Pokgear Inc. Terms of Service
Last Updated January 7, 2015
Welcome, and thank you for your interest in (“Pokgear”, “company”, “we”, “us” or “our”) and our mobile applications, website located at pokgear.com (the “Site”), and other services provided by us (collectively, together with the Site and our mobile applications, our “Services”), including any materials uploaded or otherwise available on the Services (collectively, the “Content”). These Terms of Service are a legally binding contract between you and Pokgear governing you access to and use of the Services.
These Terms of Service provide that all disputes between you and Pokgear will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be as determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the arbitration agreement below for the details regarding your agreement to arbitrate any disputes with Pokgear.
Pokgear provides a service where users may create customized pokemons and send them to their DS/3DS.
You must be at least thirteen years of age to use the Services. By agreeing to these Terms, you represent and warrant to us that: (i) you are at least thirteen years of age; (ii) you have not previously been suspended or removed from the Services; (iii) no applicable law prohibits you from receiving the Services; (iv) you have the authority to form a binding contract with Pokgear; and (v) your registration and your use of the Services is in compliance with any and all applicable laws and regulations.
If you are using the Services on behalf of another legal entity, you represent and warrant that you have the authority to bind such entity to these Terms and you agree to be bound by these Terms on behalf of such entity.
3. Discontinuation and Modifications of the Services
Pokgear may temporarily or permanently change or stop providing the Services or any part or parts of the Services to you, other users, or both. We reserve the right to modify or discontinue the Services at any time. We will have no liability whatsoever on account of any change to the Services or any suspension or termination of your access to or use of the Services.
Your use of the Services is subject to any and all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to on the Services (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer or rules applicable to particular features, information, or Content on the Services, subject to Section 15. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
5. User Content
a. Your Content Generally. Certain features of the Services may permit users to post Content, including photos, images, data, text, and other types of works and to publish such Content on the Services. You retain your copyright and any other proprietary rights you may have in any Content you submit, post, publish, or display on or through the Services.
b. Limited Grant to Pokgear. If you submit, post, publish or display Content on or through the Services, you grant a worldwide, non-exclusive, royalty-free, transferable, sublicensable right and license to Pokgear to host, store, transfer, display, perform, reproduce, modify, publish, create derivative works of, and distribute such Content in any and all formats and channels we choose in our discretion at any time. Any such use of your User Content by Pokgear may be without compensation paid to you.
c. Limited License Grant to Other Users. By posting and sharing your Content with another user of the Services, you hereby grant that user a non-exclusive license to access and use such Content as permitted by these Terms and the functionality of the Services.
d. Representations and Warranties about Your Content. By posting and publishing your Content, you affirm, represent, and warrant that:
i. you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and authorize Pokgear and users of the Services to use and distribute Content you submit, post, publish, or display on or through the Services as necessary to exercise the licenses granted by you in this Section 5 and in the manner contemplated by Pokgear and these Terms; and
ii. Content you submit, post, publish, or display on or through the Services, and the use thereof as contemplated herein, does not and will not: (i) 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 (ii) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person.
e. Content Disclaimer. You are solely responsible and liable for your use of Content. We are under no obligation to edit, monitor, or control Content that you or others submit, post, publish, or display on or through the Services, and we will not be in any way responsible or liable for such Content. We make no representations and disclaim any obligations with respect to the completeness, truthfulness, accuracy, or reliability of any Content. We do not endorse any Content, including, for instance, opinions you or other users upload to the Services. You may see or hear Content that you may find offensive, harmful, inaccurate, deceptive, or otherwise inappropriate through your use of the Services. Pokgear will not be liable under any circumstances for any claims, losses or damages relating to any Content. For instance, Pokgear will not be liable for any claims, losses, or damages arising from errors or omissions in Content or damage resulting from use of Content. If you use or rely on any Content, you do so at your own risk. Pokgear may, however, at any time and without prior notice, screen, remove, edit, or block any Content that in our sole judgment violates these Terms or is otherwise objectionable. You agree to waive, and hereby do waive, any legal or equitable remedies you have or may have against Pokgear with respect to Content. If notified by a user or content owner that Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the Content, which we reserve the right to do at any time and without notice. For clarity, Pokgear does not permit copyright-infringing activities on the Services.
