Terms of Service

Last updated: 12-13-24

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. IF YOU RESIDE IN THE UNITED STATES, PLEASE NOTE THAT SECTION 23 CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS HOW DISPUTES WITH PHEON, INC. ARE RESOLVED. BY ACCEPTING THESE TERMS, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE ARBITRATION PROVISION BELOW.

1. Acceptance of Terms

Pheon, Inc. owns and operates www.pheon.com and any associated or affiliated websites or applications under its name and/or the name Dialogue and for its customers (collectively, the App), for all time which are referred to in these Terms of Service. Pheon, Inc. operates the App to allow Users to interface with Characters (collectively, the Services).

By using the App or Services, you agree to comply with and be legally bound by the terms, conditions, and restrictions of these Terms of Service (Terms). Please carefully review these Terms, as well as our Privacy Policy which is incorporated into the Terms. If you do not agree to these Terms, you have no right to obtain information from or otherwise continue using the App or Services.

Individuals who use the Services are referred to as Users, and “you” and “your” refer to you as a User as well. If you access the Services or accept these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that legal entity and, in such event, “you” and “your” will refer to that legal entity. “We”, “us”, or “our” refer to Pheon, Inc. In addition, in these Terms, unless the context requires otherwise, words in one gender include all genders and words in the singular include the plural and vice-versa.

You agree to provide true, accurate, current, and complete information. You are responsible for maintaining the confidentiality of your account information, including your username and password. You are responsible for all activities that occur on or in connection with your account and you agree to notify us immediately of any unauthorized access or use. You acknowledge and agree that we are not responsible nor liable for any damages, losses, costs, expenses, or liabilities related to any unauthorized access to or use of your account.

THE SERVICES ARE AN ONLINE PLATFORM THROUGH WHICH USERS MAY CREATE CHARACTERS TO INTERACT WITH OTHER USERS. YOU UNDERSTAND AND AGREE THAT PHEON, INC. HAS NO CONTROL OVER THE CONDUCT OF USERS OF THE SERVICES AND DISCLAIMS ALL LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS.

These Terms are supplemented by other relevant agreements, including the Apple, Google, Instagram and Meta Terms of Service/Terms of Use, Supplemental Meta Platforms Technologies Terms, Stripe and Community Payment Terms, Facebook Community Standards, and Instagram Community Guidelines. These Additional Terms are deemed incorporated by reference into these Terms.

2. Modification

Pheon, Inc. reserves the right, at its sole discretion, to modify or discontinue, temporarily or permanently, the App and/or the Services, or to modify these Terms at any time and without prior notice. If we modify these Terms, we will post notice of the modification and the applicable changes via the App. We will also update the Last Updated Date at the top of these Terms. Modifications to these Terms will automatically take effect upon posting; provided, however, that material changes to the Terms will only be effective as to a preexisting User thirty (30) days after posting. By continuing to access or use the App after we have posted a modification, you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, then your only recourse is to cease accessing or using the App and the Services.

3. Eligibility

The Services are intended solely for persons who are 18 or older. By accessing or using the Services you represent and warrant that you are not legally prohibited from accessing the Services under the laws of the country in which you access or use them.

4. About the Services; Registration

The Services allow Users to create characters and interact with other Users through the chatbot features of the Services.

Signing Up:There is no direct registration feature on the App. Users may login through their Google Play or Apple ID profiles to link the subscription. Users may also register through web2web and pay for their subscriptions through Stripe or PayPal.

5. Service Process; Fees

Users pay for access to the Services via a subscription through PayPal or Stripe. Pheon will not process refunds for any Google Play/App Store transactions as links are provided below. Refunds are processed according to the terms of the Google Play/ App Store

Pheon is not responsible for any payment issues with Users interfacing with Stripe or other Payment Systems and will not be liable for any refunds, fees, etc., except as specifically provided for herein.

Refunds:Upon completing a purchase via the App or the Services, you acknowledge and agree that the purchase is final, non-refundable, and non-exchangeable. The Company will issue refunds only if required by applicable law or, at its sole discretion, within 14 days of the original purchase date.

You may qualify for the Company’s provision of a refund in the following circumstances:

- Technical Issues or Product Malfunctions: If the Services consistently fail to perform as intended due to technical malfunctions such as software bugs, or server outages that significantly impair usability or productivity of the Services, and the issues are reported and unresolved for more than [10 days]

- Subscription Billing Errors: In cases of overcharges or if a customer is mistakenly charged for a higher-tier subscription than they selected, the Company will issue a refund for the difference or erroneous charge.

