Terms of Service Agreement
Last Updated Date: August 17, 2022
Welcome and thank you for your interest in Poly Corporation ("Poly",
"we" or "us"). This Terms of Service Agreement ("Terms of
Service"), together with any applicable Supplemental Terms (as defined
in Section 1.1) (collectively, with the Terms of Service, the
"Agreement") describes the terms and conditions that apply to your
use of (i) the website located at https://www.withpoly.com
(collectively, the "Website") and (ii) the services or other
resources available on or enabled via our Website, including our
artificial intelligence-powered design asset creation platform
(collectively, with the Website, the "Services").
PLEASE READ THIS AGREEMENT CAREFULLY. THIS TERMS OF SERVICE GOVERNS THE
USE OF THE SERVICE AND APPLIES TO ALL INTERNET USERS VISITING THE
SERVICE. BY ACCESSING OR USING THE SERVICE IN ANY WAY, INCLUDING BY
CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS,
AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ,
UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE
OF LEGAL AGE TO FORM A BINDING CONTRACT WITH POLY, AND (3) YOU HAVE THE
AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF
THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE
THIS AGREEMENT, AND IN WHICH CASE, ALL REFERENCES TO "YOU" OR
"YOUR" IN THIS AGREEMENT WILL ALSO BE DEEMED TO REFER TO SUCH
ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU
MAY NOT ACCESS OR USE THE SERVICES.
Notice of Automatic Renewal: IF YOU SUBSCRIBE TO ANY
SERVICE FOR A TERM (THE "INITIAL TERM"), THEN YOUR SUBSCRIPTION WILL BE
AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE
INITIAL TERM AT POLY'S THEN-CURRENT FEE FOR SUCH SERVICE UNLESS YOU OPT
OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 7.5 (AUTOMATIC
RENEWAL) BELOW.
Notice of Arbitration: PLEASE BE AWARE THAT SECTION 13
CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND
POLY. AMONG OTHER THINGS, SECTION 13 INCLUDES AN AGREEMENT TO ARBITRATE
WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU
AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 13
ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION
13 CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1)
YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF
AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN
ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR
RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE
ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR
CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR
USE OF THE SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE
LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION
ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY
EXCLUDED FROM THIS AGREEMENT.
Notice of Acceptance of Changes: PLEASE NOTE THAT The
Agreement IS subject to change by Poly in its sole discretion at any
time. When changes are made, Poly will make a new copy of the Terms of
Service and/or Supplemental Terms, as applicable, available on the
Website and within any affected Application. We will also update the
"Last Updated" date at the top of the Agreement. If we make any material
changes, and you have registered with us to create an Account (as
defined in Section 2.1 (Registering Your Account) below) we may also
send an e-mail to you at the last e-mail address you provided to us
pursuant to the Agreement. Unless otherwise stated in such update, any
changes to the Agreement will be effective immediately for new users of
the Service and will be effective thirty (30) days after posting notice
of such changes on the Website for existing Registered Users, provided
that any material changes shall be effective for Registered Users who
have an Account with us upon the earlier of thirty (30) days after
posting notice of such changes on the Website or thirty (30) days after
dispatch of an e-mail notice of such changes to Registered Users
(defined in Section 2.1 (Registering Your Account) below). Poly may
require you to provide consent to the updated Agreement in a specified
manner before further use of the Service is permitted. IF YOU DO NOT
AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU
SHALL STOP USING THE SERVICE. OTHERWISE, YOUR CONTINUED USE OF THE
SERVICE CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGE(S).
- USE OF THE SERVICES. The Services and the information and
content available on the Services are protected by copyright laws
throughout the world. Unless otherwise specified by Poly in a
separate license, your right to access and use any and all of the
Service is subject to the Agreement.
- Supplemental Terms. Your use of, and participation in, certain
Services may be subject to additional terms ("Supplemental
Terms") and such Supplemental Terms will either be listed in the
Terms of Service or will be presented to you for your acceptance
when you sign up to use the supplemental Service. If the Terms of
Services are inconsistent with the Supplemental Terms, then the
Supplemental Terms shall control with respect to such Service.
- Updates. You understand that the Services are evolving. You
acknowledge and agree that Poly may update the Services with or
without notifying you. You may need to update third-party software
from time to time in order to use the Services.
- Poly Communications. By entering into this Agreement or using
the Services, you agree to receive communications from us, including
via e-mail. Communications from us and our affiliated companies may
include, but are not limited to, operational communications
concerning your Account or the use of the Services, updates
concerning new and existing features on the Services, communications
concerning promotions run by us, and news concerning Poly and
industry developments.
- REGISTRATION.
- Registering Your Account. In order to access certain
features of the Services you may be required to become a
Registered User. For purposes of the Agreement, a "Registered
User" is a user who has registered an account on the Website
("Account").
- Registration Data. In registering an account on the Website, you
agree to (a) provide true, accurate, current, and complete
information about yourself as prompted by the registration form (the
"Registration Data"), and (b) maintain and promptly update the
Registration Data to keep it true, accurate, current, and complete.
You represent that you are (i) at least eighteen (18) years old;
and (ii) not a person barred from using the Service under the laws
of the United States, your place of residence or any other
applicable jurisdiction. You are responsible for all activities that
occur under your Account. You agree that you shall monitor your
Account to restrict use by minors, and you will accept full
responsibility for any unauthorized use of the Service by minors.
You are responsible for any use of your credit card or other payment
instrument (e.g., PayPal) by minors. You may not share your Account
or password with anyone, and you agree to notify Poly immediately of
any unauthorized use of your password or any other breach of
security. If you provide any information that is untrue, inaccurate,
not current or incomplete, or Poly has reasonable grounds to suspect
that any information you provide is untrue, inaccurate, not current
or incomplete, Poly has the right to suspend or terminate your
Account and refuse any and all current or future use of the Service
(or any portion thereof). You agree not to create an Account using a
false identity or information, or on behalf of someone other than
yourself. You agree that you shall not have more than one Account at
any given time. You agree not to create an Account or use the
Service if you have been previously removed by Poly, or if you have
been previously banned from any of the Service.
