Terms of Service
The following terms of service (“Terms”) constitute a binding legal agreement (“Agreement”) between Phoji, L.L.C., a Minnesota limited liability , the owner and operator of the site phojiapp.com and the Phoji software (collectively, “Phoji”), and all users of Phoji (each being a “User”).
By accessing, downloading, installing Phoji, User represents to Phoji that User is competent to enter into a contract and User has read this Agreement, understands it and agrees to be bound by its Terms. Please review the Agreement carefully before accessing, downloading and installing Phoji. If you choose not to agree with any of the Terms, you may not use Phoji.
1. Phoji Service.
Phoji is a mobile phone communication service for the transmission of messages. Phoji will give User the ability to integrate photo and media inline and within a single message.
User acknowledges and agrees that User will have to provide Phoji with User’s username, a name, mobile phone number and email address. User expressly acknowledges and agrees that Phoji may, with the consent of User, periodically access User’s contact list and/or address book on User’s mobile device to find other users of Phoji. In that regard, Phoji may upload the entire contents of a User’s contact list and/or address book on User’s mobile device. Information so uploaded will not be retained by Phoji except for the purpose of finding other users of Phoji.
User agrees to notify Phoji immediately of any breach of security or unauthorized use of User’s mobile phone. Phoji shall not be liable for User’s losses caused by any unauthorized use of User’s account, User shall be liable for the losses of Phoji or others due to any such unauthorized use.
2. Third Party Terms.
User agrees to comply with any third party terms and conditions and privacy policies which may be applicable to the use of Phoji. Phoji shall not be responsible for violation and infringement of any third party right, terms and conditions in connection with access, download or installation of Phoji by User.
5. Representations of User.
User represents and warrants that: (i) User has the authority and capacity to enter and bind User to this Agreement; (ii) User’s use of Phoji will be solely for purposes that are permitted by this Agreement; (iii) User will provide accurate information about User’s mobile phone number and email address, (iv) User’s use of Phoji will comply with all applicable local, state, national or international laws and will not violate any law, regulation, or contractual obligations, and further that (v) User will not misuse Phoji. User acknowledges and understands that misuse of Phoji includes, but is not limited to, using Phoji in any manner that (a) is fraudulent, unlawful or contains or promotes defamatory or illegal information and activities, images, materials or descriptions; (b) defames, harasses, stalks, threatens or otherwise violates the legal rights of others or is invasive of another’s privacy rights; (c) that is vulgar, obscene, offensive, or contains pornography or nudity or otherwise objectionable; or (d) sends or stores material containing software viruses, worms, or other harmful computer code, files, scripts or programs. User will not impersonate any person or entity, or falsely state or otherwise misrepresent User, User’s age or User’s affiliation with any person or entity.
User shall be solely responsible for all content that User uploads, transmits, shares or displays through Phoji (collectively the “Content”) including but not limited to any photos, videos, messages, information, text and third party links. User shall be solely responsible and assume all risks for any consequences of uploading, posting, transfer or disclosure of the Content. User understands and agrees that Phoji may delete or remove (without notice) any Content in its sole discretion, for any reason or no reason including any Content that in the sole judgment of Phoji violates the Terms of this Agreement. Phoji does not assert any ownership over the Content and, subject to the rights granted to Phoji in this Agreement, User retains full ownership of all of User’s Content and proprietary rights associated with the Content.
7. Modifications to Phoji.
Phoji reserves the right at any time and from time to time to interrupt, restrict (without cause and without notice to User), modify or discontinue, temporarily or permanently, Phoji (or any part thereof) with or without any notice. User agrees that Phoji shall not be liable to User or to any third party for any modification, suspension or discontinuance of Phoji. Phoji reserves the right to send User periodic communications for the purpose of sharing new updates with User.
User acknowledges and agrees that Phoji and all trademarks, service marks and trade names and other intellectual property rights associated therewith are, and shall remain, the property of Phoji and its licensors, as applicable. All content related to Phoji included on the phojiapp.com and embedded in Phoji, including any text, graphics, logos and software, is the exclusive property of Phoji or its licensors and is protected by applicable laws. All software used on the Phoji site is the property of Phoji or its software suppliers and protected by applicable laws.
