DESCRIPTION OF SERVICE. Phynk LLC provides a web-based application (“Phynk”) for managing
mobile marketing campaigns including mobile messaging capabilities (the “Service”).
Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to this Agreement. You understand and agree that the Service is provided to you on an “AS-IS” basis and that Phynk assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access and subsequent usage may involve third party fees (such as Internet access to use the Service).
YOUR REGISTRATION OBLIGATIONS. In consideration of your use of the Service, you represent
that you are of legal age to form a binding contract and are not a person barred from receiving the Service
under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true,
accurate, current and complete information about yourself as prompted by the Service’s registration form
(such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data
to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate,
not current or incomplete, or Phynk has reasonable grounds to suspect that such information is untrue,
inaccurate, not current or incomplete, Phynk has the right to suspend or terminate your account and refuse
any and all current or future use of the Service (or any portion thereof).
Children under the age of 13 may not sign up for a Phynk account or use any Phynk services.
PAYMENT AND FEES. Payment by Credit Card / Paypal. You hereby authorize Phynk to charge your credit card as set forth in the Payment Method section of the Registration Form to a pay-as-you-go and/or monthly Services fee, and overage fees to Phynk at the rates set forth on phynk.com or agreed upon rate.
MEMBER ACCOUNT, PASSWORD AND SECURITY. You (the “MEMBER”) will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account designation and are fully responsible for all activities that occur under your password or account designation. You agree to (a) immediately notify Phynk of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Phynk cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
MEMBER CONDUCT AND MEMBER GUARANTEES.
A. You understand that all information, data, text, software, music, sound, photographs, graphics, audio, video, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Phynk, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. Phynk does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Phynk be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
Phynk is solely a facilitator of the message traffic and has no visibility into or control over individual Messages as they are transmitted through Phynk and has no responsibility or liability with respect to the content or timing of any individual Message. Except that Phynk may use programmatic means to filter (pre-screen) your messages and block your campaigns or account due to message keywords that Phynk has determined, in it’s sole description, may violate an applicable, rule, regulation, or law.
B. You agree to not use the Service to:
1. upload, post, text message, email, transmit or otherwise make available any illegal contests or gambling, unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
2. upload, post, text message, email, transmit or otherwise make available any adult Content or Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements, or which violates the intellectual property rights of a third party (“Rights”);
3. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
4. upload, post, text message, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any mobile telephone, mobile device, computer software or hardware or telecommunications equipment;
5. “stalk” or otherwise harass another; and/or
6. Using any equipment or software that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, in conjunction with your use of the Services;
7. Using any equipment or software that has the capacity to initiate messages without human intervention, in conjunction with your use of the Services;
8. Sending any calls to life-line services, such as hospitals, fire, police, 911 or utility- related telephone numbers;
9. Using strings of numbers as it is unlawful to engage two or more lines of a multi-line business;
10. Harvesting, or otherwise collecting information about others, without their consent;
11. Misleading others as to the identity of the sender of your messages, by creating a false identity, impersonating the identity of someone/something else or by providing contact details at do not belong to you;
12. Transmitting, associating or publishing any unlawful, racist, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;
13. Transmitting any material that may infringe upon the intellectual property rights of third parties including trademarks, copyrights or other rights of publicity;
14. Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or any other harmful/deleterious programs;
15. Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks;
16. Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means;
17. Abusing the fair use policy with regard to unlimited keywords—that is, registering many keywords without using them for weeks or months, as is determined to be abuse in the sole discretion of Phynk;
18. Interfering with another’s use and enjoyment of the Services or Phynk Sites; or
19. Engaging in any other activity that Phynk believes could subject it to criminal liability or civil penalty/judgment.
C. You acknowledge that Phynk may or may not pre-screen Content, but that Phynk and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, Phynk and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
D. You acknowledge, consent and agree that Phynk may access, preserve, and disclose your account informationand Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with any subpoena or other legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Phynk, its users and the public.
E. You guarantee that the subscribers in your account have granted you express consent to send them messages of the type that you intend to send them. If for any reason Phynk suspects that the subscribers have not given you express consent, it reserves the right to request a written explanation from you, the client, including the method of collecting the subscriber’s phone numbers and a guarantee signed by you that all the people on your subscriber list agreed to receive text messages from you of the type that you had sent. Phynk reserves the right to take any action it thinks appropriate in the case of non-compliance, including but not limited to cancellation of the account.
F. You agree that you will include clear opt-out/unsubscribe information on your messages when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages.