- Your Account. Notwithstanding anything to the contrary herein,
you acknowledge and agree that you shall have no ownership or other
property interest in your Account, and you further acknowledge and
agree that all rights in and to your Account are and shall forever
be owned by and inure to the benefit of Poly.
- Necessary Equipment and Software. You must provide all equipment
and software necessary to connect to the Service, including but not
limited to, a mobile device that is suitable to connect with and use
the Service, in cases where the Service offer a mobile component.
You are solely responsible for any fees, including Internet
connection or mobile fees, that you incur when accessing the
Service.
- CONTENT.
- Ownership. Our Services allow you to generate, make
available and store certain content, which may include
(depending on the scope of our Services from time to time)
graphics, video, tags and/or other materials (collectively,
"Content"). You may use the Content that you generate during
your subscription term perpetually and for free for
non-commercial purposes, and for commercial purposes as well if
you purchase a commercial subscription (see Sections 3.2 and 3.3
below for the specifics of our license grants). As between you
and Poly, Poly owns all right, title and interest in and to the
Content, which is an output of Poly's AI technologies. To the
extent you acquire any right, title and interest in or to
Content, you hereby assign all of the foregoing to Poly.
- Non-Commercial License. Subject to the terms and conditions of
this Agreement, Poly hereby grants you a non-exclusive right and
license: during the term of this Agreement, to use the Services to
create up to the number of downloads permitted under your tier of
subscription, and after the term of this Agreement on a perpetual
basis, to use, reproduce, disclose, modify, create derivative works
from, and otherwise exploit, Content, in each case in accordance
with the specifications set forth on the Website and your tier of
subscription, and solely for your personal, non-commercial use.
- Commercial License. Notwithstanding Section 3.2 above, subject
to the terms and conditions of this Agreement, Poly hereby grants
you a non-exclusive right and license: during the term of this
Agreement to use the Services to create up to the number of
downloads permitted under your tier of subscription, and after the
term of this Agreement on a perpetual basis, to use, reproduce,
disclose, modify, create derivative works from, and otherwise
exploit (whether for personal or commercial use, including any
commercial marketing of products or for other commercial purposes),
Content, in each case in accordance with the specifications set
forth on the Website and your tier of subscription.
- Storage. Unless expressly agreed to by Poly in writing
elsewhere, Poly has no obligation to store any Content that you
access on the Services. Poly has no responsibility or liability for
the deletion or accuracy of any Content; the failure to store,
transmit or receive transmission of Content; or the security,
privacy, storage, or transmission of other communications
originating with or involving use of the Services. You agree that
Poly retains the right to create reasonable limits on Poly's use and
storage of the Content, such as limits on file size, storage space,
processing capacity, and similar limits described on the Website and
as otherwise determined by Poly in its sole discretion.
- Records. During the term of this Agreement and for five (5)
years thereafter, you shall maintain complete and accurate records
of your use of the Services, including without limitation the number
and location of downloaded or shared Content, and Poly or its
authorized representative may, upon reasonable notice, but in no
event more than once per calendar year, audit and review such
records or perform such other inspection procedures as reasonably
necessary to confirm your compliance with the terms and conditions
of this Agreement. If such audit reveals that you are using the
Services beyond the scope of your tier of subscription or in
violation of any term of this Agreement, without limiting any of
Poly's other remedies, you shall promptly pay Poly the then-current
fee for the Subscription.
- OWNERSHIP.
- The Service. Except as expressly stated herein, you agree
that Poly and its suppliers own all rights, title and interest
in and to the Service (including but not limited to, any
computer code, themes, objects, concepts, artwork, images,
animations, sounds, musical compositions, audiovisual effects,
methods of operation, moral rights, documentation, and
software). You will not remove, alter or obscure any copyright,
trademark, service mark or other proprietary rights notices
incorporated in or accompanying any of the Services.
- Trademarks. Poly's name and all related graphics, logos, service
marks and trade names used on or in connection with any the Service
or in connection with the Services are the trademarks of Poly and
may not be used without permission in connection with your, or any
third-party, products or services. Other trademarks, service marks
and trade names that may appear on or in the Services are the
property of their respective owners.
- Feedback. You agree that submission of any ideas, suggestions,
documents, and/or proposals to Poly through its suggestion,
feedback, forum, or similar pages ("Feedback") is at your own
risk and that Poly has no obligations (including without limitation
obligations of confidentiality) with respect to such Feedback. You
represent and warrant that you have all rights necessary to submit
the Feedback. You hereby grant to Poly a fully paid, royalty-free,
perpetual, irrevocable, worldwide, non-exclusive, and fully
sublicensable right and license to use, reproduce, perform, display,
distribute, adapt, modify, re-format, create derivative works of,
and otherwise commercially or non-commercially exploit in any
manner, any and all Feedback, and to sublicense the foregoing
rights, in connection with the operation and maintenance of the
Service and/or Poly's business.
