Effective Date: September 5, 2019
1. Introduction; Your Agreement to these Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION WHICH (IF YOU ARE RESIDENT IN THE USA OR ELSEWHERE IN THE WORLD, BUT NOT IF YOU ARE A CONSUMER IN THE EUROPEAN UNION) REQUIRES THAT DISPUTES ARE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL AND NOT A CLASSWIDE OR CONSOLIDATED BASIS.
Welcome to pop.in (“pop.in”, “we”, “ us” or “our”) consisting of the web site available at the URL http://pop.in and all related services, apps and networks that allow for interactive video, audio, text, and imagery experiences (collectively, the “pop.in Service”). The pop.in Service also includes any other sites or services that link to these terms of service (the “Terms of Service”). Other services offered by pop.in may be subject to separate terms (in which case we will let you know what terms will apply to those services). The following Terms of Service for the pop.in Service is a legal contract between you, an individual user of at least 13 years of age (see section 2 below about minors using pop.in) or a single entity (“you” or “your”), and pop.in regarding your use of the pop.in Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, DOWNLOADING FROM OR USING THE POP.IN SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE POP.IN SERVICE OR, IF YOU ARE A CONSUMER RESIDENT IN THE EUROPEAN UNION, CONTACT US AT PRIVACY@POP.IN TO DISCUSS ANY CONCERNS YOU MAY HAVE REGARDING THESE TERMS OF SERVICE. IF YOU ARE USING OR OPENING AN ACCOUNT WITH POP.IN ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY, A “SUBSCRIBING ORGANIZATION”) THEN YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AN AUTHORIZED REPRESENTATIVE OF THAT SUBSCRIBING ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS OF SERVICE; (II) HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE, AND (III) AGREE TO THESE TERMS OF SERVICE ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION.
2. Use of pop.in by Minors and Blocked Persons.
The pop.in Service is not available to persons under the age of 13. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your country of residence), you may only use the pop.in Service under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service. BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE POP.IN SERVICE, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE POP.IN SERVICE.
The pop.in Service is also not available to any users previously suspended or removed from the pop.in Service by pop.in (see section 15 below for more about suspension or removal).
The pop.in Service is owned and operated by Smiletime, Inc. Unless otherwise indicated, all content and other materials on the pop.in Services, including, without limitation, pop.in’s logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, information, data, sound files, other files and the selection and arrangement thereof (collectively, the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws (including in your country of residence). All Materials contained on the pop.in Service are the proprietary property of pop.in or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to pop.in or its affiliates and/or third-party licensors. pop.in reserves all rights not expressly granted in these Terms of Service.
Unless otherwise expressly stated in writing by pop.in, you are granted a limited, non-sublicensable license (i.e. a personal and limited right) to access and use the pop.in Service for your use only.
This license is subject to these Terms of Service and does not include any rights to any of the following: (a) any resale or commercial use of the pop.in Service or the Materials; (b) the distribution, public performance or public display of any Materials; (c) modifying or otherwise making any derivative uses of the pop.in Service or the Materials, or any portion of them; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (except page caching) of any portion of the pop.in Service, the Materials or any information contained in them, except as expressly permitted on the pop.in Service; or (f) any use of the pop.in Service or the Materials except for their intended purposes. Any use of the pop.in Service or the Materials except as specifically authorized in these Terms of Service, without the prior written permission of pop.in, is strictly prohibited and your failure to comply with them may have legal consequences which may include violating applicable laws, including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated in these Terms of Service, nothing in them shall be interpreted as conferring any license to intellectual property rights, whether by estoppel, implication or other legal principles. This license can be terminated (see Section 15).
If you elect to download a pop.in mobile application (“Application”), the following also applies: pop.in grants you a personal, revocable, non-exclusive, non-transferable license (without a right to sublicense) to download, install and use a copy of the Application on a single mobile device or computer that you own or control solely for your personal and professional use, subject at all times to these Terms of Service, including the restrictions on use of the pop.in Service and our right to remove End User Content at our discretion at any time. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Use of the Application is also subject to the following provisions:
When you download our Applications, you may do so through Apple Inc.’s (“Apple”) App Store. You acknowledge that the terms of these Terms of Service are between you and us and not with Apple or the App Store. As between Apple and us, we, and not Apple, are solely responsible for the pop.in Services, including the Application, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by Apple, including the Application. The following applies to any App Store Sourced Application (as defined above):
5. Individual Features and Services.
When using the pop.in Service, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted online and notified to you from time to time (the “Guidelines”). All these Guidelines are hereby incorporated by reference into these Terms of Service (i.e. they are made part of these Terms of Service).