6. License from Pokgear
Conditioned upon your acceptance of and compliance with these Terms, Pokgear grants you a worldwide, royalty-free, non-assignable, non-exclusive license to access and use the Services.
7. Pokgear Ownership and Proprietary Rights
The Services are owned and operated by Pokgear. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Services (the “Materials”) provided by Pokgear are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Services are the property of Pokgear or our third-party licensors. Except as expressly authorized by Pokgear, you may not make use of the Materials. Pokgear reserves all rights to the Materials not granted expressly in these Terms. These Terms do not include a grant of trademark or other intellectual property rights and you may not use the Pokgear name, trademarks, or any other brand features without express, written permission.
We welcome any feedback you may have about Pokgear. You are under no obligation to provide feedback and you do so on a purely voluntary basis. If you submit any suggestions, comments, or other feedback, you acknowledge that such feedback is Content you submit, post, publish or display on or through the Services, subject to the license grant and disclaimers of Section 5. We may use your feedback as we wish without penalty or payment to you.
9. Restrictions on Content and Use of the Services
By accessing or using the Services you agree not to:
(i) reverse engineer or otherwise attempting to discover the source code of the Services or any part thereof except to the extent that such activity is expressly permitted by applicable law
(ii) interfere with security-related features of the Services, including without limitation by (i) breaching, disabling or circumventing security and authentication measures that prevent or limit use or copying of any Content, (ii) accessing, tampering with, or using non-public areas of the Services or Pokgear’s computer systems or networks, or (iii) probing, scanning, or testing the vulnerability of any system or network;
(iii) perform any fraudulent activity including (i) impersonating any person or entity, (ii) forging any headers or any header information, (iii) claiming false affiliations, (iv) accessing the Services accounts of others without permission, (v) falsifying your age or date of birth, or (vi) sending any deceptive information;
(iv) interfere with, or disrupt, the operation of the Services or the enjoyment of any user by, without limitation, (i) uploading or otherwise disseminating a virus, adware, spyware, worms, or other malicious code (ii) sending excessive or unsolicited messages, email, or other communications to, on, or through the Services, (iii) interfering with or creating an undue burden on the Services or designing any Content to do the same, (iv) making unsolicited offers or advertisements to other users of the Services, (v) collecting personal information about users or third parties without their consent, (vi) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Services, or (vii) violating the regulations, policies, or procedures of such networks, equipment, or servers;
(v) violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
(vi) post, upload, or distribute any Content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
(vii) sell or otherwise transfer the access granted herein or any Materials (as defined in Section 7) or any right or ability to view, access, or use any Materials;
(vii) use the Services for any illegal purpose, or in violation of any local, state, national, or international law; or
(viii) attempt to do any of the foregoing in this Section 9, or assist or permit any persons in engaging in any of the activities described in this Section 9.
10. Pokgear Disclosure
We reserve the right to use and disclose any information which we believe, in our discretion, is necessary for any of the following purposes:
(i) to comply with applicable law, regulation, legal process or government order;
(ii) to enforce or investigate potential violations of these Terms;
(iii) to protect Pokgear and its users against fraud, technical or security concerns, or threats to property interests; or
(iv) to communicate with you and other users.
11. DMCA Policy
We comply with the provisions of the Digital Millennium Copyright Applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Services, you may contact our Designated Agent at the following address:
Pokgear Industries, Inc.
If you believe that any Content or other materials hosted by or distributed through the Services infringe intellectual property rights, please provide us with the following information:
(i) a physical or electronic signature of the owner of the copyright or a person authorized to act on their behalf;
(ii) identification of the copyrighted work that you claim has been infringed;
(iii) identification of the material that you claim to be infringing and where it is located on the Services;
(iv) your name, address, telephone number, and email address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) a statement by you that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on the copyright owner’s behalf.
We may remove Content from the Services at any time for any or for no reason, including if Content may infringe on third party rights. Pokgear may designate users as “repeat infringers” in its sole discretion and terminate their accounts without notice.
In order to terminate these Terms, delete the mobile application and stop using the Services.