- USER CONDUCT AND CERTAIN RESTRICTIONS. As a condition of use,
you agree not to use the Service for any purpose that is prohibited
by this Agreement or by applicable law. You shall not (and shall not
permit any third party) to: (a) license, sell, rent, lease,
transfer, assign, reproduce, distribute, host or otherwise
commercially exploit the Service, any portion of the Service, or any
Content made available to you on the Service except as expressly set
forth in Sections 3.2 and 3.3 above; (b) frame or utilize framing
techniques to enclose any trademark, logo, or other Service
(including images, text, page layout or form) of Poly; (c) use any
metatags or other "hidden text" using Poly's name or trademarks; (d)
modify, translate, adapt, merge, make derivative works of,
disassemble, decompile, reverse compile or reverse engineer any part
of the Service except to the extent the foregoing restrictions are
expressly prohibited by applicable law; (e) use any manual or
automated software, devices or other processes (including but not
limited to spiders, robots, scrapers, crawlers, avatars, data mining
tools or the like) to "scrape" or download data from any web pages
contained in the Website (except that we grant the operators of
public search engines revocable permission to use spiders to copy
materials from the Website for the sole purpose of and solely to the
extent necessary for creating publicly available searchable indices
of the materials, but not caches or archives of such materials); (f)
remove or destroy any copyright notices or other proprietary
markings contained on or in the Service; or (g) take any action
or (h) submit any queries or (i) create any derivative works of
Content on or through or from the Service that: (i) is unlawful,
threatening, abusive, harassing, defamatory, libelous, deceptive,
fraudulent, invasive of another's privacy, tortious, obscene,
offensive, or profane; (ii) constitutes unauthorized or unsolicited
advertising, junk or bulk e-mail; (iii) involves commercial
activities and/or sales, such as contests, sweepstakes, barter,
advertising, or pyramid schemes without Poly's prior written
consent; (iv) impersonates any person or entity, including any
employee or representative of Poly; or (v) interferes with or
attempts to interfere with the proper functioning of the Service or
uses the Service in any way not expressly permitted by this
Agreement. Without limiting the foregoing, except as expressly
stated herein, no part of the Service may be copied, reproduced,
distributed, republished, downloaded, displayed, posted or
transmitted in any form or by any means. The rights granted to you
in this Agreement are subject to your compliance with the
restrictions set forth in this section. Any future release, update
or other addition to the Service shall be subject to the Agreement.
Poly, its suppliers and service providers reserve all rights not
granted in the Agreement. Any unauthorized use of the Service
terminates the licenses granted by Poly pursuant to the Agreement.
- INVESTIGATIONS, MONITORING, & NO OBLIGATION TO PRE-SCREEN
CONTENT. Poly may, but is not obligated to, investigate, monitor,
pre-screen, remove, refuse, or review the Service and/or Content, at
any time. By entering into the Agreement, you hereby provide your
irrevocable consent to such monitoring. In the event that Poly
pre-screens, refuses or removes any Content, you acknowledge that
Poly will do so for Poly's benefit, not yours.
Without limiting the foregoing, Poly reserves the right to: (a)
remove or refuse to post any Content for any or no reason in our
sole discretion; (b) take any action with respect to any Content
that we deem necessary or appropriate in our sole discretion,
including if we believe that such Content violates this Agreement,
infringes any intellectual property right or other right of any
person or entity, threatens the personal safety of users of the
Service or the public, or could create liability for Poly; (c) take
appropriate legal action, including without limitation, referral to
and cooperation with law enforcement and/or other applicable legal
authorities, for any illegal or unauthorized use of the Service or
if Poly otherwise believes that criminal activity has occurred;
and/or (d) terminate or suspend your access to all or part of the
Service for any or no reason, including without limitation, any
violation of this Agreement. Upon determination of any possible
violations by you of any provision of the Agreement, Poly, may, at
its sole discretion immediately terminate your license to use the
Service, or change, alter or remove Content, in whole or in part,
without prior notice to you.
If Poly believes that criminal activity has occurred, Poly reserves
the right to, except to the extent prohibited by applicable law,
disclose any information or materials on or in the Service in Poly's
possession in connection with your use of the Service, to (i) comply
with applicable laws, legal process or governmental request, (ii)
enforce the Agreement, (iii) respond to any claims that Your Content
violates the rights of third parties, (iv) respond to your requests
for customer service, or (v) protect the rights, property or
personal safety of Poly, its Registered Users or the public, and all
enforcement or other government officials, as Poly in its sole
discretion believes to be necessary or appropriate. - FEES AND PURCHASE TERMS.
- Payment. You agree to pay all fees or charges to your Account in
accordance with the fees, charges and billing terms in effect at the
time a fee or charge is due and payable. You must provide Poly with
a valid credit card (Visa, MasterCard, or any other issuer accepted
by us) or PayPal account of a payment provider ("Payment
Provider"), or purchase order information, as a condition to
signing up for the Service. Your Payment Provider agreement governs
your use of the designated credit card or PayPal account, and you
must refer to that agreement, not this Agreement, to determine your
rights and liabilities. By providing Poly with your credit card
number or PayPal account and associated payment information, you
agree that Poly is authorized to immediately invoice your Account
for all fees and charges due and payable to Poly hereunder and that
no additional notice or consent is required. You agree to
immediately notify Poly of any change in your billing address or the
credit card or PayPal account used for payment hereunder. Poly
reserves the right at any time to change its prices and billing
methods, either immediately upon posting on the Service or by e-mail
delivery to you.
- Service Subscription Fees. You will be responsible for payment
of the applicable fee for any Service (each, a "Service
Subscription Fee") at the time you create your Account and select
your annual package (each, a "Service Commencement Date").
Except as set forth in the Agreement, all fees for the Services are
non-refundable. No contract will exist between you and Poly for the
Service until Poly accepts your order by a confirmatory e-mail,
SMS/MMS message, or other appropriate means of communication.
- Taxes. The payments required under Section 7.2 (Service
Subscription Fees) of this Agreement do not include any Sales Tax
that may be due in connection with the services provided under this
Agreement. If Poly determines it has a legal obligation to collect a
Sales Tax from you in connection with this Agreement, Poly shall
collect such Sales Tax in addition to the payments required under
Section 7.2 (Service Subscription Fees) of this Agreement. If any
services [or products], or payments for any services [or
products], under the Agreement are subject to any Sales Tax in any
jurisdiction and you have not remitted the applicable Sales Tax to
Poly, you will be responsible for the payment of such Sales Tax and
any related penalties or interest to the relevant tax authority, and
you will indemnify Poly for any liability or expense Poly may incur
in connection with such Sales Taxes. Upon Poly's request, you will
provide it with official receipts issued by the appropriate taxing
authority, or other such evidence that you have paid all applicable
taxes. For purposes of this section, "Sales Tax" shall mean any
sales or use tax and any other tax measured by sales proceeds that
is the functional equivalent of a sales tax where the applicable
taxing jurisdiction does not otherwise impose a sales or use tax.