To request a refund, please contact our support team within the eligibility period at [email protected] or at [email protected] or submit a request via the in-app 'Send us email' option.

The Refund Policy does not cover accidental or unintended purchases, requests based on dissatisfaction with the product experience, or auto-renewed purchases.

If you are located within the European Economic Area and you have paid for the Services but have never used them (where usage includes creating characters) and you are still within the first 14 days of your subscription, we will refund you in full for the applicable Services under your subscription upon your written request. However, you do not have a right to change your mind once you have used the Services, even if the 14-day period is still running; and if you cancel your subscription, during the 14 day period, after you have used the Services, any applicable Subscription fee paid or payable remains the property of the Company and otherwise due and payable, and you will not be entitled to any refund for or waiver of charges for the applicable Services under your subscription.

For Google Play users, please go to: https://support.google.com/googleplay/answer/7659581?sjid=11439130731161595794-NC for information regarding requesting a refund.

For App Store users, please go to: https://support.apple.com/en-us/118223 /to learn how to request a refund.

6. Account Profiles/Creation and Use of Characters

Users with an Account may create a character, and other Users will be able to interact with your character. When you create characters or engage in communication which may include posting Content, you represent and warrant that you have the right, power, and authority to use that Content and have obtained all necessary licenses specified below. You further represent and warrant that by creating any characters or posting or providing such Content you will not violate third-party rights of any kind, including, without limitation, any copyrights, patents, trademarks, trade secrets, moral rights, rights of publicity, privacy rights, and other intellectual property and proprietary rights (collectively, Intellectual Property Rights). To the extent your Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such Content and that we may exercise the rights to your Content granted under the Terms without any liability or obligation for any payment.

In addition, you are responsible for all postings you make, and you represent and warrant regarding those postings that: (a) they will follow all applicable laws, rules and guides (such as FTC Guides Concerning Sponsored Endorsements); (b) that you have all necessary Intellectual Property Rights to any posting; and (c) your posting does not infringe the Intellectual Property Rights of any third party. We assume no responsibility for compliance with any agreements between Users, or duties owed by a User to a third party, or a User’s compliance with applicable laws, rules and regulations.

License Grant: All Users automatically grant Pheon, Inc. an irrevocable, worldwide, royalty-free and fully paid up, transferrable and sublicensable (including through multiple tiers) license in perpetuity to amend, modify, make changes to, and/or improve User Content without notice to User.

PLEASE NOTE THAT, PHEON, INC. CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY POSTED INFORMATION. PHEON, INC. IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL USER-POSTED INFORMATION, INCLUDING COMPLIANCE WITH APPLICABLE LAWS, RULES AND GUIDES.

A. Character Images

Authorized Use Only: Users may not use celebrity and/or third-party images unless they have obtained proper authorization or licenses to do so. Requisite authorization may, but does not necessarily include:
- Public Domain Images: Images that are in the public domain or have expired copyrights.
- Licensed Images: Images for which the User holds a valid license or permission from the copyright owner.
- Transformative Use: Images that are significantly altered or transformed (e.g., caricatures, parodies) to create a new work.

B. Prohibited Use

Unauthorized Celebrity Images: Users must not use celebrity or other unauthorized characters nor images without proper authorization or licenses.
Misrepresentation: Users must not imply endorsement, affiliation, or sponsorship by a celebrity or any other person.
Defamatory or Harmful Content: Characters must not contain defamatory, offensive, or harmful material.
Infringement: Users must not infringe upon any intellectual property rights.

WE RESERVE THE RIGHT, AT ANY TIME AND WITHOUT PRIOR NOTICE, TO REMOVE OR DISABLE ACCESS TO ANY ACCOUNT, PROFILE OR CONTENT FOR ANY REASON, INCLUDING WHEN WE, IN OUR SOLE DISCRETION, DEEM IT TO BE OBJECTIONABLE FOR ANY REASON, IN VIOLATION OF THESE TERMS OR ANY OF OUR THEN-CURRENT POLICIES AND GUIDELINES, OR OTHERWISE HARMFUL TO PHEON, INC. OR THE SERVICE.

7. No Endorsement

You understand and agree that Pheon, Inc. is not involved in the agreements and communications between Users. You also understand and acknowledge that Pheon, Inc. does not edit, modify, filter, screen, monitor, endorse or guarantee Content nor any text of communications between Users.

