SIZUNG PRIVACY, SECURITY AND USE AGREEMENT
Last updated on May 1, 2019
This Sizung Privacy, Security and Use Agreement (this “Agreement”) applies to your use of the applications, software, websites, and services (together, the “Application”) provided to you by Sizung, Inc., a Delaware corporation (“Sizung” / “we” / “us”).
By using the Application, you agree to be bound by this Agreement. If you are using the Application on behalf of an organization or entity (an “Organization”), you are consenting to this Agreement on behalf of that Organization and you represent that you have the authority to bind that Organization to this Agreement, and “you” and “your” as used in this Agreement refers to that Organization and any person affiliated with that Organization who uses your account.
I. YOUR CONTENT
The Application may allow you to create text, voice, video and/or other kinds of media and to upload associated files and other materials in/onto the Application (together, your “Content”). You will retain ownership of your Content at all times. By creating Content, you grant us a limited license to use, copy, reproduce, process, adapt, transmit, host and display that Content. Our license regarding your Content is subject to all of our undertakings regarding your privacy, as set out in Section III below.
II. YOUR SECURITY
We use our best efforts, within reasonable cost constraints, to protect the integrity of your Content and to guard against access to your Content that you do not authorize. We regularly review and update our technical safeguards, including but not limited to our encryption strategy, so as to ensure that they are industry-standard. We also employ managerial safeguards to ensure that your Content, to the extent that it could be available to Sizung employees or contractors (see Section III below) is not improperly accessed or misused by those employees or contractors.
III. YOUR PRIVACY
1. Information Stored by Sizung
a. Content and Profile Information
Your Content is stored in Sizung’s database(s), the servers supporting which may be proprietary or owned and managed by one or more third-party cloud-based service providers (such database(s), collectively, the “Database”). When you register for an account on the Application, you may be asked to provide your name, your email address, your mobile phone number, and/or other personally identifying information (collectively, your “Profile”), and this identifying information is stored in the Database. If you choose to use Sizung’s invitation service to invite someone to create an account on the Application, the contact information that you provide us for that person is stored in the Database. Sizung and/or its employees and/or its consultants will view your Content and/or Profile information only to the extent (i) pursuant to an agreement with you explicitly allowing us to view the same; (ii) necessary to resolve a technical issue regarding your account; (iii) that we have a good faith belief, or have received a complaint alleging, that your Content violates Section IV hereof; (iv) to allow Sizung to comply with applicable laws and regulations; or (v) to comply with a valid legal subpoena. Sizung may also analyze your Content on a fully anonymized basis, in order to improve the Application.
If the Application is being used in a web browser, Sizung may use technologies like cookies and pixel tags to provide and improve the Application, and the information collected thereby may be stored in the Database.
d. Log Files
When you use the Application, Sizung may automatically record certain information in server logs. These server logs may include information such as your web request, Internet Protocol (“IP”) address, browser type, referring / exit pages and URLs, number of clicks and how you interact with links on the Service, domain names, landing pages, pages viewed, and mobile carrier. Log files help us to monitor, analyze, improve and maintain the Application and to diagnose and fix any Application-related issues. These log files may be stored in the Database.
e. Device Identifiers
When you access the Application using a mobile device, we may collect specific device information contained in your mobile device’s “device identifier.” This device identifier includes information such as the type of device you are using, its operating system, and mobile network information, which may include your mobile phone number. We may associate this device identifier with your account and will use data associated with your device identifier to customize the Application to your device, and we may store this information in the Database.
2. When Your Information May Be Shared
We may share the information we collect from you with third parties only as described below.
a. As Directed By You
We will display your Profile information in accordance with the preferences you set in your account. You can review and revise your profile information at any time. We will display your Content within the Application as directed by you. Note that Content posted in a conversation on the Application marked “Public” may be visible to users of the Application who are not members of the relevant conversation and/or members of the public at large.
Please note that we are not responsible for the privacy policies of any web browser provider, internet service provider, or other provider of services that you use to access the Application.
b. With Third-Party Service Providers
c. Pursuant to Law or Subpoena
We may disclose your Content and/or Profile Information and/or any other information related to your use of the Application if required to do so by law or subpoena. We may also disclose such information to our legal counsel, governmental authorities or law enforcement if we believe that it is reasonably necessary to do so in order to comply with a law or regulation, to protect the safety of any person, to address fraud, security or technical issues, or to protect Sizung’s rights or property.
d. In a Fully Anonymized Manner
We may disclose aggregate non-personally identifiable information about the use of the Application publicly or with interested third parties in order to improve the Application.
e. In Connection With a Sale or Change of Control
If the ownership of all or substantially all of our business changes, we may transfer your information to the new owner so that the Application can continue to operate. In such case, your information would remain subject to the promises and commitments contained in this Agreement until such time as the Agreement is updated or amended by the acquiring party upon notice to you.