- Withholding Taxes. You agree to make all payments of fees to
Poly free and clear of, and without reduction for, any withholding
taxes. Any such taxes imposed on payments of fees to Poly will be
your sole responsibility, and you will provide Poly with official
receipts issued by the appropriate taxing authority, or such other
evidence as we may reasonably request, to establish that such taxes
have been paid.
- Automatic Renewal. Your subscription will continue indefinitely
until terminated in accordance with the Agreement. After your
initial subscription period, and again after any subsequent
subscription period, your subscription will automatically commence
on the first day following the end of such period (each a "Renewal
Commencement Date") and continue for an additional
equivalent period, at Poly's then-current price for such
subscription. You agree that your Account will be subject to this
automatic renewal feature unless you cancel your subscription as set
forth below. If you elect to purchase a subscription from Poly, then
by subscribing, you authorize Poly to charge your Payment Provider
now, and again at the beginning of any subsequent subscription
period. Upon renewal of your subscription, if Poly does not receive
payment from your Payment Provider, you agree that Poly may either
terminate or suspend your subscription and continue to attempt to
charge your Payment Provider until payment is received (upon receipt
of payment, your Account will be activated and for purposes of
automatic renewal, your new subscription commitment period will
begin as of the day payment was received).
- Cancelling Subscriptions Purchased Via Poly. You may cancel your
subscription at least twenty four (24) hours prior to the Renewal
Commencement Date by logging into and going to the "Manage
Subscription" page under the User Menu. If you want to change or
terminate your subscription, please contact Poly at
support@withpoly.com, or log in and go to the "Change/Cancel
Membership" page on your "Account Settings" page.
- Effect of Cancellation. If you cancel your subscription, you may
use your subscription until the end of your then-current
subscription term; your subscription will not be renewed after your
then-current term expires. However, you will not be eligible for a
prorated refund of any portion of the subscription fee paid for the
then-current subscription period.
- Indemnification. You agree to indemnify and hold Poly, its
parents, subsidiaries, affiliates, officers, employees, agents,
partners, suppliers, and licensors (each, a "Poly Party")
harmless from any losses, costs, liabilities and expenses (including
reasonable attorneys' fees) relating to or arising out of any and
all of the following: (a) your use of, or inability to use, the
Services; (b) your violation of the Agreement; (c) your violation of
any rights of another party; or (d) your violation of any applicable
laws, rules or regulations. Poly reserves the right, at its own
cost, to assume the exclusive defense and control of any matter
otherwise subject to indemnification by you, in which event you will
fully cooperate with Poly in asserting any available defenses. This
provision does not require you to indemnify any of the Poly Parties
for any unconscionable commercial practice by such party or for such
party's fraud, deception, false promise, misrepresentation or
concealment, or suppression or omission of any material fact in
connection with the Website or any Service provided hereunder. You
agree that the provisions in this section will survive any
termination of your Account, the Agreement and/or your access to the
Services.
- DISCLAIMER OF WARRANTIES AND CONDITIONS.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT
PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR
SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS, WITH ALL FAULTS. THE POLY PARTIES EXPRESSLY
DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE
WEBSITE.
- POLY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1)
THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE
SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3)
THE CONTENT THAT MAY BE OBTAINED FROM USE OF THE SERVICE WILL BE
ACCURATE OR RELIABLE.
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE
SERVICE IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT
LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS
THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH
CONTENT.
- THE SERVICE MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER
DISRUPTIONS. POLY MAKES NO WARRANTY, REPRESENTATION OR CONDITION
WITH RESPECT TO SERVICE, INCLUDING BUT NOT LIMITED TO, THE QUALITY,
EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM
POLY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY
MADE HEREIN.
- From time to time, Poly may offer new "beta" features or tools with
which its users may experiment. Such features or tools are offered
solely for experimental purposes and without any warranty of any
kind, and may be modified or discontinued at Poly's sole discretion.
The provisions of this section apply with full force to such
features or tools.
- No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND
AGREE THAT POLY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO
HOLD POLY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES,
INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY
FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- LIMITATION OF LIABILITY.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE
THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL
THE POLY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR
DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES,
OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS
INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE, IN
EACH CASE WHETHER OR NOT POLY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION
WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR
MEETINGS WITH OTHER USERS OF THE SERVICE, ON ANY THEORY OF
LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE
SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES
RESULTING FROM ANY DATA, INFORMATION OR SERVICES PURCHASED OR
OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO
THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION
OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY
THIRD PARTY ON THE SERVICE; OR (e) ANY OTHER MATTER RELATED TO
THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT,
TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY. THE
FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY
OF A POLY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A
POLY PARTY'S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A POLY
PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, POLY
PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a)
THE TOTAL AMOUNT PAID TO Poly by you during the twelve-month period
prior to the act, omission or occurrence giving rise to such
liability; (b) $100; or (c) THE REMEDY OR PENALTY IMPOSED BY THE
STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON
LIABILITY SHALL NOT APPLY TO LIABILITY OF A POLY PARTY FOR (i) DEATH
OR PERSONAL INJURY CAUSED BY A POLY PARTY'S NEGLIGENCE; OR FOR (ii)
ANY INJURY CAUSED BY A POLY PARTY'S FRAUD OR FRAUDULENT
MISREPRESENTATION.
- Content. EXCEPT FOR POLY'S OBLIGATIONS TO PROTECT YOUR PERSONAL
DATA AS SET FORTH IN POLY'S PRIVACY POLICY, POLY ASSUMES NO
RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE
TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION
SETTINGS.
- Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO
YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT
APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE
ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN POLY
AND YOU.
- TERM AND TERMINATION.
