FIZZCARD, INC. TERMS OF USE
Introduction
Purpose
The mission of Fizzcard is to help people consolidate their contact information from all their different networks and databases into one mobile application that is actionable from the mobile device. Fizzcard uses algorithms and processes to keep that information accurate and up-to-date.
Duration and Termination
The license for use of the Services provided herein is effective until terminated. You may terminate your license at any time by ceasing to use the Services altogether, including removing the Applications from your devices and terminating your account, as applicable. This license will terminate upon conditions set forth elsewhere within this Agreement or if you fail to comply with any term or condition of this Agreement. In such event, no notice shall be required by Fizzcard to effect such termination. Upon termination of this Agreement, you agree to cease using the Services and remove any Applications from your devices, together with all backup copies, modifications, printed or written materials, and merged portions in any form.
Your Rights and Obligations
Free Accounts
On the condition that you comply with all your obligations under this Agreement, including, but not limited to, the User Code of Conduct listed below, we grant you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to utilize the Services, through a generally available web browser, mobile device or application (but not through scraping, spidering, crawling or other technology or software used to access data without the express written consent of Fizzcard or its Users), to view information and use the Services that we provide on Fizzcard or our webpages and in accordance with this Agreement. Any other use contrary to our mission and purpose is strictly prohibited and a violation of this Agreement. We reserve all rights not expressly granted in this Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in our Applications, Sites, and Services, and all related items, including any and all copies made thereof.
Additional Terms for Premium Services
Fizzcard may offer access to various features, functionality, and services which are in addition to the features and functionality available with a “free” account. Fizzcard may charge fees for such access (“Premium Services”) either directly or through an App store such as, but not limited to, The Apple App Store or Google App store.
Limited Rights for use of the Business Contact Database: Subscribers of certain Premium Services and others may be granted a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access, view, interact with and use publicly available Business Contact Database information and other related and Premium Services as set forth and in accordance with this Agreement. See the Fizzcard Privacy Policy for more detail on rights and limitations on use of the Business Contact Database.
Eligibility
To be eligible to use the Services, you must meet the following criteria and represent and warrant that you: (1) are 18 years of age or older; (2) are not currently restricted from the Services, or not otherwise prohibited from having a Fizzcard account; (3) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (4) will not violate any rights of Fizzcard, including intellectual property rights such as copyright or trademark rights; and (5) agree to provide at your cost all equipment, software, and internet access necessary to use the Services.
Privacy
Users and Visitors: You acknowledge that you have read our Privacy Policy prior to becoming a User. Our Privacy Policy is incorporated by reference into this Agreement and governs our treatment of any information, including Personally Identifiable Information you submit to us.
User-Generated Materials
Our Users may choose to submit post, upload and/or contribute content as part of, to or through the Services (“User-generated Materials”). You represent that you have the right to contribute any User-Generated Materials that you contribute, and that such User-Generated Materials, or its use by us as contemplated by this Agreement, does not violate this Agreement, applicable law, or the intellectual property rights of others. You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any User-Generated Materials that you contribute in connection with our Services. This license lasts until you terminate your account or stop using our Services, except in the case of User-Generated Materials that you have published, made public and/or share with others, including content, information or data contributed to the Business Contact Database. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User-Generated Materials that you contribute, except that, where applicable under, you agree to waive your right to be identified as the author of any User-Generated Materials and your right to object to derogatory treatment of such User-Generated Materials.
To the extent Users elect or choose to submit address book contact data or related company information (including portions thereof and related metacontent) to us for processing and inclusion in their Personal Address Book and our Business Contact Database, including related metacontent or data, you hereby grant us a royalty-free, worldwide, irrevocable, perpetual license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, display, create derivative works from, process, analyze, aggregate, and incorporate into the Services any submitted information (including any portions thereof submitted by you) and to distribute such information through the Services and otherwise at our discretion, subject to the limitation set forth or applicable herein.
We reserve the right to remove or disable access to any User-Generated Materials for any or no reason, including but not limited to, User-generated Material that, in our sole discretion, violates these Agreements. We may take these actions without prior notification to you. Removal or disabling of access to User-Generated Materials shall be at our sole discretion, and we do not promise to remove or disable access to any specific User-Generated Materials.