9. Disclaimer of Warranties.
USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, USER’S USE OF PHOJI IS AT USER’S SOLE RISK AND DISCRETION. PHOJI IS BEING MADE AVAILABLE “TO USER AS-IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” USER BEARS THE RISK OF USING IT. PHOJI GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS UNDER OR IN RELATION TO PHOJI. USER SHALL BE LIABLE FOR ANY CONSEQUENCES WHATSOEVER RESULTING FROM ITS USE OF PHOJI AND FOR ANY AND ALL TRANSMISSIONS TRANSMITTED BY USER, OR TRANSMITTED AT USER’S REQUEST, TO OR THROUGH PHOJI. TO THE EXTENT NOT PROHIBITED BY LAW, USER CAN RECOVER FROM PHOJI ONLY DIRECT DAMAGES UP TO THE AMOUNT USER PAID FOR PHOJI. PHOJI MAKES NO WARRANTY AGAINST INTERFERENCE OF USER’S ENJOYMENT OF PHOJI AND RELATED SERVICES; FOR LOSSES OR DAMAGES INCLUDING ANY PERSONAL INJURY ARISING FROM OR IN ANY WAY RELATED TO USER’S ACCESS OR USE OF PHOJI, USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA PHOJI OR FOLLOWING A FAILURE, SUSPENSION OR WITHDRAWAL OF ALL OR PART OF PHOJI AT ANY TIME; ANY BUGS, VIRUSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR APPLICATION OR RELATED SERVICES, THAT PHOJI WILL BE FUNCTIONAL, UNINTERRUPTED, ERROR-FREE OR BUG-FREE OR MEET USER’S REQUIREMENTS; REGARDING THE SECURITY, RELIABILITY OR TIMELINESS OF PHOJI; THAT ANY ERRORS, BUGS OR FAILURES IN PHOJI WILL BE CORRECTED. ACCORDINGLY, USER EXPRESSLY AGREES THAT USE OF PHOJI IS PURELY VOLUNTARY ON USER’S PART, AT USER’S OWN RISK AND THEREFORE AGREES TO BEAR ANY AND ALL RISK WHATSOEVER AND/OR HOWSOEVER CAUSED. ANY CONTENT OR MATERIAL DOWNLOADED THROUGH USER’S USE OF PHOJI IS AT USER’S OWN DISCRETION AND RISK AND USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA OCCURRING ON USER’S DEVICE OR ANY OTHER LOSS OR DAMAGES OF ANY KIND RESULTING FROM THE DOWNLOAD AND USE OF PHOJI. NO ADVICE, COURSE OF CONDUCT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM PHOJI OR ANY PARTY OR THROUGH PHOJI SHALL CREATE ANY WARRANTY UNLESS EXPRESSLY STATED IN THIS AGREEMENT. PHOJI SHALL NOT BE LIABLE FOR THE FOLLOWING: DELAY OR ERRORS IN TRANSMISSION AND/OR STORAGE OF INFORMATION TO OR THROUGH PHOJI THAT MIGHT OCCUR FROM TIME TO TIME; INTRUSION, DISTORTION, LOSS OR FORGERY OF DATA DUE TO ACT OF ANY THIRD PARTY; FAILURE OF ANY SOFTWARE AND/OR HARDWARE OR TELECOMMUNICATION SERVICE PROVIDER(S) USED BY PHOJI OR ANY OTHER ACT BEYOND PHOJI’S REASONABLE CONTROL.
10. Limitation of Liability.
To the maximum extent permitted by applicable law, under no circumstance shall Phoji, its directors, governors, employees or agents be liable to User or any third person for personal injury, or any special, incidental, indirect, punitive or consequential damages whatsoever, including, but not limited to, damages for loss of profits or revenues, goodwill, failure to transmit or receive any data, loss of confidential information, business interruption, loss of privacy, corruption or loss of data, failure to receive or backup User’s data (or archived data), for any cause of action, including contract, tort (including negligence) or otherwise and any other loss whatsoever arising out of or in any way arising from or related to the use of Phoji, or following a failure, suspension or withdrawal of all or part of Phoji at any time, or for any third party content, software or functions used in connection with Phoji even if Phoji or any or all of its agents have been advised of the possibility of such damages.
User agrees to indemnify, defend and hold harmless Phoji, its subsidiaries, affiliates and agents and each of their respective officers, directors, governors, employees, successors and assigns from and against any claim, proceeding, loss, damage, liability, cost, demand or expense (including but not limited to attorney’s fees) of any kind arising out of: (i) User’s access to or use of Phoji; (ii) any breach by User of User’s obligations under this Agreement; (iii) User’s violation of the rights of a third party, including but not limited to infringement of any intellectual property, proprietary right or trade secret of any person or entity, or of any privacy or consumer protection right that is implicated herein; (iv) any violation of law or contractual obligation and any claims, demands, notices pursuant to such violation; and (v) User’s negligence or willful misconduct. These obligations will survive termination of this Agreement.
Users may not assign or otherwise transfer its rights or delegate its obligations under this Agreement, without the prior written consent of Phoji. Any attempted assignment in derogation hereof shall be null and void. User agrees that there shall be no third-party beneficiaries to this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota and the federal U.S. laws applicable therein, excluding its choice of law provisions, and User and Phoji agree to submit to the personal and exclusive jurisdiction of the courts located in Hennepin County Minnesota. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Each party shall comply with all laws, rules and regulations, if any, applicable to it in connection with the performance of its obligations under the Agreement. All notices shall be in English and in writing and (a) if sent to User as provided to Phoji and (b) if sent to Phoji to such address as provided at: email@example.com or as otherwise provided in writing for such notice purposes. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter; nor shall waiver of a breach of any provision constitute a waiver of the provision itself. The parties hereto are and shall remain independent contractors and nothing herein shall be deemed to create any agency, partnership or joint venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other nor shall either party have any right or authority to create any obligation on behalf of the other party. The Agreement (1) shall be binding on and inure to the benefit of each of the parties and their respective successors and assigns; (2) may be executed in counterparts, including facsimile counterparts, each of which will be deemed an original and all of which when taken together will constitute one and the same instrument; and (3) shall be construed as if both parties jointly wrote it. Neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures and Internet disturbances. If any provision of this Agreement is found void and unenforceable, it shall be replaced to the extent possible with a provision that comes closest to the meaning of the original provision. The unenforceability of any provision, however, shall not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. Any amendments or modifications to the Agreement must (i) be in writing; (ii) refer to the Agreement; and (iii) be executed by an authorized representative of each party. THIS AGREEMENT CONSTITUTES A COMPLETE INTEGRATION OF ALL UNDERSTANDINGS BETWEEN THE PARTIES AND IS THE ENTIRE AGREEMENT BETWEEN USER AND PHOJI RELATING TO THE SERVICE AND ALL TERMS HEREIN. THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Updated as of April 7, 2015.