- Term. The Agreement commences on the earlier of: (a) the
date you first used the Service or the date when you accept them
(as described in the preamble above), and will remain in full
force and effect while you use the Service, unless terminated
earlier in accordance with the Agreement.
- Termination of Service by Poly. You will have twenty four (24)
hours from the Service Commencement Date, or any Renewal
Commencement Date, for any Service hereunder, to cancel such
Service, in which case Poly will refund your Service Subscription
Fee, if already paid pursuant to Section 7.1 (Payment) or 7.2
(Service Subscription Fees), for the applicable Service. To do so,
you must email support@withpoly.com. Except as set forth above,
the Service Subscription Fee for any Service shall be
non-refundable. If timely payment cannot be charged to your Payment
Provider for any reason, if you have materially breached any
provision of the Agreement, or if Poly is required to do so by law
(e.g., where the provision of the Website, the Application, the
Software or the Service is, or becomes, unlawful), Poly has the
right to, immediately and without notice, suspend or terminate any
Service provided to you. You agree that all terminations for cause
shall be made in Poly's sole discretion and that Poly shall not be
liable to you or any third party for any termination of your
Account.
- Termination of Service by You. If you want to terminate the
Services provided by Poly, you may do so by (a) notifying Poly at
any time and (b) closing your Account for all of the Services that
you use. Your notice should be sent, in writing, to Poly's address
set forth below. THE SERVICE WILL CONTINUE AT THE END OF EACH
SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN
ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 7.5 (AUTOMATIC
RENEWAL).
- Effect of Termination. Termination of any Service includes
removal of access to such Service and barring of further use of the
Service. Termination of all Services also includes deletion of all
information, files and Content associated with or inside your
Account (or any part thereof). Upon termination of any Service, your
right to use such Service will automatically terminate immediately.
You understand that any termination of Service may involve deletion
of Your Content associated therewith from our live databases. Poly
will not have any liability whatsoever to you for any suspension or
termination. All provisions of the Agreement which by their nature
should survive, shall survive termination of Services, including
without limitation, ownership provisions, warranty disclaimers, and
limitation of liability.
- No Subsequent Registration. If your registration(s) with, or
ability to access, the Services is discontinued by Poly due to your
violation of any portion of the Agreement, then you agree that you
shall not attempt to re-register with or access the Services, and
you acknowledge that you will not be entitled to receive a refund
for fees related to those Services to which your access has been
terminated. In the event that you violate the immediately preceding
sentence, Poly reserves the right, in its sole discretion, to
immediately take any or all of the actions set forth herein without
any notice or warning to you.
- INTERNATIONAL USERS. The Service can be accessed from countries
around the world and may contain references to Service and Content
that are not available in your country. These references do not
imply that Poly intends to announce such Service or Content in your
country. The Services are controlled and offered by Poly from its
facilities in the United States of America. Poly makes no
representations that the Services are appropriate or available for
use in other locations. Those who access or use the Services from
other countries do so at their own volition and are responsible for
compliance with local law.
- ARBITRATION AGREEMENT. Please read this section (the "Arbitration
Agreement") carefully. It is part of your contract with Poly and
affects your rights. It contains procedures for MANDATORY BINDING
ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. Subject to the terms of
this Arbitration Agreement, you and Poly agree that any dispute,
claim, disagreements arising out of or relating in any way to your
access to or use of the Services, any communications you receive,
any products sold or distributed through the Services or the Terms
of Service and prior versions of the Terms of Service, including
claims and disputes that arose between us before the effective date
of this Terms of Service (each, a "Dispute") will be resolved by
binding arbitration, rather than in court, except that: (1) you and
Poly may assert claims or seek relief in small claims court if such
claims qualify and remain in small claims court; and (2) you or Poly
may seek equitable relief in court for infringement or other misuse
of intellectual property rights (such as trademarks, trade dress,
domain names, trade secrets, copyrights, and patents). For purposes
of this Arbitration Agreement, "Dispute" will also include disputes
that arose or involve facts occurring before the existence of this
or any prior versions of the Terms of Service as well as claims that
may arise after the termination of this Terms of Service.
- Informal Dispute Resolution. There might be instances when a
Dispute arises between you and Poly. If that occurs, Poly is
committed to working with you to reach a reasonable resolution. You
and Poly agree that good faith informal efforts to resolve Disputes
can result in a prompt, low‐cost and mutually beneficial outcome
("Informal Dispute Resolution"). You and Poly therefore agree
that before either party commences arbitration against the other (or
initiates an action in small claims court if a party so elects), we
will personally meet and confer telephonically or via
videoconference, in a good faith effort to resolve informally any
Dispute covered by this Arbitration Agreement ("Informal Dispute
Resolution Conference"). If you are represented by counsel, your
counsel may participate in the conference, but you will also
participate in the conference.
The party initiating a Dispute must give notice to the other party
in writing of its intent to initiate an Informal Dispute Resolution
Conference ("Notice"), which shall occur within 45 days after
the other party receives such Notice, unless an extension is
mutually agreed upon by the parties. Notice to Poly that you intend
to initiate an Informal Dispute Resolution Conference should be sent
by email to hello@withpoly.com or regular mail to our offices
located at Poly Corporation, 3101 Ocean Park Blvd., Ste. 100 PMB216,
Santa Monica, California 90405, Attn: Legal. The Notice must
include: (1) your name, telephone number, mailing address, e‐mail
address associated with your account (if you have one); (2) the
name, telephone number, mailing address and e‐mail address of your
counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized
such that a separate conference must be held each time either party
initiates a Dispute, even if the same law firm or group of law firms
represents multiple users in similar cases, unless all parties
agree; multiple individuals initiating a Dispute cannot participate
in the same Informal Dispute Resolution Conference unless all
parties agree. In the time between a party receiving the Notice and
the Informal Dispute Resolution Conference, nothing in this
Arbitration Agreement shall prohibit the parties from engaging in
informal communications to resolve the initiating party's Dispute.
