreement, in which case Customer will reimburse Phonize for all reasonable costs and expenses incurred by Phonize in connection with such audit. Customer will promptly pay Phonize for any amounts shown by such audit to be due and owing to Phonize. Such audits will be conducted no more than once in any period of twelve (12) consecutive months. This right will survive termination of this Agreement for three (3) years.
  2. Term and Termination
    • Term. This Agreement will remain in effect until the termination of this Agreement in accordance with Section 8.2 or 8.3 or the expiration of Customer’s then-current Subscription (the “Term”).
    • Termination for Cause. Either party may terminate this Agreement for material breach by the other party that remains uncured thirty (30) days after delivery of written notice to the breaching party describing such breach in reasonable detail. The foregoing rights of termination are in addition to any other rights and remedies provided in this Agreement or under applicable law.
    • Effects of Termination. Upon expiration or termination of this Agreement or any specific Subscription for any reason, Customer shall cease (and require all Authorized Users to cease) using, and destroy, any and all information or materials supplied by Phonize, including any related materials or documentation provided by Phonize, and all copies thereof, in Customer’s possession or control. Upon expiration or termination of this Agreement for any reason, all Fees due to Phonize under all Purchase Orders, shall be immediately due and payable, provided that if Customer terminates this Agreement pursuant to Section 8.2, Phonize, will refund to Customer any Subscription Fees paid in advance by Customer for any unused portion of the Term for which such payment was made. If Customer terminates this Agreement or any specific Subscription for any reason other than in accordance with Sections 8.2, the Subscription Fee for Customer’s then-current Term shall be immediately due and payable. Course Fees are non-refundable and non-cancelable. The following Sections will survive expiration or termination of this Agreement: 1, 2.2, 3, 4.2, 5, 7, 8.3, 9, 10, 11, 12, 13, 14, 15 and 16.
  3. the PHONIZE MEDIA service, THE COURSES, AND any other MATERIALS OR CONTENT provided by Phonize THROUGH OR IN CONNECTION WITH THE PHONIZE MEDIA SERVICE are provided as-is. Phonize MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO the PHONIZE MEDIA service, THE COURSES, AND any other MATERIALS OR CONTENT provided by Phonize THROUGH OR IN CONNECTION WITH THE PHONIZE MEDIA SERVICE, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Phonize DOES NOT WARRANT THAT the PHONIZE MEDIA service, THE COURSES, OR any other MATERIALS OR CONTENT provided by Phonize THROUGH OR IN CONNECTION WITH THE PHONIZE MEDIA SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OF THEIR USE WILL BE CORRECT, ACCURATE, OR RELIABLE. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES AND THAT NO WARRANTIES ARE MADE BY ANY OF Phonize’s SUPPLIERS.
  4. Limitation of Liability. IN NO EVENT shall Phonize BE LIABLE, UNDER ANY CONTRACT, TORT (INCLudiNG NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING LOSS OF OR DAMAGE TO DATA, COST OF COVER, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS, ARISING FROM OR IN CONNECTION WITH the PHONIZE MEDIA service, THE COURSES, OR any other MATERIALS OR CONTENT provided by Phonize THROUGH OR IN CONNECTION WITH THE PHONIZE MEDIA SERVICE OR THE USE, MISUSE, OR INABILITY TO USE, IN WHOLE OR IN PART, the PHONIZE MEDIA service, THE COURSES, OR any other MATERIALS OR CONTENT provided by Phonize THROUGH OR IN CONNECTION WITH THE PHONIZE MEDIA SERVICE, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT PHONIZE MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Phonize’s total cumulative LIABILITY ARISING FROM OR IN CONNECTION WITH the PHONIZE MEDIA service, THE COURSES, AND any other MATERIALS OR CONTENT provided by Phonize THROUGH OR IN CONNECTION WITH THE PHONIZE MEDIA SERVICE, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, EXCEED THE TOTAL SUBSCRIPTION FEE ACTUALLY PAID TO Phonize BY Customer CORRESPONDING TO THE Particular SUBSCRIPTION IN RESPECT OF WHICH THE LIABILITY AROSE AND LIMITED TO THE PRO-RATA AMOUNT OF SUCH SUBSCRIPTION FEE CORRESPONDING TO THE THREE (3) MONTH PERIOD immediately preceding the date the first claim giving rise to SUCH liability arose. CUSTOMER AGREES THAT Phonize’s SUPPLIERS AND AFFILIATES WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THIS AGREEMENT. The Disclaimer and limitation of liability set forth IN SECTIONS 9 and 10 are fundamental elements of the basis of This Agreement between Phonize and the Customer. Without such limitations Phonize would not be able to provide the Phonize Service on an economic basis.