3. Other Users
Please note that we cannot control the actions of other users with whom you share your Content. We are not responsible for third party circumvention of any privacy settings or security measures on the Application.
4. International Data Transfer
We may transfer information that we collect about you, including Content, Profile information, or other personally identifying information, to affiliated entities, or to other third parties (but only in accordance with the terms of this Agreement) across borders and from your country or jurisdiction to other countries or jurisdictions. If you are located in the European Union or any other jurisdiction with laws governing data collection and use that differ from U.S. law, please note that you are transferring information, including personal information, to a country and jurisdiction that does not have the same data protection laws as your jurisdiction, and you consent to the transfer of information to the U.S. and the use and disclosure of information about you, including personal information, as described in this Agreement. If you are located in the European Union, please note that Sizung may act as the “data controller” with respect to the processing of your Content pursuant to the EU General Data Protection Regulation (“GDPR”).
5. Links to Other Websites
Sizung is not responsible for the practices employed by websites linked to from within the Application, nor the information or content contained therein. If you use a link to go from the Application to another website, this Agreement no longer applies and your activities on that third party website are subject to such third party website’s rules and policies.
6. Affiliated Entity Access to Your Content
When you sign up for our Application, you associate one or more email addresses with your account. If you use an email address provided to you by a third party entity of which you are a part (an “Entity”) you may be granting, depending on the Entity’s internal policies, that Entity and its administrator(s) permission to access, use, download, export, disclose, share, restrict and/or remove Content, Profile information, and/or other personally identifying that you have associated with the email address that includes their domain. You acknowledge and understand that an Entity may elect to utilize one or more third party applications in connection with their teams’ use of the Application and that, by associating Content with an email address that includes an Entity’s domain, you may be granting permission to have such Content shared with such Entity’s application(s). You also acknowledge and understand that an Entity may restrict or terminate your access to Content associated with the email address that includes their domain.
7. Use of Third-Party Applications
IV. YOUR USE OF THE APPLICATION
All users of the Application are expected to comply with this Section IV. Failure to do so may result in suspension or termination of your Sizung account. Please note that Sizung retains the sole discretion to determine whether you have misused the Service.
(a) You must provide accurate information when you create your Sizung account.
(b) You are responsible for safeguarding your password and for all activities that occur under your account. You should notify Sizung immediately if you become aware of any breach of security or unauthorized use of your account.
(e) The Application is not intended for use by persons under the age of 13. By using the Application you are representing to us that you are over the age of 13.
2. Misuse of the Service.
The following list is merely indicative and not exhaustive. You may not: use the Application for any unlawful purpose or for promotion of illegal activities; impersonate another person through the Application or otherwise misrepresent an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others; publish or post another person’s Content, Profile or other private or personally identifiable information, such as credit card numbers, street address or social security/national identity numbers, without their express authorization and permission; send unsolicited communications, promotions, advertisements, or spam; publish or link to malicious content intended to damage or disrupt another user’s application, browser or device; access, tamper with, or use non-public areas of the Application, Sizung’s computer systems, or the technical delivery systems of Sizung’s providers; probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure; access or search the Application by any means other than Sizung’s publicly supported interfaces (for example, by “scraping”); reverse engineer Application functionality; forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Application to send altered, deceptive or false source-identifying information; interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the Application, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Application; or promote or advertise products or services other than your own without appropriate authorization.
3. Limitations on Content and Profile Information
The following list is merely indicative and not exhaustive. Your Content and/or Profile Information may not: create a risk of harm, loss, or physical or mental injury to any other person or the risk of loss or damage to any property; violate any applicable law, any intellectual property rights, or anyone’s right of privacy or publicity; be defamatory, libelous or threatening or that constitutes hate speech; or contain any information that you do not have a right to make available under law or any contractual or fiduciary duty.
Please note that Sizung retains the sole discretion to determine whether your Content and Profile information adheres to this Agreement.
V. OTHER PROVISIONS
1. Software License
As part of the Application, we may provide downloadable client software (the “Software”) for your use in connection with the Application. This Software may update automatically and if such Software is designed for use on a specific mobile or desktop operating system, then a compatible system is required for use. So long as you comply with this Agreement, we grant you a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Application; provided, however, that this license does not constitute a sale of the Software or any copy thereof, and as between Sizung and you, Sizung retains all right, title and interest in the Software.
You are free to stop using the Application at any time. Sizung reserves the right to suspend or end the Application at any time at Sizung’s discretion and without notice. Sizung may terminate or suspend your access to the Application at any time if you are not complying with this Agreement.