6. Modification of these Terms of Service.
pop.in reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms of Service at any time (for example to reflect updates to the pop.in Service or to reflect changes in the law). If pop.in changes these Terms of Service, we will provide you notice of these changes, such as by sending an email, posting a notice on the pop.in Service or updating the “Effective Date” above. Please check these Terms of Service and any Guidelines periodically for those changes. Your continued use of the pop.in Service after the posting of changes constitutes your binding acceptance of such changes. For any material changes to these Terms of Service, the amended terms will automatically be effective thirty days after they are initially posted on the pop.in Service unless you contact us to discuss any questions or comments during that time period.
7. Intellectual Property Infringement.
If you believe that your copyright or other intellectual property rights have been infringed, we invite you to contact us at email@example.com. In addition to our Copyright Policy, pop.in may also at our sole discretion limit access to the pop.in Service and/or terminate the accounts of any users who infringe any intellectual property rights of others. In addition, pop.in accommodates and does not interfere with standard technical measures used by intellectual property rights owners to protect their materials.
pop.in, the pop.in logos and any other product or service name or slogan contained in the pop.in Service are trademarks of pop.in or our suppliers or licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of pop.in or the applicable trademark holder. Any authorized use of these trademarks must be in accordance with any guidelines that pop.in may provide you from time to time.
You may not use any metatags or any other hidden text utilizing “pop.in” or any other name, trademark or product or service name of Smiletime or pop.in without our prior written permission. In addition, the look and feel of the pop.in Service, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of pop.in and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the pop.in Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us or any other affiliation.
9. End User Content.
The pop.in Service allows end users to share live video of themselves, watch and comment on content with others, post in chat rooms, use Twitter, Facebook and other social media sharing features, respond to polls, questions, and calls to action made during broadcasts, and join as live video participants and contribute content during broadcasts on the pop.in Service. Using the pop.in Service constitutes you providing this “End User Content” (as defined below) to pop.in.
a. License to pop.in
Unless otherwise agreed to in a written agreement between you and pop.in that was signed by an authorized representative of pop.in:
By submitting, distributing or otherwise disseminating End User Content to and/or through the pop.in Service, you hereby grant to pop.in an irrevocable, worldwide, nonexclusive, royalty-free, perpetual, transferable and fully sublicensable right to use, host, convert for streaming, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and otherwise exploit, for no additional compensation, consideration, your End User Content, in any form, format, media or media channels now known or later developed or discovered, in connection with the distribution, publicity, promotion, advertising and exploitation of the End User Content, the pop.in Services and/or any other content distributed or exploited on or through the pop.in Services. Without in any manner limiting the above, the foregoing rights You granted by you to pop.in and our sublicensees include the right (but not the obligation) to use, exhibit, publish, display and otherwise distribute the names, voices, and/or likenesses of any individuals (including your own) contained in any End User Content that you submit, distribute or disseminate in connection with that End User Content, if we or they choose to and/or through the pop.in Service.
b. End User Representations and Warranties.
You are solely responsible for your End User Content and the consequences of posting or publishing it. By joining a broadcast or any other program or event on the pop.in Service, you represent, and warrant that: (1) you are the creator and owner of the End User Content or otherwise have sufficient rights and authority to grant the rights granted herein; (2) your End User Content does not and will not (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, or libel any other person; (3) your End User Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code or (4) unless you have received prior written authorization, your End User Content specifically does not contain any confidential information of pop.in or third parties. pop.in reserves all rights and remedies against any end users who breach these representations and warranties.
c. Content is Uploaded and Broadcast at Your Own Risk.
pop.in uses reasonable security measures in order to attempt to protect End User Content. However pop.in cannot guarantee that there will be no unauthorized copying or distribution of End User Content nor will pop.in be liable for any copying or usage of the End User Content not authorized by pop.in. You hereby release and forever waive any claims you may have against pop.in for any such unauthorized copying or usage of the End User Content, under any theory. THE SECURITY MEASURES TO PROTECT END USER CONTENT USED BY POP.IN HEREIN ARE PROVIDED AND USED “AS-IS” AND WITH NO WARRANTIES OR ASSURANCES THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, DISABLEMENTS OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.
d. Prevention of Unauthorized Use of Your Account.