Engaging in the Informal Dispute Resolution Conference is a
condition precedent and requirement that must be fulfilled before
commencing arbitration. The statute of limitations and any filing
fee deadlines shall be tolled while the parties engage in the
Informal Dispute Resolution Conference process required by this
section. - Waiver of Jury Trial. YOU AND POLY HEREBY WAIVE ANY
CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL
IN FRONT OF A JUDGE OR A JURY. You and Poly are instead electing
that all Disputes shall be resolved by arbitration under this
Arbitration Agreement, except as specified in the section entitled
"Applicability of Arbitration Agreement" above. There is no judge or
jury in arbitration, and court review of an arbitration award is
subject to very limited review.
- Waiver of Class and Other Non-Individualized Relief. YOU AND
POLY AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 13.9, EACH OF US MAY
BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT
ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES
HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD,
ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE,
REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS
AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE
ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Subject to this Arbitration Agreement, the arbitrator may award
declaratory or injunctive relief only in favor of the individual
party seeking relief and only to the extent necessary to provide
relief warranted by the party's individual claim. Nothing in this
paragraph is intended to, nor shall it, affect the terms and
conditions under Section 13.9 entitled "Batch Arbitration."
Notwithstanding anything to the contrary in this Arbitration
Agreement, if a court decides by means of a final decision, not
subject to any further appeal or recourse, that the limitations of
this section, "Waiver of Class and Other Non-Individualized Relief,"
are invalid or unenforceable as to a particular claim or request for
relief (such as a request for public injunctive relief), you and
Poly agree that that particular claim or request for relief (and
only that particular claim or request for relief) shall be severed
from the arbitration and may be litigated in the state or federal
courts located in the State of California. All other Disputes shall
be arbitrated or litigated in small claims court. This section does
not prevent you or Poly from participating in a class-wide
settlement of claims.
- Rules and Forum. The Term of Use evidence a transaction
involving interstate commerce; and notwithstanding any other
provision herein with respect to the applicable substantive law, the
Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the
interpretation and enforcement of this Arbitration Agreement and any
arbitration proceedings. If the Informal Dispute Resolution process
described above does not resolve satisfactorily within sixty (60)
days after receipt of your Notice, you and Poly agree that either
party shall have the right to finally resolve the Dispute through
binding arbitration. The arbitration will be administered by the
American Arbitration Association ("AAA"), in accordance with the
Consumer Arbitration Rules (the "AAA Rules") then in effect,
except as modified by this section of this Arbitration Agreement.
The AAA Rules are currently available at
https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other
party with a request for arbitration (the "Request"). The
Request must include: (1) the name, telephone number, mailing
address, e‐mail address of the party seeking arbitration and the
account username (if applicable) as well as the email address
associated with any applicable account; (2) a statement of the legal
claims being asserted and the factual bases of those claims; (3) a
description of the remedy sought and an accurate, good‐faith
calculation of the amount in controversy in United States
Dollars; (4) a statement certifying completion of the Informal
Dispute Resolution process as described above; and (5) evidence that
the requesting party has paid any necessary filing fees in
connection with such arbitration.
If the party requesting arbitration is represented by counsel, the
Request shall also include counsel's name, telephone number, mailing
address, and email address. Such counsel must also sign the Request.
By signing the Request, counsel certifies to the best of counsel's
knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances, that: (1) the Request is not
being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of dispute
resolution; (2) the claims, defenses and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing
new law; and (3) the factual and damages contentions have
evidentiary support or, if specifically so identified, will likely
have evidentiary support after a reasonable opportunity for further
investigation or discovery.
Unless you and Poly otherwise agree, or the Batch Arbitration
process discussed in Section 13.9 is triggered, the arbitration will
be conducted in the county where you reside. Subject to the AAA
Rules, the arbitrator may direct a limited and reasonable exchange
of information between the parties, consistent with the expedited
nature of the arbitration. If the AAA is not available to arbitrate,
the parties will select an alternative arbitral forum. Your
responsibility to pay any AAA fees and costs will be solely as set
forth in the applicable AAA Rules.
You and Poly agree that all materials and documents exchanged during
the arbitration proceedings shall be kept confidential and shall not
be shared with anyone except the parties' attorneys, accountants, or
business advisors, and then subject to the condition that they agree
to keep all materials and documents exchanged during the arbitration
proceedings confidential. - Arbitrator. 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 AAA's roster of consumer
dispute arbitrators. If the parties are unable to agree upon an
arbitrator within thirty-five (35) days of delivery of the Request,
then the AAA will appoint the arbitrator in accordance with the AAA
Rules, provided that if the Batch Arbitration process under Section
13.9 is triggered, the AAA will appoint the arbitrator for each
batch.
- Authority of Arbitrator. The arbitrator shall have exclusive
authority to resolve any Dispute, including, without limitation,
disputes arising out of or related to the interpretation or
application of the Arbitration Agreement, including the
enforceability, revocability, scope, or validity of the Arbitration
Agreement or any portion of the Arbitration Agreement, except for
the following: (1) all Disputes arising out of or relating to the
section entitled "Waiver of Class and Other Non-Individualized
Relief," including any claim that all or part of the section
entitled "Waiver of Class and Other Non-Individualized Relief" is
unenforceable, illegal, void or voidable, or that such section
entitled "Waiver of Class and Other Non-Individualized Relief" has
been breached, shall be decided by a court of competent jurisdiction
and not by an arbitrator; (2) except as expressly contemplated in
the section entitled "Batch Arbitration," all Disputes about the
payment of arbitration fees shall be decided only by a court of
competent jurisdiction and not by an arbitrator; (3) all Disputes
about whether either party has satisfied any condition precedent to
arbitration shall be decided only by a court of competent
jurisdiction and not by an arbitrator; and (4) all Disputes about
which version of the Arbitration Agreement applies shall be decided
only by a court of competent jurisdiction and not by an arbitrator.