Users are solely responsible for investigating and verifying to the extent they deem necessary the identity and credentials of other Users created and contacted via the Services. By using the Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third parties will be limited to a claim against the particular User(s) or other third party(ies) who caused you harm, and you agree not to attempt to impose liability on, or seek any legal remedy from, Pheon, Inc. with respect to such actions or omissions.

8. User Representations, Conduct and Use

By using the Services, you represent, warrant and agree to the following:

You are at least 18 years of age.
You will not impersonate any person or entity, nor falsify or otherwise misrepresent yourself or your affiliation with any person or entity.
You will not make Content that infringes or misappropriates a third party’s intellectual property, proprietary or right of publicity rights.
You are solely responsible for compliance with, and agree to comply with, any and all laws, rules, regulations, or obligations that may apply to your use of the Services or your Content.
Nothing that you upload, publish, represent, warrant or transmit using the App or Services, will infringe, misappropriate or violate any Intellectual Property Rights, or result in the violation of any applicable law or regulation.
You will not use manual or automated software, devices, scripts, redirects, robots, other means or processes to access, frame, mirror, scrape, crawl or spider any web pages or other elements contained in the Services.
You will not use the Services for any commercial or other purposes that are not expressly permitted by these Terms.
You will not copy, store or otherwise access any information contained as part of or in association with the Services for purposes not expressly permitted by these Terms.
You will not interfere with or damage the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technologies.
You will not systematically retrieve data or Content from the Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of software, bots, crawlers, or spiders, or otherwise.
You will not access, tamper with, or use non-public areas of the App or Services, Pheon, Inc.’s computer systems, or any third-party provider system.
You will not create hate-related or violent material, and/or material advocating discrimination or intolerance against individuals or groups; and/or material related to glorification of violence and/or hate.
You will not create obscene, excessively profane material or otherwise objectionable material.
You will not create Content advocating or advancing criminal hacking, cracking, or phishing.
You will not create Content related to illegal drugs or paraphernalia.
You will not create Content related to/and or material promoting the sale and use of firearms and related accessories.
You will not create Content related to/and or material promoting political content; including but not limited to: Content that references a candidate, political party, elected or appointed government official, election, referendum, ballot measure, legislation, regulation, directive, or judicial outcome.
You will not create Content related to/and or material promoting PACs or Super-PACs.
You will not create malicious material, unlawful software; malicious code, such as viruses, worms, time bombs, Trojan horses and other harmful or malicious files, scripts, agents or programs, nor Material that violates, encourages or furthers conduct that would violate any applicable laws, including any criminal laws, or any third-party rights, including publicity or privacy rights.

9. Prohibited Actions

You may not use the Services, nor allow any other Users or any third party to use the Services to or for the purpose of any of the following:

Generate or facilitate unsolicited commercial email (spam).
Sending communications or email in violation of the CAN-SPAM Act or any other applicable anti- spam law or regulation.
Imitating or impersonating Pheon, Inc., another person or his, her, their or its email address, or creating false accounts for the purpose of sending spam.
Data mining or harvesting any web property (including any External-Facing Service) to find email addresses or other User account information.
Sending unauthorized mail via open, third-party servers.
Sending email to Users who have requested to be removed from a mailing list.
Selling to, exchanging with, sharing with or distributing to a third-party, personal information, including the email addresses of any person without such person’s knowing and continued consent to such disclosure.
Sending unsolicited emails to significant numbers of email addresses belonging to individuals and/or entities with whom you have no preexisting relationship.
Send, upload, distribute or disseminate material or offer to do the same, where it is or would be unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, excessively profane, hateful, violent, or otherwise objectionable, nor to promote, support or facilitate unlawful, hateful, discriminatory, or violent causes.
Intentionally distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature.
Conduct or forward multi-level marketing, such as pyramid schemes and the like.
Generate or facilitate SMS, MMS, or other text messages or push notifications in violation of the Telephone Consumer Protection Act, the Do-Not-Call Implementation Act, or any other applicable law including anti-spam, telemarketing or telephone consumer protection laws or regulations.
Use the services in any manner that violates any applicable industry standards, third party policies or requirements that Pheon, Inc. may communicate to its Users, including all of the applicable guidelines published by the CTIA, the Mobile Marketing Association, the Self- Regulatory Principles as directed by the Digital Advertising Alliance and the Network Advertising Initiative or any other generally accepted industry associations, carrier guidelines or other industry standards;
Transmit material that may be harmful to minors.
Illegally transmit another’s intellectual property or other proprietary information without such owner’s or licensor’s permission.
Impersonate another person, entity or Pheon, Inc. (via the use of an email address or otherwise) or otherwise misrepresent themselves or the source of any communication.
Violate the rights (such as rights of privacy or publicity) of others.
Promote, facilitate or encourage illegal activity.
Interfere with other Users’ enjoyment of the Services.
Mislead people about voting processes or census processes.
Engage in activity in connection with illegal peer-to-peer file sharing.
Engage in or promote gambling or run a gambling operation.
Sell, distribute or export illegal or prescription drugs or other controlled substances or paraphernalia.
Access (including through any interfaces provided with the Services), any Pheon, Inc. product or Services, or other Services or website, in a manner that violates the terms for use of or access to such Services or website.
Operate an “open proxy” or any other form of Internet proxy service that is capable of forwarding requests to any end user or third party-supplied Internet host.
Perform significant load or security testing without first obtaining Pheon, Inc.’s written consent.
Remove any copyright, trademark or other proprietary rights notices contained in or on the Services or reformat or frame any portion of the web pages that are part of the Services’ administration display.
Access a third-party web property for the purposes of web scraping, web crawling, web monitoring, or other similar activity through a web client that does not take commercially reasonable efforts to identify itself via a unique User Agent string describing the purpose of the web client and obey the robots exclusion standard (also known as the robots.txt standard), including the crawl-delay directive.
Use the Services in any manner that would disparage Pheon, Inc.
Use the Services to transact online sales of any firearms and/or related accessories to private citizens.