Unless expressly permitted in writing by pop.in, you may not sell, rent, lease, share or provide access to your account to any third party, including without limitation charging any remuneration (e.g. money) to any third party for access to administrative rights on your account. pop.in reserves all available legal rights and remedies to prevent unauthorized use of the pop.in Service, including, but not limited to, technological barriers, IP mapping, and in serious cases directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
You agree that your End User Content will comply with the FTC’s Guidelines Concerning the Use of Testimonials and Endorsements in Advertising (available at http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf) (“Guidelines”). For example, if you have been paid or provided with free products in exchange for discussing or promoting a product or service through the pop.in Service, or if you are an employee of a company and you decide to discuss or promote that company’s products or services through the pop.in Service, you agree to comply with the Guidelines’ requirements for disclosing such relationships. You, and not pop.in, are solely responsible for any endorsements or testimonials you make regarding any product or service through the pop.in Service.
10. Third Party Content.
pop.in is a platform and may provide other third party content on the pop.in Services and may provide links to Web pages and content of third parties (collectively the “Third-Party Content”) as a service to those interested in this information. pop.in does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. Please be aware that we do not create Third Party Content, nor we do not update or monitor it, therefore we are not responsible for any Third Party Content on the pop.in Service. Users use such Third-Party Content at their own risk. The pop.in Service may include links or references to other web sites or services solely as a convenience to Users (“Reference Sites”). pop.in does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the pop.in are solely between you and such advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.
11. Prohibited Conduct.
The pop.in Service includes interactive areas or services (“Interactive Areas”), such as live video sharing, games, co-viewing, chat boxes, polls, calls to action, questions and the ability to join broadcasts or any other program or event on the pop.in Service as a guest in which you or other users may create, or post, stream and/or otherwise disseminate content, messages, materials, data, information, text, music, sound, photos, videos, graphics, applications, code or other items or materials on the pop.in Service (collectively, “End User Content”). You are solely responsible for your use of such Interactive Areas and use them at your own risk. BY USING THE POP.IN SERVICE, INCLUDING THE INTERACTIVE AREAS, YOU AGREE NOT TO VIOLATE ANY LAW, CONTRACT, INTELLECTUAL PROPERTY OR OTHER THIRD-PARTY RIGHT OR COMMIT A TORT, AND THAT YOU ARE SOLELY RESPONSIBLE FOR YOUR CONDUCT WHILE ON THE POP.IN SERVICE.
You agree that you will comply with these Terms of Service and will not:
Further, BY USING THE POP.IN SERVICE, INCLUDING THE INTERACTIVE AREAS, YOU AGREE NOT TO post, upload to, transmit, distribute, store, create or otherwise publish through the pop.in Service any of the following:
a. Account and Password.
While pop.in uses reasonable security precautions, you are solely responsible for maintaining the confidentiality of your account and password, for restricting access to your computer and for all activities that occur under your account or password. Please make sure you provide to pop.in on registration and at all other times information which will be true, accurate, current, complete and kept up to date to the best of your ability.
If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then you must immediately notify pop.in at firstname.lastname@example.org
You may only use one active pop.in account at a time. We use various methods to discover whether multiple accounts are controlled by the same individual. We reserve the right to terminate any or all multiple accounts controlled by a single individual and to withhold any prizes from such individuals.
b. Third Party Accounts.
pop.in may permit you to register for and log onto the pop.in Service via certain third party social networks, such as by using Facebook Connect. If you log in via such social networks, the profile information connected to the account you use to log into the pop.in Service, including your name, may be used by pop.in in order to provide and support your account. You also acknowledge and agree that pop.in may publish information regarding your use of the pop.in Service to and in connection with any such third party social network with which you use the pop.in Service (unless you tell us otherwise).