The arbitration proceeding will not be consolidated with any other
matters or joined with any other cases or parties, except as
expressly provided in the section entitled "Batch Arbitration." The
arbitrator shall have the authority to grant motions dispositive of
all or part of any Dispute. The arbitrator shall issue a written
award and statement of decision describing the essential findings
and conclusions on which the award is based, including the
calculation of any damages awarded. The award of the arbitrator is
final and binding upon you and us. Judgment on the arbitration award
may be entered in any court having jurisdiction.
- Attorneys' Fees and Costs. The parties shall bear their own
attorneys' fees and costs in arbitration unless the arbitrator finds
that either the substance of the Dispute or the relief sought in the
Request was frivolous or was brought for an improper purpose (as
measured by the standards set forth in Federal Rule of Civil
Procedure 11(b)). If you or Poly need to invoke the authority of a
court of competent jurisdiction to compel arbitration, then the
party that obtains an order compelling arbitration in such action
shall have the right to collect from the other party its reasonable
costs, necessary disbursements, and reasonable attorneys' fees
incurred in securing an order compelling arbitration. The prevailing
party in any court action relating to whether either party has
satisfied any condition precedent to arbitration, including the
Informal Dispute Resolution process, is entitled to recover their
reasonable costs, necessary disbursements, and reasonable attorneys'
fees and costs.
- Batch Arbitration. To increase the efficiency of administration
and resolution of arbitrations, you and Poly agree that in the event
that there are one-hundred (100) or more individual Requests of a
substantially similar nature filed against Poly by or with the
assistance of the same law firm, group of law firms, or
organizations, within a thirty (30) day period (or as soon as
possible thereafter), the AAA shall (1) administer the arbitration
demands in batches of 100 Requests per batch (plus, to the extent
there are less than 100 Requests left over after the batching
described above, a final batch consisting of the remaining
Requests); (2) appoint one arbitrator for each batch; and (3)
provide for the resolution of each batch as a single consolidated
arbitration with one set of filing and administrative fees due per
side per batch, one procedural calendar, one hearing (if any) in a
place to be determined by the arbitrator, and one final award
("Batch Arbitration").
All parties agree that Requests are of a "substantially similar
nature" if they arise out of or relate to the same event or factual
scenario and raise the same or similar legal issues and seek the
same or similar relief. To the extent the parties disagree on the
application of the Batch Arbitration process, the disagreeing party
shall advise the AAA, and the AAA shall appoint a sole standing
arbitrator to determine the applicability of the Batch Arbitration
process ("Administrative Arbitrator"). In an effort to expedite
resolution of any such dispute by the Administrative Arbitrator, the
parties agree the Administrative Arbitrator may set forth such
procedures as are necessary to resolve any disputes promptly. The
Administrative Arbitrator's fees shall be paid by Poly.
You and Poly agree to cooperate in good faith with the AAA to
implement the Batch Arbitration process including the payment of
single filing and administrative fees for batches of Requests, as
well as any steps to minimize the time and costs of arbitration,
which may include: (1) the appointment of a discovery special master
to assist the arbitrator in the resolution of discovery disputes;
and (2) the adoption of an expedited calendar of the arbitration
proceedings.
This Batch Arbitration provision shall in no way be interpreted as
authorizing a class, collective and/or mass arbitration or action of
any kind, or arbitration involving joint or consolidated claims
under any circumstances, except as expressly set forth in this
provision. - 30-Day Right to Opt Out. You have the right to opt out of the
provisions of this Arbitration Agreement by sending written notice
of your decision to opt out to: Poly Corporation, 3101 Ocean Park
Blvd., Ste. 100 PMB216, Santa Monica, California 90405, Attn: Legal,
within thirty (30) days after first becoming subject to this
Arbitration Agreement. Your notice must include your name and
address, the email address you used to set up your Poly account (if
you have one), and an unequivocal statement that you want to opt out
of this Arbitration Agreement. If you opt out of this Arbitration
Agreement, all other parts of this Terms of Service will continue to
apply to you. Opting out of this Arbitration Agreement has no effect
on any other arbitration agreements that you may currently have, or
may enter in the future, with us.
- Invalidity, Expiration. Except as provided in the section
entitled "Waiver of Class or Other Non-Individualized Relief", if
any part or parts of this Arbitration Agreement are found under the
law to be invalid or unenforceable, then such specific part or parts
shall be of no force and effect and shall be severed and the
remainder of the Arbitration Agreement shall continue in full force
and effect. You further agree that any Dispute that you have with
Poly as detailed in this Arbitration Agreement must be initiated via
arbitration within the applicable statute of limitation for that
claim or controversy, or it will be forever time barred. Likewise,
you agree that all applicable statutes of limitation will apply to
such arbitration in the same manner as those statutes of limitation
would apply in the applicable court of competent jurisdiction.
- Modification. Notwithstanding any provision in this Terms of
Service to the contrary, we agree that if Poly makes any future
material change to this Arbitration Agreement, we will notify you.
Unless you reject the change within thirty (30) days of such change
become effective by writing to Poly at Poly Corporation, 3101 Ocean
Park Blvd., Ste. 100 PMB216, Santa Monica, California 90405, Attn:
Legal, your continued use of the Service, including the acceptance
of products and services offered on the Service following the
posting of changes to this Arbitration Agreement constitutes your
acceptance of any such changes. Changes to this Arbitration
Agreement do not provide you with a new opportunity to opt out of
the Arbitration Agreement if you have previously agreed to a version
of this Terms of Service and did not validly opt out of arbitration.
If you reject any change or update to this Arbitration Agreement,
and you were bound by an existing agreement to arbitrate Disputes
arising out of or relating in any way to your access to or use of
the Service, any communications you receive, any products sold or
distributed through the Service or this Terms of Service, the
provisions of this Arbitration Agreement as of the date you first
accepted the Terms of Service (or accepted any subsequent changes to
this Terms of Service) remain in full force and effect. Poly will
continue to honor any valid opt outs of the Arbitration Agreement
that you made to a prior version of this Terms of Service.