Pheon, Inc. will have the right to examine and prosecute violations of any of the above to the fullest extent of the law. Pheon, Inc. may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms.

You acknowledge that Pheon, Inc. is not responsible for monitoring your access to or use of the App or Services but has the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.

10. Ownership; Rights

The Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Services, including the App and all associated Intellectual Property Rights, are the exclusive property of Pheon, Inc. and its licensors. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the App.

Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferable right to (i) access and utilize the Services made available to you, and (ii) access and view any Content of other Users which you are permitted access. You represent, warrant and agree that you will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Services or Content of other Users, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any Intellectual Property Rights owned or controlled by Pheon, Inc. or its licensors, except for the rights expressly granted in these Terms.

Any Content you upload to our Applications and make publicly available shall be considered non-confidential. By making any of your Content available on or through the Services, you hereby grant to Pheon, Inc. a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to create derivative works, to use, edit, view, copy, adapt, modify, distribute, host, market, transfer, display, perform, transmit, stream, broadcast, access, and otherwise fully utilize such Content on the Services as currently exist or may be developed in the future. Pheon, Inc. does not claim any ownership rights in any User-provided Content that does not incorporate Pheon’s own Intellectual Property and nothing in these Terms will be deemed to unreasonably restrict any rights that you may have to use and exploit your Content. For the avoidance of doubt, the license granted in this paragraph applies to your Content accessible via the Services or posted to or available through the App.

11. Digital Millennium Copyright Act

If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single website location are covered by a single notification, a representative list of such works at that website (for example, take dated screenshots of the infringing Content and submit the same)
Identification of the specific Content that has been copied or used without permission, and if possible, determination of the infringer’s web host or domain registrar, along with the specific URL(s) of the infringing material.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the Services provider to locate the material.
Information reasonably sufficient to permit the Services provider to contact you, such as an address, telephone number, and, if available, an electronic mail address.
A statement 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.
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Pheon, Inc.’s designated Copyright Agent to receive notifications of claimed infringement is Pheon, Inc. (attention Pheon Legal) email: [email protected], address: Sutter Law PC, 61G Avenida De Orinda, Orinda, CA 94563. You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.

Counter-Notice.If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in such Content, you may send a counter-notice containing the following information to the Copyright Agent:

Your physical or electronic signature.
Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled.
A statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of such Content.
Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, the removed Content may be replaced, or access to it restored thereafter at our sole discretion.

12. Links

The Services may contain links to third-party websites or resources. You acknowledge and agree that Pheon, Inc. is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Pheon, Inc. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products or services on or available from such websites or resources.

13. Advertisements

Pheon, Inc. may include advertisements on its own behalf or paid advertisements on behalf of interested companies and/or individuals on or as a party of the Services. By clicking on the advertisements, you may be shifted to a website of the advertiser or receive other messages, information, or offers from the advertiser. You acknowledge and agree that Pheon, Inc. is not liable for the privacy practices of advertisers or the content of their websites, information, messages or offers. Users are wholly liable for all communications with advertisers and for all transactions subsequently executed or services or products procured thereof.

14. Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of Pheon, Inc. used herein are common law trademarks or registered trademarks of Pheon, Inc. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the common law trademarks or registered trademarks of their respective parties.

15. Termination

We may, in our discretion and without liability to you, with or without cause, with or without prior notice, and at any time terminate these Terms or your access to the Services. We have the right to disclose your identity to any third party who claims that any Content posted/uploaded by you constitutes a violation of their intellectual property rights or right to privacy. Upon termination we will promptly remit to you any funds in our control that we reasonably determine are owed to you by us, if any. You may cancel your Subscription at any time by contacting us at [email protected] or following the prompts on the App. Please note that if your User Subscription is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Services, including, but not limited to, any reviews or feedback.

16. Disclaimers

IF YOU CHOOSE TO USE THE SERVICES (INCLUDING ITS CHATBOT FEATURES), YOU DO SO AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED “AS IS” AND AS AVAILABLE, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, PHEON, INC. EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PHEON, INC. MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. PHEON, INC. MAKES NO WARRANTY REGARDING THE QUALITY OF THE SITE.

YOU ACKNOWLEDGE AND AGREE TO INDEMNIFY, DEFEND AND FOREVER AND HOLD PHEON, INC. HARMLESS IN CONNECTION WITH ANY CLAIM AND ANY DAMAGES OR EXPENSES OR FEES (INCLUDING ATTORNEYS’ FEES) ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ALL INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS ARISING OUT OF YOUR USE OF THE SERVICES AND THE APP.

YOU ASSUME ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO YOUR USE OF CHATBOT FEATURES OF THE SERVICES. YOU ASSUME ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY DECISIONS OR ADVICE MADE OR GIVEN AS A RESULT OF YOUR USE OF THE CHATBOT FEATURES OR ANY MATERIALS RETRIEVED THEREFROM, INCLUDING THOSE OBTAINED FROM INTERACTIONS WITH THIRD PARTIES.

UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY CONTENT OR MATERIALS GENERATED OR EXCHANGED WHILE USING THE CHATBOT FEATURES OF THE SERVICES, INCLUDING CHARACTERS CREATED BY USERS AND ANY RESULTING CORRESPONDENCE OR INTERACTION WITH CHARACTERS. YOU ACKNOWLEDGE THAT WE DO NOT PRE-SCREEN CONTENT AND THAT AI-CHARACTER GENERATED CHATS, BY THEIR NATURE, ARE UNPREDICTABLE AND MAY PRODUCE GENERATIONS THAT ARE INACCURATE OR OFFENSIVE. YOU AGREE THAT YOU MUST EVALUATE, AND BEAR ALL RISKS ASSOCIATED WITH THE USE OF ANY CHATBOT-GENERATED CONTENT. YOU SHOULD NOT RELY ON THE ACCURACY OR COMPLETENESS OF STATEMENTS MADE WHILE USING THE CHATBOT FEATURES OF THE SERVICES, AND IF YOU DO SO, YOU ACKNOWLEDGE THAT IT IS AT YOUR OWN RISK.

17. Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, THE APP, OR SERVICES REMAINS WITH YOU. NEITHER PHEON, INC. NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, APP OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PHEON, INC. HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

18. Indemnification

YOU AGREE TO RELEASE, DEFEND, INDEMNIFY, AND FOREVER HOLD PHEON, INC. AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, HARMLESS FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, LOSSES, AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL FEES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (A) YOUR ACCESS TO OR USE OF THE SERVICES, OR YOUR VIOLATION OF THESE TERMS; (B) YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY INTELLECTUAL PROPERTY RIGHT OR PUBLICITY RIGHT; OR (C) ANY CLAIM THAT YOUR USE OF THE SERVICES CAUSED DAMAGE TO A THIRD PARTY. PHEON, INC. SHALL HAVE THE RIGHT TO CONTROL ALL DEFENSE AND SETTLEMENT ACTIVITIES REQUIRED HEREOF.

19. Assignment

You may not assign or transfer these Terms or any rights or obligations hereof, by operation of law or otherwise, without Pheon, Inc.’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void ab-initio. Pheon, Inc. may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

20. Notices

Unless otherwise specified herein, any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Pheon, Inc. by posting to the website or via the application. For notices or communications by Pheon, Inc. made by e-mail, if any, the date of receipt will be deemed the date on which such notice is transmitted.

