Last Updated: June 4, 2020
PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS AND USE OF THE PHAROS JOURNAL SERVICE (DEFINED BELOW). WHERE PERMITTED BY APPLICABLE LAW, THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN IN A CLASS ACTION FORMAT.
Introduction
This User Terms of Use (the “Terms”) is a legal agreement between you (“you” and “your”) and Pharos Journal, LLC (referred to herein as “PHAROS”, but at times using “we”, “us” or “our”), that governs your limited, non-exclusive, terminable right to receive and send communications, namely text messages through the PHAROS messaging platform, including, without limitation, your use of our website, applications and related services (collectively, the “Service”). By using the Service, you agree to be bound by the terms and conditions set forth in these Terms. Therefore, do not use the Service if you do not agree. By using the Service, you acknowledge and accept the Service’s Privacy Policy and consent to the collection and use of your data in accordance with our Privacy Policy.
The business realities associated with operating the Service are such that, without the limitations that are set forth in these Terms, such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and the arbitration of certain disputes – we would not make the Service available to you.
You must be at least thirteen (13) years of age or older to access and use the Service. If you are under the age of majority in your state or jurisdiction of residence, you may use the Service only with involvement of a parent or guardian who agrees to these Terms, both on their and your behalf, and agrees to be responsible for your use. In addition to being the minimum age to use our Services, if you are not old enough to have authority to agree to these Terms in your state or country, your parent or other legal guardian must agree to these Terms on your behalf.
Services Offered by PHAROS
The Service provides you with the ability send and receive messages from PHAROS and our customers that you sign up to communicate with (these include musicians, athletes, celebrities, influencers, actors, their agents, and others) (collectively our “Customers”). Our Customers use a phone number provided by PHAROS (the “PHAROS Phone Number”) to facilitate your communications with Customers. Messages sent by Customers may include journals, personal messages, personal photos or videos, offers, advertisements, contests, sweepstakes and promotions, images, videos, files, links and other content sent by our Customers. The messages you receive from Customer are not controlled by PHAROS but are sent directly by our Customers.
PHAROS encourages the individual with whom you have signed up to receive messages from directly communicate with you when they use the Service. However, from time to time a Customer may allow a representative to send you messages on their behalf. For instance, an agent (or friend) of a Customer may send a message through the Customer’s account. You acknowledge that a message sent by a Customer may actually be sent on his/her behalf by a public relations or other social media representative. You understand and acknowledge that conversations you engage in when using the Service are not private conversations but are stored and available to be viewed by others. Additionally messages sent by Customers may often times be promotional and advertising communications and sent by Customer on behalf of their sponsors and advertisers. If you don’t like the messages you receive from a Customer, you always have the right to opt-out from receiving further messages from that Customer as explained in more detail below.
You agree that PHAROS has no responsibility or liability for the messages, voicemails, content, conversations, interactions and content exchanged through the Service by our Customers. PHAROS and mobile carriers are not liable for delayed or undelivered messages. We and our Customers reserve the right to suspend, block or terminate your ability to access the Service (including messages to and from a particular Customer), at any time, at our sole discretion, and without prior warning if your activity is believed to violate any term in these Terms or applicable law. Violation of applicable anti-spam laws, rules and regulations may also result in third-party legal actions against you. PHAROS also reserves the right to terminate your access to the Service at any time and immediately if we believe that your conduct is harmful to the interests of PHAROS or any Customer or if we decide to terminate the Service.
To use the Service, you must have cellular phone service and the ability to receive SMS and MMS text messages from your Device (defined below). You further consent to receive telephone calls, voicemails and emails from Customers via the Service from time to time. You also agree to receive emails and/or messages from PHAROS regarding changes to our Terms and Privacy Policy, Service outages, special news and new features.
The Service may rely on your third-party cellular service, any limitations in that service will also limit the manner in which you can use the Service, including, but not limited to, receiving photos, videos, and other data.
You consent to receive messages twenty-four (24) hours a day, three hundred sixty-five (365) days of the year, including on weekends and holidays. If you are under the applicable age of majority in your state/jurisdiction of residence, you acknowledge that your parents/guardians have consented to you receiving messages, and you agree that your use of the Service is at their discretion. Until you are the legal age of majority in your state/jurisdiction of residence, your parents/guardians may ask us to modify, deny access to, or terminate your access to the Service and we may do so at their request at any time, for any reason, without notice or liability.