13. Kin; Kin Wallet; Kin Earn and Spend Opportunities
pop.in facilitates your access to a decentralized blockchain ecosystem stewarded by the Kik US, Inc. d/b/a Kin Ecosystem (the "Kin Ecosystem", and such decentralized blockchain ecosystem, the "Ecosystem") and use of the native token within the Kin Ecosystem ("Kin"). You can find out more about Kin and the Ecosystem at the following website: www.kinecosystem.org
You agree that (a) you are using Kin at your own risk, on an as-is and where-is basis; (b) you will abide by any policies made available by the Kin Ecosystem in respect of the Kin Ecosystem; (c) pop.in is not representing or warranting that Kin has any real monetary value; (d) pop.in may discontinue its integration of Kin or the Kin Ecosystem within the pop.in app at any time for any reason; and (e) pop.in is not responsible for any Kin applications or opportunities developed by third parties.
(1) Kin Wallet. We may make available wallet services within the pop.in app for you to store Kin, including Kin that you have earned through pop.in. The wallet is accessible to any person that has access to your account with us. Accordingly, you acknowledge and agree that it is your responsibility to maintain the safety and security of ability to sign in to pop.in and that any person having access to your account may be able to spend Kin that you have stored in your wallet.
(2) Kin Native Earn and Spend Opportunities. We may make available to you opportunities from us or third parties to earn and spend Kin. While some of these opportunities will be integrated within the pop.in application and, accordingly, may appear as though they are part of the pop.in app, some of these opportunities are from third parties and not pop.in. While we may bring to your attention that an opportunity is made available by a third party, it is your responsibility to carefully review each opportunity.
(3) Kin Marketplace Earn and Spend Opportunities. We may make available to you access to the marketplace that is made available by the Kin Ecosystm (the "Kin Marketplace), where you may explore opportunities to earn and spend Kin. You acknowledge and agree that these opportunities are not endorsed by us. It is your sole responsibility to exercise judgement in evaluating and participating in any such opportunities and we are not responsible for any earn and spend opportunities made available on the Kin Marketplace.
(4) Irreversibility of Kin Transactions. You acknowledge that Kin transactions, including each time you spend or transfer Kin, are irreversible and that it is your sole responsibility to ensure you make each decision to spend or transfer Kin carefully.
Users of the pop.in Service may from time to time, and subject to pop.in’s sole discretion, earn credit (such as Kin or a gift card to Amazon.com) for defined actions, such as winning a game. These defined actions may also include further requirements such as playing a game a certain number of times.
Furthermore the user may earn credits for successful invites of other users. An invite is successful and potentially eligible for being rewarded with credits under the condition of this Terms of Service, if the user follows the invite link or uses the invite code and subsequently performs and completes the defined actions.
pop.in is entitled to change the offering of Kin, gift cards and/or other rewards available, and to reduce and/or increase the credits required for Kin, gift card and/or other reward purchases.
Gift cards and/or other rewards received by the user are subject to any terms and conditions of the issuer of such gift cards and/or other rewards, for example in regard to term of their validity.
Gift cards shall be remitted electronically. Once remitted to user, pop.in takes no further responsibility of any kind.
pop.in reserves the right, without notice and in our sole discretion, to terminate your license to use the pop.in Service and to block or prevent your future access to and use of the pop.in Service. This includes pop.in having the ability to terminate or to suspend your access to any purchased products or services. Your only remedy with respect to any dissatisfaction with (i) the pop.in Service, (ii) any term of these Terms of Service, (iii) any policy or practice of pop.in in operating the pop.in Service, or (iv) any content or information transmitted through the pop.in Service, is to terminate your account and discontinuing use of any and all parts of the pop.in Service. In serious cases of breach of these Terms of Service (for example, infringement of pop.in’s intellectual property rights or actions causing it financial loss), pop.in may consider it appropriate to take legal action against you (though we will try to resolve matters amicably with you if possible).