3. Sizung’s Intellectual Property Rights
The Application (excluding Content provided by users) constitutes Sizung’s intellectual property and will remain the exclusive property of Sizung and its licensors.
4. Modification of the Application
The Application may be modified from time to time, including without prior notice to you. Your continued use of the Application constitutes your acceptance of such modifications. If you are not satisfied with a modification made to the Application, your sole remedy is to terminate your use of the Application.
5. Legal Bases for Use of Your Information
If you are located in the European Union, please note that the legal bases under the EU General Data Protection Regulation (“GDPR”) for using the information we collect through your use of the Application are as follows:
(a) Where use of your information is necessary to perform our obligations under a contract with you (for example, to comply with this Agreement, which you accept by using the Application).
(b) Where use of your information is necessary for our legitimate interests or the legitimate interests of others (for example, to provide security for our Application; operate our Application; prevent fraud, analyze use of and improve our Application, and for similar purposes).
(c) Where use of your information is necessary to comply with a legal obligation.
(d) Where we have your consent to process data in a certain way.
You agree to defend, indemnify and hold harmless Sizung and its licensee and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from your use of and access to the Application, or from or in connection with any Content uploaded to the services through your account by a third party using your account with your knowledge or consent.
7. No Warranty
THE APPLICATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SIZUNG IS NOT RESPONSIBLE FOR ANY THIRD PARTY CONTENT THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE USE OF THE APPLICATION OR FOR ANY DAMAGE OR LOSS OF DATA THAT MAY RESULT. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY APPLICATION OR SERVICES THAT PROVIDES ACCESS TO OUR APPLICATION (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY APPLICATION DEVELOPED USING SIZUNG’S API).
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SIZUNG, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, DATA OR OTHER INTANGIBLE LOSSES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE APPLICATION, WHETHER OR NOT SIZUNG HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SIZUNG’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATED TO THE APPLICATION SHALL NOT EXCEED THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO SIZUNG IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM GIVING RISE TO SUCH LIABILITY.
9. Dispute Resolution
(a) Informal Efforts - You agree that prior to filing any claim against Sizung relating to or arising out of this Agreement you will first contact us to provide us with an opportunity to resolve the issue in an informal manner.
(b) Arbitration - If such dispute is not resolved to our mutual satisfaction within 30 days of submission, then either party may bring a formal claim, which claim shall be resolved through final and binding arbitration administered by the American Arbitration Association (the “AAA”).
(c) Arbitration Procedures and Fees - The AAA will administer arbitration proceedings under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes as in effect at the time of the submission of the claim. Arbitration will be held in New York, NY, or in any other location agreed to between you and Sizung. The AAA rules will govern payment of all arbitration fees. Sizung will not seek its attorneys’ fees and costs in arbitration unless the arbitral tribunal determines that your claim is frivolous.
(d) Injunctive Relief - Nothing in this Section shall be deemed as preventing either party from seeking injunctive or other equitable relief from the courts of any jurisdiction as necessary to stop unauthorized use or abuse of the Application or intellectual property infringement (for example, trademark, trade secrets, copyright or patent rights) without first engaging in arbitration or the informal dispute resolution process.
(e) No Class Actions - ALL CLAIMS MUST BE BROUGHT ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS WILL NOT BE PERMITTED.
(f) Judicial Forum - In the event that the agreement to arbitrate is found not to apply to your claim, then you and Sizung agree that any judicial proceedings will be brought in the federal or state courts in New York County, NY and both parties consent to venue and personal jurisdiction there.
10. Governing Law
This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles.
11. Entire Agreement; Severability; Waiver.
This Agreement constitutes the entire agreement between you and Sizung concerning the Application and replaces any prior or contemporaneous agreements or conditions applicable to your use of the Application. If a provision of this Agreement is found to be unenforceable, the remaining provisions of this Agreement will remain in full force and effect and an enforceable term will be substituted reflecting as closely as possible the original intent of the parties. Sizung’s failure to enforce any provision of this Agreement shall not be deemed a waiver of its right to do at any later time.
This Agreement and the rights and licenses granted hereunder may not be transferred or assigned by you, but may be assigned by Sizung without restriction. Any attempted transfer or assignment by you will be null and void.
We may provide you with legal notices and notices related to your account via email using the email address associated with your account. We may provide you with other marketing or business-related information, including information about updates or changes to the Application, via the Application and/or via email.
14. Changes to this Agreement
If we change this Agreement, we will post such changes on the Application and/or on our website in order to keep you aware of what information we collect, how we use it and under what circumstances we may disclose it. Changes to this Application are effective when such changes are posted to the Application and/or our website.