In some instances, both these Terms and separate guidelines, rules, or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Service or to a service or product offered via the Service (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
Table of Contents
Full Details of the Terms of Use
PHAROS maintains a zero tolerance policy regarding the delivery of Spam or unwanted commercial messages using the Service. Notwithstanding anything else in these Terms, neither you nor our Customers will be permitted to send, cause to be sent, or facilitate the sending of Spam using the Service. If you send Spam or that we believe that you are facilitating the sending of Spam, your account may be suspended and terminated, and PHAROS may participate in your prosecution. “Spam” is defined as any message the purpose of which is to promote the sale of goods or services or participation in commercial activity without the prior consent of the recipient, as required under the applicable laws. This includes content which violates the terms and conditions of these Terms, including, without limitation, Section 5 below.
(i) General. PHAROS may now or in the future offer users of the Service the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit messages, avatars, text, illustrations, emojis, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User Content”). PHAROS may allow you to do this through text or forums, blogs, message boards, contact us tools, email, and other communications functionality. Subject to the license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User Content and you remain ultimately responsible for it.
(ii) Non-Confidentiality of Your User Content. Except as otherwise described in the Service’s posted Privacy Policy or any Additional Terms, you agree that: (a) your User Content will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like; and (b) PHAROS does not assume any obligation of any kind to you or any third party with respect to your User Content. Upon PHAROS’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms. You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User Content may not be secure, and you will consider this before submitting any User Content and do so at your own risk. In your communications with PHAROS or Customers, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed User Content and licensed to us as set forth below. In addition, PHAROS retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. PHAROS’s receipt of your Unsolicited Ideas and Materials is not an admission by PHAROS of their novelty, priority, or originality, and it does not impair PHAROS’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
(iii) License to PHAROS to Your User Content. Except as otherwise described in any applicable Additional Terms (such as a contest official rules), which specifically govern the submission of your User Content, you grant to PHAROS and Customers the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, translate, publish in searchable format, and remove such User Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to PHAROS and Customers to your User Content, you also grant to PHAROS and Customers, to the extent permitted by applicable law, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 5(A)(iii). In the event PHAROS shares your User Content, we may take steps as we feel appropriate to limit revealing sensitive or personal exchanges with Customers. PHAROS is sensitive to protecting private and intimate User Content shared on the Service.
(iv) Exclusive Right to Manage Our Service. PHAROS may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User Content, and PHAROS may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User Content without notice or any liability to you or any third party in connection with our operation of User Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in the Rules (defined in Section 5(B). Such User Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User Content on the Service or elsewhere.
(v) Representations and Warranties Related to Your User Content. Each time you submit any User Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User Content you submit, and that, as to that User Content: (a) you are the sole author and owner of the intellectual property and other rights to the User Content, or you have a lawful right to submit the User Content and grant PHAROS the rights to it that you are granting by these Terms and any Additional Terms, all without any PHAROS obligation to obtain consent of any third party and without creating any obligation or liability of PHAROS; (b) the User Content is accurate; (c) the User Content does not and, as to PHAROS’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User Content will not violate these Terms (including the Rules) or any Additional Terms, or cause injury or harm to any person.
(vi) Enforcement. PHAROS has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at PHAROS’s cost and expense, to which you hereby consent and irrevocably appoint PHAROS as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
(i) Nature of Rules. Your participation on the Service is subject to all of the Terms, including these Rules:
If you violate these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion. However, we are not obligated to take any action not required by law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User Content in question being removed from the Service.
(ii) Your Interactions With Other Users; Disputes. You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users or Customers. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other activities related to the Service.
(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
(iv) your full name, address, telephone number and email address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
PHAROS will only respond to DMCA Notices that it receives by mail or email at the addresses below:
By Mail: Pharos Journal, LLC, Attn: DMCA Agent, 2602 N 58th Place, Scottsdale, AZ 85257
By email: [email protected]
It is often difficult to determine if your copyright has been infringed. PHAROS may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and PHAROS may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting PHAROS’s other rights, PHAROS may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by PHAROS.
(i) a legend or subject line that says: “DMCA Counter-Notification”;
(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL or page of the Service from which the material was removed or access to it disabled);
(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) your full name, address, telephone number, e-mail address, and the username of your account;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California, and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice to the addresses set forth above that includes all of the following:
(a) a legend or subject line that says: “Intellectual Property Infringement Notice”;
(b) a description of the intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
(d) your full name, address, telephone number and email address;
(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;
(f) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and
(g) your electronic or physical signature.