21. Controlling Law, Jurisdiction

You agree that (i) the App and Services shall be deemed solely based in California, and (ii) the App shall be deemed a passive website that does not give rise to personal jurisdiction over Pheon, Inc., either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. You and we agree to submit to the personal jurisdiction of the state and federal courts located in San Francisco, California for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution Provision below. Any action brought by either party against the other concerning the transactions contemplated by these Terms shall be brought only in the state or federal courts of San Francisco County, California. You hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense or objection based on lack of jurisdiction or venue or based upon forum non conveniens.

Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding via substituted service or via publication, to the fullest extent permitted by applicable law.

YOU AND PHEON, INC. AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AND WAIVED.

22. Severability

These Terms are intended to govern the agreement between Pheon, Inc. and you to the extent permitted by all applicable laws, ordinances, rules, and regulations. If any provision of these Terms or the application thereof to any person or circumstances shall, for any reason or to any extent, be invalid or unenforceable, the remainder of these Terms and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.

23. Dispute Resolution Provision

You and Pheon, Inc. agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the App or Services (collectively, Disputes) will be settled by binding arbitration; except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of any Intellectual Property Rights.

You acknowledge and agree that you and Pheon, Inc. are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Pheon, Inc. otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding.

Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (AAA) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the AAA Rules) then in effect, except as modified by this Dispute Resolution section. (The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/ and a separate form for California residents at www.adr.org/. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAAs roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure. Arbitration will be conducted in San Francisco County. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Pheon, Inc. submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules for Commercial Arbitration (AAA Rules). Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s awarded damages must be consistent with the terms of the Limitation of Liability section above as to the types and the amounts of damages for which a party may be held liable. The prevailing party in arbitration, will be entitled to an award of attorney’s fees and expenses, to the extent provided under applicable law.

Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. Unless otherwise provided therein, all fees of first appearance shall be each respective parties obligation and all other fees of the arbitrator shall be split equally between the parties unless determined otherwise by the arbitrator (such as in the case of sanctions or an award of costs of fees).

No Class Action. YOU AND PHEON, INC. AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Pheon agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

Changes. Notwithstanding the provisions of the Modification section above, if Pheon, Inc. amends this Dispute Resolution section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms) you will be notified in accordance with these Terms. You may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the Last Updated Date above or in the date of Pheon, Inc.’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Pheon, Inc. in accordance with the provisions of this Dispute Resolution section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

Right to Opt-Out of Arbitration and Class Action/Jury Trial Waiver: You may opt out of the foregoing arbitration and class action/jury trial waiver provision of these Terms by notifying us in writing within 30 days of the date you first registered for the Services. To opt out, you must send a written notification to Pheon, Inc., Attn: Sutter Law PC, 61G Avenida De Orinda, Orinda, CA 94563 that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions. Alternatively, or in addition, you may send this written notification to: [email protected].

24. International Users

Pheon, Inc. makes no claim that the App is appropriate or may be downloaded outside the United States. If you access the App from a location outside the United States, you do so at your own risk and are responsible for compliance with all applicable laws, rules, regulations or decrees of your jurisdiction.

25. Feedback and Reporting Misconduct

We welcome and encourage you to provide feedback, comments and suggestions (collectively Feedback) for improvements to the App. You may submit feedback by emailing us at [email protected]. You acknowledge and agree that all Feedback will be the sole and exclusive property of Pheon, Inc. and you hereby irrevocably assign to Pheon, Inc. and agree to irrevocably assign to Pheon, Inc. all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Pheon, Inc.’s request and expense, you will execute documents and take such further acts as Pheon, Inc. may reasonably request to assist Pheon, Inc. to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.

26. General

The failure of Pheon, Inc. to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Pheon, Inc. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Certain Service features, or website and/or application areas (and your access to or use of certain aspects of the Services or Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the App, Services, or Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the website, application, Services, or Content.

By registering or by clicking to accept these Terms, you are deemed to have executed these Terms electronically, effective on the date you register your Account, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Your creation of a Registered Customer account constitutes an acknowledgment that you are able and willing to electronically receive, download, and print these Terms, any amendments, and any agreements with other Users.

27. Notice to California Residents.

If you are a California resident, under California Civil Code 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at: 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.

28. Entire Agreement

These Terms constitute the entire and exclusive understanding and agreement between Pheon, Inc. and you regarding the Services, and supersede and replace any and all prior oral or written understandings or agreements between Pheon, Inc. and you regarding the same.

Disclaimer: The original, legally binding version of this document is written in English. If it is translated into other languages by non-native English-speakers or by software, there may be discrepancies between the English version and the translated version. If so, the English version supersedes the translated version.