The following section only applies to you if you are resident in the USA or elsewhere in the world (but does not apply if you are a consumer resident in the European Union):
You agree to indemnify, defend, and hold harmless pop.in, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the pop.in Service, any End User Content you post, store or otherwise transmit in or through the pop.in Service, your violation of the rights of any third party, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. pop.in reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify pop.in, and you agree to cooperate with pop.in’s defense of these claims. pop.in will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
17. Disclaimers; No Warranties.
The following section only applies to you if you are resident in the USA or elsewhere in the world (but does not apply if you are a consumer resident in the European Union):
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE POP.IN SERVICE AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY POP.IN; (B) POP.IN, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS (“POP.IN PARTIES”) DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE POP.IN SERVICE, INCLUDING ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN; (C) POP.IN DOES NOT REPRESENT OR WARRANT THAT CONTENT OR MATERIALS ON THE POP.IN SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE; (D) POP.IN IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY; AND (E) WHILE POP.IN ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE POP.IN SERVICE SAFE, POP.IN CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE POP.IN SERVICE OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM POP.IN OR THROUGH THE POP.IN SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 15, THE TERM “POP.IN” INCLUDES POP.IN’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
18. Limitation of Liability and Damages.
Users in the USA and rest of the world (non-EU):
The following section only applies to you if you are resident in the USA or elsewhere in the world (but does not apply if you are a consumer resident in the European Union):
a. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL POP.IN OR THE POP.IN PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE POP.IN SERVICE, THE CONTENT OR THE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM POP.IN, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO POP.IN’S RECORDS, PROGRAMS OR SERVICES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF POP.IN, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE POP.IN SERVICE EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE POP.IN SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
b. Reference Sites.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN POP.IN AND RECEIVED THROUGH OR ADVERTISED ON THE POP.IN SERVICE OR RECEIVED THROUGH ANY REFERENCE SITES.
c. Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT POP.IN HAS OFFERED THE POP.IN SERVICES, MATERIALS AND OTHER CONTENT AND INFORMATION, SET ITS PRICES, AND ENTERED INTO THESE TERMS OF SERVICE IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND POP.IN, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND POP.IN. POP.IN WOULD NOT BE ABLE TO PROVIDE THE POP.IN SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
d. Users in the European Union.
The following section only applies to you if you are a consumer resident in the European Union: Neither pop.in and the pop.in Parties in all cases, nor you (if you are an individual customer), will be responsible for: (i) losses that were not caused by any breach on their or your part; (ii) any indirect or consequential losses (including loss of profits, revenue, contracts, anticipated savings, data, goodwill or wasted expenditure); or (iii) any indirect or consequential losses that were not foreseeable by both you and us when the Terms of Service were agreed or updated as applicable. If you are a Subscribing Organization (as defined in section 1 of these Terms of Service) then you are not granted any rights under this section.
19. Applicable Law and Venue
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH POP.IN AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM POP.IN.
You and pop.in agree to arbitrate any dispute arising from these Terms of Service or your use of the pop.in Service, except that you and pop.in are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and pop.in agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to pop.in shall be sent to Smiletime, Inc. Attn: Legal, 8928 Ellis Ave, Los Angeles, CA 90034. You and pop.in further agree: to attempt informal resolution prior to any demand for arbitration; that any arbitration will occur in Los Angeles County, California; that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and that the state or federal courts in Los Angeles County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by these Terms of Service and the laws of the State of California and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, you and pop.in will not commence against the other a class action, class arbitration or other representative action or proceeding.
pop.in may provide you with notices, including those regarding changes to these Terms of Service, by email, regular mail or postings on the pop.in Service. Notice will be deemed given twenty-four hours after email is sent, unless pop.in is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the pop.in Service. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the pop.inService is deemed given 30 days following the initial posting.
The failure of either you or us to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms of Service will be effective only if in writing and signed by the relevant party.
If any provision of these Terms of Service or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then for both you and us that provision will be limited or eliminated from these Terms of Service to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
These Terms of Service and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by pop.in without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.
Upon termination of these Terms of Service, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms of Service, and will not be deemed to limit or affect any of the provisions of it.
g. Entire Agreement.
If you are a consumer resident in the European Union and you disagree with the above, we encourage you contact us as soon as possible after you start using the pop.in Service at email@example.com since otherwise they will be binding on you after a reasonable time period (usually 30 days unless there are exceptional circumstances).
YOU AND POP.IN AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE POP.IN SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The pop.in Service is offered by Smiletime, Inc., located at: 8928 Ellis Ave, Los Angeles, CA 90034 and email: help@Smiletime.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.