  5. Application of Limitations and Disclaimers to Consumers. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in Sections 9 and 10 above may not apply to Customer if Customer is a consumer. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in this Agreement shall apply to consumer Customers only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where such Customer is located.
  6. Basis of Bargain. The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of the agreement between Phonize and Customer. Phonize would not be able to provide the Phonize Service on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Phonize’s suppliers.
  7. Waiver of Right to Void Online Purchases. To the maximum extent permitted by applicable law, Customer waives its rights to void purchases under this Agreement pursuant to any law governing distance selling or electronic or online agreements, as well as any right or obligation regarding prior information, subsequent confirmation, rights of withdrawal, or cooling-off periods.
  8. Governing Law & Dispute Resolution. This Agreement shall be governed by the laws of the State of California without giving effect to any conflicts of laws principles that would require the application of the law of another state or jurisdiction. Any and all disputes or claims arising from or related to this Agreement shall be resolved exclusively through final, binding and confidential arbitration. The location of arbitration shall be Santa Clara, California, USA, and the arbitration shall be conducted under the rules of the American Arbitration Association, as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction. Notwithstanding anything in this Agreement to the contrary, Phonize may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, to prevent immediate harm arising from the threatened or actual violation of Phonize’s rights regarding Phonize’s intellectual property rights in and to the Phonize Service and Customer hereby consents to the personal jurisdiction and exclusive venue in such courts.
  9. Miscellaneous. Neither the rights nor the obligations arising under this Agreement are assignable by Customer, and any such attempted assignment or transfer shall be void and without effect. Any waiver, amendment or modification of any provision of this Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this Agreement shall not be deemed a waiver of that right. Each party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such party’s obligations have been duly authorized and that this Agreement is a valid and legal agreement binding on the party and enforceable according to its Agreement. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from this Agreement and shall not affect the legality, enforceability or validity of the remainder of this Agreement. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in this Agreement and its performance shall be construed as creating a joint venture or agency between Phonize and Customer. Phonize may delegate the performance of any services hereunder to its affiliates and contractors. this Agreement constitute the entire agreement between the parties regarding this subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described.   Any notice to Customer may be provided by email. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Any delay in performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party. Phonize may refer generally to the existence of this Agreement and use the Customer’s name in press releases, on web sites, and other promotional material, but will not reveal any specific Agreement of this Agreement or any non-public and proprietary information designated “confidential” in writing by Customer.
  10. Changes to this Agreement.   Phonize reserves the right to change the terms and conditions of this Agreement in its sole discretion from time to time. All such changes will be effective when posted on the Phonize Website or emailed to Customer at the e-mail designated in Customer’s account. Customer agrees to review the Phonize Website periodically for changes. Phonize reserves the right to change or discontinue the Phonize Service, in whole or in part, including without limitation, the Internet based services, pricing, technical support options, and other product-related policies. Customer’s continued use of the Phonize Service after such changes are made to this Agreement and are made available on the Phonize Website or emailed to Customer will indicate Customer’s acceptance to the changes.
  11. Questions or Additional Information. If Customer has questions regarding this Agreement, please send an e-mail to [please insert contact address].