If you violate any provision of these Terms, your license to use the Services will terminate automatically. We may suspend or terminate your Services accounts at any time with or without notice. We also reserve the right to discontinue the Services at any time (including, without limitation, by limiting or discontinuing certain features of the Services) without notice to you. We will have no liability whatsoever on account of any suspension or termination of your access to or use of the Services.
Upon termination of these Terms, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections: 5, 7, 8, 9, 13, 14, 16, and 17.
13. Disclaimers and Limitations of Liability
a. The Services are Available “AS-IS”
You understand and agree that the Services and all materials and Content available on or through the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis and your access to and use of the Services and Content is at your own risk. To the maximum extent permitted under applicable law, Pokgear and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (the “Pokgear Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, OR ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE Pokgear ENTITIES DO NOT WARRANT THAT THE SERVICES OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, SECURE, COMPLETE, ACCURATE, AVAILABLE, TIMELY, RELIABLE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE Pokgear ENTITIES OR THE SERVICEs THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICEs, YOUR DEALINGS WITH OTHER USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
b. Third Party Services and Links
The Services may contain links to third-party websites or resources which are not under our control and you acknowledge and agree that the Pokgear Entities do not endorse and are not responsible or liable for their content.
Pokgear may provide tools through the Services that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Pokgear with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using these tools, you agree that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of your exported information.
c. Limitation of Liability
IN NO EVENT WILL THE JELLY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, FOR EXAMPLE, FOR ANY LOSS OF PROFITS OR REVENUES, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) STATUTE, OR OTHER LEGAL THEORY (WHETHER OR NOT THE JELLY ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR RELATING TO (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES OR ANY CONTENT ON THE SERVICES; (ii) ANY CONTENT POSTED BY A THIRD PARTY OR OTHERWISE AVAILABLE ON THE SERVICE; AND (iii) CONDUCT OF THIRD PARTY USERS OF THE SERVICE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE JELLY ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF (i) THROUGH (iii) IN THE PRECEDING PARAGRAPH OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (i) THE AMOUNTS THAT YOU HAVE PAID TO JELLY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) ONE HUNDRED U.S. DOLLARS.
THE ABOVE LIMITATION APPLIES EVEN IF A REMEDY SET FORTH IN THESE TERMS HAS FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS.
You agree that you will be responsible for your use of the Services, and you agree to defend, indemnify, and hold harmless Pokgear and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Services; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
15. Modifications of these Terms
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, you will be required to accept such modified terms in order to continue to use the Services. Material modifications are effective upon your acceptance of such the modified Terms. Immaterial modifications are effective upon publication. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect that the time the dispute arose.
16. Dispute Resolution and Arbitration
a. Generally. In the interest of resolving disputes between you and Pokgear in the most expedient and cost effective manner, you and Pokgear agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND JELLY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
b. Exceptions. Notwithstanding Subsection a, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
c. Arbitrator. Any arbitration between you and Pokgear will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Pokgear.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Pokgear’s address for Notice is listed in Section 11. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Pokgear may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Pokgear shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Pokgear shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Pokgear in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
e. Fees. In the event that you commence arbitration in accordance with these Terms, Pokgear will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Pokgear for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f. No Class Actions. YOU AND JELLY 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 Pokgear 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.
g. Modifications. In the event that Pokgear makes any future change to this arbitration provision (other than a change to Pokgear’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Pokgear’s address for Notice, in which case your account with Pokgear shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
h. Enforceability. If Subsection f is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 17.d shall govern any action arising out of or related to these Terms.
Pokgear’s failure to require and enforce your compliance with any provision of these Terms does not affect Pokgear’s right to require and enforce your compliance with that provision in the future. The failure of Pokgear to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision and a waiver of any breach or default of these Terms will not be deemed a waiver of any subsequent breach or default or a waiver of the provision itself.
If a court or other administrative body rules that any provision of these Terms is invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
c. Governing Law
These Terms will be governed by the laws of the State of California without regard to its conflict of law provisions.
To the extent that any lawsuit or court proceeding is permitted under these Terms, you agree to submit to the exclusive jurisdiction of the federal or state courts located in San Francisco County, California, United States to litigate any disputes with Pokgear related to these Terms.
e. Entire Agreement
f. Consent to Electronic Communications
These Services are operated and provided by Pokgear Industries Inc. If you have any questions about these Terms, please contact us. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.