User Code of Conduct
Any fraudulent, abusive, or otherwise illegal activity, or violation of this User Code of Conduct is grounds for termination of your account at Fizzcard’s sole discretion, and you may be reported to appropriate authorities. You shall not do any of the following:
1. Be dishonest or act in an unprofessional manner by posting inappropriate, inaccurate, or objectionable content;
2. Publish inaccurate information in the designated fields on the profile form
3. Create a user profile for anyone other than yourself as a natural person;
4. Create a false identity or otherwise misrepresents your identity;
5. Harass, abuse or harm another person/User;
6. Upload a profile image that is not yours;
7. Use or attempt to use another’s account without authorization;
8. Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide this Site or the Services, or any part thereof;
9. Adapt, modify or create derivative works based on the Services or any underlying technology;
10. Remove any copyright, trademark or other proprietary rights notices contained in or on this Site;
10. Collect, use, copy, sell, distribute or transfer any information, including, but not limited to, Personally Identifiable Information obtained from the 11. Site or Services except as expressly permitted in this Agreement or as the owner of such information may expressly permit;
12. Use manual or automated software, devices, scripts, bots, robots, other means or processes to access, “scrape,” “crawl” or “spider” the Site or to add or download contacts;
13. Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Site; and
14. Engage in any action that directly or indirectly interferes with the proper working of the Site or places an unreasonable load on the Site including, but not limited to, any attempts to access or hack our servers or network.
15. Use any data associated with Fizzcard databases in violation of any local privacy restrictions, for example CAN-SPAM, CASL, or GDPR
Submissions – Feedback and Problem Reports
1. Certain parts of the Services may ask for written suggestions or problem reports such as using our feedback form (“Submissions”).
a. The Submissions shall be deemed the property of Fizzcard. Fizzcard shall exclusively own all now known or hereafter existing rights to the Submissions throughout the universe in perpetuity and shall be entitled to use the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions. In any event, any Submissions you send to Fizzcard will not be treated as confidential and Fizzcard shall not be liable for any disclosure of the Submissions.
Export Control
Your use of the Services is subject to export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department’s Office of Foreign Assets Control. You shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end-user without obtaining the required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S.-origin products, including services or software.
Indemnification
You indemnify us and hold us harmless for all damages, losses and costs (including, but not limited to, reasonable attorneys’ fees and costs) related to all third party claims, charges, and investigations, caused by (1) your failure to comply with this Agreement, including, without limitation, that anything you submit or contribute violate the rights of any third party or applicable laws; (2) any content you submit to or through the Sites, Applications or through use of the Services; and (3) any activity in which you engage on or through the Services.
You agree to indemnify and hold Fizzcard, and its subsidiaries, affiliates, officers, agents, 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, data, or information you submit, contribute, post to or transmit to or through the Services and your use of or connection to same, your violation of the Terms of Use, or your violation of any rights of another person or entity.
Link Sites
Fizzcard may provide links to other sites that we feel are relevant and interesting to our users (“Link Sites”). Fizzcard is not responsible for the content on the Link Sites and is not responsible for the accuracy of the information and intellectual property notices therein. The Fizzcard Privacy Policy does not govern any personally identifiable or other information collected by or disclosed to the third party. Some of these Link Sites may provide you with opportunities to purchase products (“Products”). We do not endorse any of the Products nor do we make any representations or warranties in connection with the Products.
Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN A WRITTEN AGREEMENT BETWEEN YOU AND FIZZCARD, THE SITES, APPLICATIONS, INCLUDING MOBILE APPLICATIONS, SERVICES, MATERIALS, TECHNOLOGY, AND ANY INFORMATION PROVIDED THEREIN ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FIZZCARD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, TITLE, QUIET ENJOYMENT OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, FIZZCARD DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OR AVAILABLE ON, IN OR THROUGH THESITES, APPLICATIONS, INCLUDING MOBILE APPLICATIONS, OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITES, APPLICATIONS, INCLUDING MOBILE APPLICATIONS, OR SERVICES OR THE SERVERS THAT MAKE SUCH AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FIZZCARD DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF SITES, APPLICATIONS, INCLUDING MOBILE APPLICATIONS, SERVICES, THE MATERIALS, TECHNOLOGY, USER-GENERATED MATERIALS, DATA OR INFORMATION ON OR AVAILABLE THROUGH THE SITES, APPLICATIONS, INCLUDING MOBILE APPLICATIONS, OR SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ALTHOUGH FIZZCARDMAKES EFFORTS TO PREVENT PERSONALLY IDENTIFIABLE INFORMATION FROM BEING DISCLOSED, FIZZCARD MAKES NO WARRANTY FOR OTHER USERS WHO SUBMIT CONTACT INFORMATION FOR YOU AND OTHERS.AS PART OF THE CONTACT SHARING ASPECT OF OUR APPLICATIONS, SITES AND SERVICES,WE MAY PROVIDE PERSONAL PROFILE INFORMATION FOR YOU WHICH MAY BE VIEWABLE TO OTHER USERS OR MEMBERS WITHOUT YOUR CONSENT. YOU (AND NOT FIZZCARD) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. WITHOUT LIMITATION OF THE FOREGOING, YOU ACKNOWLEDGE THAT AS A SERVICE TO USERS OF THE SITES, WE INCLUDE LINKS TO OTHER WEBSITES ON THE WORLD WIDE WEB PORTION OF THE INTERNET AND THAT FIZZCARD HAS NO CONTROL OVER, AND MAKES NO REPRESENTATIONS OF ANY KIND WHATSOEVER, REGARDING THE CONTENT OR APPROPRIATENESS OF CONTENT ON SUCH WEBSITES AND YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO SUCH WEBSITES.
Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL FIZZCARD BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE CONTENT, DATA, INFORMATION, MATERIALS, APPLICATIONS, SITES, APPLICATIONS, INCLUDING MOBILE APPLICATIONS, SERVICES, OR ANY OTHER WEBSITE, EVEN IF FIZZCARD OR A FIZZCARD AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM FIZZCARD OR FROM OR THROUGH FIZZCARD SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF USE. IN NO EVENT SHALL FIZZCARD’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE) EXCEED TEN DOLLARS (US$10.00).
Misuse of the Site or Services
Fizzcard along with its respective partners and affiliates reserve the right to investigate suspected violations of this Agreement, and may seek to gather information from the user who is suspected of violating the terms of this Agreement, and from any other user. We will collect and use any such information in accordance with the Fizzcard Privacy Policy. We may suspend any users whose conduct is under investigation and may remove such material from its servers as it deems appropriate and without notice.
In its sole discretion, Fizzcard may restrict, suspend or terminate the account of any User who abuses or misuses the Services. Misuse includes, without limitation, inviting other Users with whom you do not know to connect; abusing the contact connection, and other messaging services; creating multiple or false accounts; using the Site or Services commercially without Fizzcard authorization, infringing any intellectual property rights, violating any aspect of the Code of Conduct, or any other behavior that Fizzcard, in its sole discretion, deems inappropriate.. We may provide Personally Identifiable Information in response to legal process, for example, in response to a court order or a subpoena. We also may disclose such information in response to a law enforcement agency’s request. BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD HARMLESS FIZZCARD, ITS RESPECTIVE PARTNERS AND AFFILIATES FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY FIZZCARD DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER FIZZCARD OR LAW ENFORCEMENT AUTHORITIES.
Effect of Termination
Upon the termination, you may lose access to the Services.
General Terms
Administrative Information/Jurisdictional Issues
The Sites, Applications, including Mobile Applications, and Services are controlled and operated by Fizzcard. Fizzcard makes no representation that content, data, information or other similar materials made available in, on or through our Sites, Applications, including Mobile Applications, and Services are appropriate or available for use in your location. Those who choose to access this Site or Services from any location do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
Severability
If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way.