- THIRD-PARTY SERVICE PROVIDER. Poly uses Stripe, Inc. and its
affiliates as the third party service provider for payment services
(e.g., card acceptance, merchant settlement, and related services)
(a "Third Party Service Provider"). By buying or selling on any
portion of the Service, you agree to be bound by Stripe's Privacy
Policy (currently accessible at https://stripe.com/us/privacy) and
its Terms of Service (currently accessible at
https://stripe.com/ssa) and hereby consent and authorize Poly and
Stripe to share any information and payment instructions you provide
with one or more Third Party Service Provider(s) to the extent
required to complete your transactions.
- GENERAL PROVISIONS.
- Electronic Communications. The communications between you
and Poly may take place via electronic means, whether you visit
the Service or send Poly e-mails, or whether Poly posts notices
on the Service or communicates with you via e-mail. For
contractual purposes, you (a) consent to receive communications
from Poly in an electronic form; and (b) agree that all terms
and conditions, agreements, notices, disclosures, and other
communications that Poly provides to you electronically satisfy
any legal requirement that such communications would satisfy if
it were to be in writing. The foregoing does not affect your
statutory rights, including but not limited to the Electronic
Signatures in Global and National Commerce Act at 15 U.S.C.
§7001 et seq. ("E-Sign").
- Assignment. The Agreement, and your rights and obligations
hereunder, may not be assigned, subcontracted, delegated or
otherwise transferred by you without Poly's prior written consent,
and any attempted assignment, subcontract, delegation, or transfer
in violation of the foregoing will be null and void.
- Force Majeure. Poly shall not be liable for any delay or failure
to perform resulting from causes outside its reasonable control,
including, but not limited to, acts of God, war, terrorism, riots,
embargos, acts of civil or military authorities, fire, floods,
accidents, strikes or shortages of transportation facilities, fuel,
energy, labor or materials.
- Questions, Complaints, Claims. If you have any questions,
complaints or claims with respect to the Service, please contact us
at: hello@withpoly.com. We will do our best to address your
concerns. If you feel that your concerns have been addressed
incompletely, we invite you to let us know for further
investigation.
- Exclusive Venue. To the extent the parties are permitted under
this Agreement to initiate litigation in a court, both you and Poly
agree that all claims and disputes arising out of or relating to the
Agreement will be litigated exclusively in the state or federal
courts located in Los Angeles County, California.
- Governing Law. The Terms and any action related thereto will be
governed and interpreted by and under the laws of the State of
CALIFORNIA, consistent with the Federal Arbitration Act, without
giving effect to any principles that provide for the application of
the law of another jurisdiction. The United Nations Convention on
Contracts for the International Sale of Goods does not apply to the
AGREEMENT.
- Choice of Language. It is the express wish of the parties that
the Agreement and all related documents have been drawn up in
English.
- Notice. Where Poly requires that you provide an e-mail address,
you are responsible for providing Poly with your most current e-mail
address. In the event that the last e-mail address you provided to
Poly is not valid, or for any reason is not capable of delivering to
you any notices required/ permitted by the Agreement, Poly's
dispatch of the e-mail containing such notice will nonetheless
constitute effective notice. You may give notice to Poly at the
following address: Poly Corporation, 3101 Ocean Park Blvd., Ste. 100
PMB216, Santa Monica, California 90405, Attn: Legal. Such notice
shall be deemed given when received by Poly by letter delivered by
nationally recognized overnight delivery service or first class
postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the
Agreement on one occasion will not be deemed a waiver of any other
provision or of such provision on any other occasion.
- Severability. If any portion of this Agreement is held invalid
or unenforceable, that portion shall be construed in a manner to
reflect, as nearly as possible, the original intention of the
parties, and the remaining portions shall remain in full force and
effect.
- Export Control. You may not use, export, import, or transfer the
Service except as authorized by U.S. law, the laws of the
jurisdiction in which you obtained the Service, and any other
applicable laws. In particular, but without limitation, the Service
may not be exported or re-exported (a) into any United States
embargoed countries, or (b) to anyone on the U.S. Treasury
Department's list of Specially Designated Nationals or the U.S.
Department of Commerce's Denied Person's List or Entity List. By
using the Service, you represent and warrant that (i) you are not
located in a country that is subject to a U.S. Government embargo,
or that has been designated by the U.S. Government as a "terrorist
supporting" country and (ii) you are not listed on any U.S.
Government list of prohibited or restricted parties. You also will
not use the Service for any purpose prohibited by U.S. law,
including the development, design, manufacture or production of
missiles, nuclear, chemical or biological weapons. You acknowledge
and agree that products, services or technology provided by Poly are
subject to the export control laws and regulations of the United
States. You shall comply with these laws and regulations and shall
not, without prior U.S. government authorization, export, re-export,
or transfer Poly products, services or technology, either directly
or indirectly, to any country in violation of such laws and
regulations.
- Consumer Complaints. In accordance with California Civil Code
§1789.3, you may report complaints to the Complaint Assistance Unit
of the Division of Consumer Service of the California Department of
Consumer Affairs by contacting them in writing at 1625 North Market
Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800)
952-5210.
- Entire Agreement. The Agreement is the final, complete and
exclusive agreement of the parties with respect to the subject
matter hereof and supersedes and merges all prior discussions
between the parties with respect to such subject matter.
- INTERNATIONAL PROVISIONS. The following provisions shall apply
only if you are located in the countries listed below.
- United Kingdom. A third party who is not a party to the
Agreement has no right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any provision of the Agreement, but
this does not affect any right or remedy of such third party
which exists or is available apart from that Act.
- Germany. Notwithstanding anything to the contrary in Section 10
(Limitation of Liability), Poly is also not liable for acts of
simple negligence (unless they cause injuries to or death of any
person), except when they are caused by a breach of any substantial
contractual obligations (vertragswesentliche Pflichten).