G. You agree to familiarize yourself with and abide by all applicable local, state,
national and international laws and regulations and are solely responsible for all acts or omissions that
occur under your account, including without limitation the content of the messages that you create and
initiate through the Phynk Services. Without limiting the foregoing, you agree to familiarize yourself with
the legalities of any messages transmitted through the Phynk Services by visiting the following websites:
– Federal Trade Commission, http://www.ftc.gov/
– Federal Communications Commission, http://www.fcc.gov/
H. You shall use Phynk’s service in compliance with all governing laws, regulations, and rules.
I. You shall schedule your messages responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, pictures or videos for inclusion in any outbound messages. If you are unfamiliar or unclear on the legalities of any message that you intend to initiate through the Services, you must consult with your attorney prior to your use of the Phynk Sites or Services.
J. You guarantee that you have all power and authority and have procured all rights and licenses necessary to use and text enable those Phone Numbers utilized for Phynk services without the consent of any third party. In the case of shared use Phone Numbers, you expressly represent that you are the Phone Number Owner.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE. Phynk does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant to Phynk the following worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service and elsewhere for the purpose for which such Content was submitted or made available and also for the purpose of providing and promoting the Service to which such Content was submitted or made available.
INDEMNITY. You agree to indemnify and hold Phynk, and its subsidiaries, affiliates, officers, agents, attorneys, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of this Agreement, your violation of any rights of another, or your violation of any law.
GENERAL PRACTICES REGARDING USE AND STORAGE. You acknowledge that Phynk may establish general practices and limits concerning use of the Service but that Phynk has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service.
MODIFICATIONS TO SERVICE. Phynk reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Phynk shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
TERMINATION. You agree that Phynk may, under certain circumstances and without prior notice, immediately terminate your Phynk account, any associated text message address and/or email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (g) your engagement in fraudulent, illegal or improper activities, (h) third party operator requirement, and/or (i) nonpayment of any fees owed by you in connection with the Services. You may terminate your access and use of the Service upon prior written notice to Phynk. In no event shall you be entitled to a refund of any fees paid to Phynk hereunder.
Phynk’S PROPRIETARY RIGHTS. Title, ownership rights and all intellectual property rights in and to the Services shall remain the sole and exclusive property of Phynk. Phynk retains all rights not expressly granted to you in this Agreement. You are prohibited from attempting, or knowingly permitting or encouraging others to attempt, to reverse engineer, decompile, disassemble, or otherwise attempt to determine source code or protocols from the Services except and only to the extent permissible by applicable law despite such prohibition. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose, any portion of the Service (including your Phynk I.D., account, account designation, password and other Phynk information), use of the Service, or access to the Service.
DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
A. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Phynk EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
B. Phynk MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED (VI) THAT THE INTERNET WILL BE AVAILABLE AND WILL PERFORM.
C. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Phynk OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY.
A. YOU EXPRESSLY UNDERSTAND AND AGREE THAT Phynk SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Phynk HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; OR (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
B. YOU EXPRESSLY UNDERSTAND AND AGREE THAT Phynk’s service providers disclaim all liability with regard Phynk’s customers, whether direct, indirect, incidental, consequential, punitive or otherwise, arising out of or related to the use of the services provided under this Agreement. You hereby release Phynk’s service providers from and against all claims, liability and damages arising out of or related to Company Customer’s use of the services provided under this Agreement. Company Customer will be solely responsible for any third party claims, damages and liability arising out of, resulting from or caused by Company Customer’s use of the Services provided under this Agreement including, without limitation, any claims, damages and liability arising out of, resulting from or caused by any Message or Content generated by Company Customer.
EXCLUSIONS AND LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 18 AND 19 MAY NOT APPLY TO YOU.
NOTICE. Phynk may provide you with notices, including those regarding changes to the Agreement, by either text message, e-mail, regular mail, or postings on the Service.
TRADEMARK INFORMATION. The trademarks, service marks, logos and product and service names of Phynk are trademarks of Phynk LLC (the “Phynk Marks”). You agree not to display or use in any manner, the Phynk Marks without Phynk’s express prior written consent.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT. Phynk respects the intellectual property of others, and we ask our users to do the same. Phynk may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to Phynk’ Copyright Agent:
Notice of claims of copyright or other intellectual property infringement should be addressed to: Phynk Legal, 438 Broadway, Costa Mesa, CA 92627. You may also email us: firstname.lastname@example.org.
Choice of Law and Forum. This Agreement and the relationship between you and Phynk shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Phynk agree to submit to the personal and exclusive jurisdiction of the courts located within Orange County, California.
Waiver and Severability of Terms.
The failure of Phynk to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
Non-Transferability. You agree that your Phynk account is non-transferable, and this Agreement may not be assigned by you without Phynk’s prior written consent.
Entire Agreement. This Agreement constitutes the entire agreement between you and Phynk and governs your use of the Service, superseding any prior agreements between you and Phynk with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services from Phynk.
Updated October 21, 2019