We will act on such notices in our sole discretion. Any user of the Service that fails to respond satisfactorily to PHAROS with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
You use the Services solely at your own risk and subject to all applicable local, state, provincial/territorial, national, and international laws and regulations. While PHAROS has endeavored to create a secure and reliable Service, please be advised that the confidentiality of any communication or material transmitted to/from a Service over the internet cannot be guaranteed. Accordingly, PHAROS is not responsible for the security of any information transmitted via the Service, the accuracy of the information contained on the Service, or for the consequences of any reliance on such information. PHAROS shall have no liability for interruptions or omissions in Internet, network or hosting services. You assume the sole and complete risk of using the Service.
Any Content downloaded or otherwise obtained through the use of the Service is done at your own discretion and risk. You will be solely responsible for any damage to your Device, or loss of data or virus that results from the download of any such material.
If you reside in the U.S. (and as applicable to U.S. residents), certain portions of this Section 10 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and PHAROS agree that we intend that this Section 10 satisfies the “writing” requirement of the Federal Arbitration Act. If you are a resident of Canada, and are not an individual resident in Quebec (where this Section does not apply in a manner prohibited by the Quebec Consumer Protection Act), this Section 10 applies to the maximum extent permitted by the applicable law. PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.
Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of PHAROS consent to in writing. If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in Los Angeles County, California. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require PHAROS to pay a greater portion or all of such fees and costs in order for this Section 10 to be enforceable, then PHAROS will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms or the Service. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.
TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, PHAROS, its parent company and subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “PHAROS Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the Service (including the Content, the messages sent/received through the Service and the User Content);
(b) the functions, features, or any other elements on, or made accessible through, the Service;
(c) any products, services, locations, or instructions offered or referenced at or linked through the Service;
(d) security associated with the transmission of your User Content transmitted to PHAROS via the Service;
(e) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
(f) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;
(g) whether any defects to, or errors on, the Service will be repaired or corrected;
(h) whether your access to the Service will be uninterrupted;
(i) whether the Service will be available at any particular time or location;
(j) whether the Service, or your use thereof, constitutes an automatic telephone dialing system (“ATDS”), “advertising,” “telemarketing,” or “solicitations,” as such terms are used in the TCPA or by other applicable related regulations or law;
(k) whether any text/SMS/MMS messages sent using the Service will be actually delivered to and received by the intended recipients on their mobile devices; and
(l) whether your use of the Service is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A PHAROS PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PHAROS PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY PHAROS PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
(a) the Service (including the Content and the User Content and any messages you receive on or through the Service), including, without limitation, lost communications, errors, mistakes, typos, communication failures, etc.;
(b) your use of or inability to use the Service, or the performance of the Service;
(c) any action taken in connection with an investigation by PHAROS Parties or law enforcement authorities regarding your access to or use of the Service;
(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(e) any errors or omissions in the Service’s technical operation, including delivery of messages;
(f) the delivery and/or deliverability rates of any text/SMS/MMS messages that might be sent using the Service; or
(g) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if PHAROS Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PHAROS PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID PHAROS TO ACCESS THE SERVICE OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.
These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SERVICE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED EITHER IN WHOLE OR IN PART AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS.
Therefore, you should review the posted terms of use and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission). The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Service will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page and the email you associated with your account for notices, and you agree that the means set forth in these Terms are all reasonable manners of providing you with notice. You can reject any new, revised or Additional Terms by discontinuing use of the Service and related services.
Actual or attempted unauthorized use of any of the Service may result in criminal and/or civil prosecution. For your protection, we reserve the right to view, monitor, and record activity on the Service without notice or further permission from you, to the fullest extent permitted by applicable law, and in our sole discretion, provide your data and activity to law enforcement. This right extends to our review of message content and details pertaining to claimed violations of our Spam Policy. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the Service.
You will use the Service in full compliance with all applicable laws and regulations with regard to your use of the Service, including, without limitation, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, the Canadian Anti-Spam Legislation, the Unsolicited Telecommunications Rules, individual state/provincial/territorial laws, and all other laws and regulations concerning privacy, telemarketing, Internet marketing and the transmission of electronic communications such as SMS and MMS messages. You will not use the Service in violation of any service agreement that you have with a third-party telecommunications provider.
You agree to, and you hereby, defend, indemnify, and hold the PHAROS Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any PHAROS Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) PHAROS Parties’ use of the information that you submit to us (including your User Content) and (viii) for any privacy, tort or other claims, including claims under the Federal Telephone Consumer Protection Act or its state law equivalent, relating to your voluntary provision of a telephone number that is not owned by you and/or your failure to notify PHAROS of any changes in your contact information, including telephone number. You agree to indemnify, defend and hold us harmless from and against any and all such claims, losses, liability, costs and expenses (including reasonable attorneys’ fees) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by PHAROS Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, PHAROS Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. PHAROS Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a PHAROS Party.