Entire Agreement
You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and Fizzcard regarding the Site and Services and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services, third-party content or third party software.
No informal waivers
Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the Agreement, no representations, statements, consents, waivers or other acts or omissions by us or any affiliate shall be deemed legally binding on us or any affiliate, unless documented in a physical writing hand signed by a duly appointed officer of Fizzcard.
No Injunctive Relief
In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Site or Services, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Service
Assignment
In no event shall you assign or delegate any rights or obligations under the Agreement to any party. Any purported assignment and delegation shall be ineffective. Fizzcard may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute any third party that assumes our rights and obligations under this Agreement.
Governing Law and Venue
DISPUTE RESOLUTION; BINDING ARBITRATION AND NO CLASS RELIEF
Except with regard to the enforceability of the arbitration agreement contained herein, which shall be governed by the Federal Arbitration Act. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the Commonwealth of Puerto Rico, without regard to conflict of law principles.
In the unlikely event an issue arises, except in relation to intellectual property rights as set forth below, we each agree to resolve those disputes through binding arbitration with no class relief instead of in courts. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Any arbitration under this Agreement will take place on an individual basis; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
Failure by Fizzcard to enforce any provision(s) of the Terms shall not be construed as a waiver of any provision or right. If any provision of the Terms is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect. The User may not assign, transfer, or otherwise convey any rights granted hereunder; provided that, Fizzcard may assign any of the foregoing without notice or prior written consent. The Terms shall inure to the benefit of Fizzcard, its successors and assignees. The Terms, the Privacy Policy, and any other legal notices published by Fizzcard on the Site, shall constitute the entire agreement between you and Fizzcard regarding use of the Site.
Notwithstanding the foregoing, disputes enforcing, protecting, or concerning the validity of any of your or Fizzcard’s intellectual property rights (or the intellectual property rights of any of Fizzcard’s licensors) are not covered by this agreement to arbitrate.
If the waiver of the right to participate in a class action set forth above is found to be illegal or unenforceable for any reason whether by judicial, legislative, or other action, than the entirety of the agreement to arbitrate contained above is null and void. In that instance, you and Fizzcard agree to waive your right to a jury trial. You and Fizzcard further agree that any dispute, claim or controversy arising out of or relating to the Fizzcard Services or your use of the Fizzcard Services, including the Fizzcard websites and mobile applications, and these Terms of Use shall be brought in the appropriate state or federal court located in the Commonwealth of Puerto Rico; and that we both irrevocably consent to the exclusive jurisdiction and venue of the Commonwealth of Puerto Rico.
Notification of Copyright Infringement
Fizzcard will investigate notices of copyright infringement and take appropriate actions. If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on this Site or on sites linked to from this Site, please notify Fizzcard. Pursuant to Title 17, United States Code, Section 512(c)(3), a notification of claimed infringement must be a written communication addressed to a Fizzcard designated agent as set forth below, and must include substantially all of the following:
1. a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed;
2. a description of the copyrighted work or works that you claim have been infringed (“infringed work”) and identification of what material in such work(s) is claimed to be infringing
3. a description of where the material that you claim is infringing is located on our Site(s);
4. information sufficient to permit Fizzcard to contact you, such as your physical address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the use of the material identified in your Notice in the manner complained of is not authorized by the copyright owner, its agent, or the law;
6. a statement by you that the information in your Notice is accurate and, under penalty of perjury that you are the copyright owner or authorized to act on the copyright owner’s behalf.
For notice of claims of copyright infringement, Fizzcard can be reached by contacting the Company.
Trademarks
Fizzcard and the Fizzcard logo and other marks indicated in our Services are trademarks of Fizzcard or other related companies. Fizzcard is a registered mark with the United States Patent and Trademark Office.
Our trademarks and trade dress may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Fizzcard. All other trademarks not owned by Fizzcard or any of its related companies that appear on this Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Fizzcard.
Copyright
All content and compilations of content included on the Services and Sites, such as text, graphics, logos, button icons, images, audio clips, digital downloads and mobile applications, are the property of Fizzcard, Inc., and is protected by United States and international copyright laws.998
