TERMS OF SERVICE &
END USER LICENSE AGREEMENT
Last Updated: February 21, 2020
Welcome to the pocket.watch mobile application! These Terms of Service and End User License Agreement (“Terms”) are an agreement between you and PocketWatch, Inc. Throughout these Terms, the terms “Company,” “us,” and/or “we” refer to PocketWatch, Inc. These Terms govern your access and use of the pocket.watch mobile application, including all related documentation and updates (the “Application”).
BY DOWNLOADING AND INSTALLING THE APPLICATION, YOU (a) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (b) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (c) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL AND/OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, LIMIT THE TIME IN WHICH TO BRING A CLAIM, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
We may amend these Terms occasionally. If any changes materially affect your rights or obligations, we will notify you by reasonable means. You acknowledge and agree that an in-app message which notifies you of any material changes when you open the Application constitutes reasonable means. Your continued use of the Application after we post any such amendments constitutes your acceptance thereof. If you do not agree to the amendments, you must discontinue use of the Application and delete it from your mobile device.
The Application, and content therein, is intended for children under the age of 13 to use only with the permission of and/or participation of a parent or guardian. If you do not meet all of these requirements, you must not access or use the Application.
INTELLECTUAL PROPERTY OWNERSHIP
The Application and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, graphics, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Company, its licensors, service providers, or other providers of such material, and are protected by United States, Canadian, and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws (collectively, the “Intellectual Property”).
Company is the owner of pending, registered and unregistered trademarks, trade dress and trade names appearing on the Application, including but not limited to Company name and logo, and all related names, logos, products and service names, designs, slogans and tag lines (collectively the “Marks”). You must not use such marks without the prior written permission of Company. All other names, logos, product and service names, designs, slogans and tag lines on the Application are the trademarks of their respective owners.
Subject to these Terms, Company grants you (“Licensee”) a limited, non-exclusive, revocable, non-sublicensable, and nontransferable license to: (a) access, download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (”Mobile Device”) strictly in accordance with the Application’s documentation, and (b) access, stream, download, and use on such Mobile Device interactive features made available in or otherwise accessible through the Application, strictly in accordance with these Terms.
Licensee shall not:
- copy the Application, except as expressly permitted by this license (and other than a single copy for your own backup purposes);
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not copyrightable and/or patentable, of the Application;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- access, create and/or modify the Application source code;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, assign, publish, transfer, grant, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed and/or downloaded by more than one device at any time;
- use any spider, robot, and/or other automatic or manual device or process to interfere with the proper working of the Application (except to remove the Application from your device); and/or
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
If you violate the Intellectual Property rights of Company and/or these Terms, your right to use the Application will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Application or any content on the Application is transferred to you, and all rights not expressly granted are reserved by Company. Any use of the Application not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
In addition to other restrictions set forth in these Terms, you are prohibited from using the Application or its content: (a) for any unlawful purpose or to solicit others to perform or participate in any unlawful acts; (b) to violate any applicable federal, provincial or state regulations, rules, laws, local ordinances, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries); (c) for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise; (d) to infringe upon or violate our Intellectual Property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to transmit, or procure the sending of, any advertising or promotional including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation; (h) to phish, pharm, pretext, spider, crawl, or scrape; (i) to upload or transmit viruses, Trojan horses, worms, logic bombs, or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Application or of any related services, or the Internet; (j) to collect or track the personal information of others; (k) for any obscene or immoral purpose; (l) to impersonate or attempt to impersonate Company, a Company employee, another user, or any other person or entity, including, without limitation, by using email addresses associated with any of the foregoing; (m) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Application, or which, as determined by us, may harm Company or users of the Application or expose them to liability; or (n) to interfere with or circumvent the security features of the Application or any related services, or the Internet.
We reserve the right to terminate your use of the Application or any related services for violating any provision of these Terms.
RESERVATION OF RIGHTS
You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under these Terms, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms.
COLLECTION AND USE OF YOUR INFORMATION
The content and features of the Application is based in California, USA and provided for access and use only by persons located in the United States and in Canada. You acknowledge that you may not be able to access all or some of the content and/or features of the Application outside of the United States or Canada and that access thereto may not be legal by certain persons or in certain countries. If you access content from the Application from outside the United States or Canada, you are responsible for compliance with local laws.
Company may occasionally in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
Updates will be provided when your Mobile Device is connected to the internet by one of the following ways:
- the Application will automatically download and install all available Updates; or
- you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of these Terms.
THIRD PARTY MATERIALS
The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (”Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
TERM AND TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of these Terms for all purposes. These Terms are effective unless and until terminated by either you or us. You may terminate these Terms by deleting the Application and all copies thereof from your Mobile Device. If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms, we also may terminate these Terms at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to the Application (or any part thereof).
DISCLAIMER OF WARRANTIES
THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, OR THEIR RESPECTIVE OWNERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, SUB-CONTRACTORS, SUCCESSORS OR ASSIGNS HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR: (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, OR (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold harmless Company, and its parent, subsidiaries, affiliates, partners, successors, and assigns, and each of their owners, members, officers, directors, employees, agents, representatives, contractors, subcontractors, licensors, service providers, and third party content providers from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, fees, including reasonable attorneys’ fees, or expenses of whatever kind arising from or relating to your use or misuse of the Application or your breach of these Terms, including but not limited to the content you submit or make available through this Application.
The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
If any provision of these Terms is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of these Terms will continue in full force and effect.
Any claim, dispute, and/or legal proceeding relating to these Terms and/or the Application (collectively, “Claims“), shall be governed by and construed in accordance with the laws of the state of California without giving effect to any choice or conflict of law provision or rule. Except as provided below under the Arbitration clause, any Claim shall be instituted exclusively in the federal courts of the United States or the courts of the state of California in each case located in Los Angeles and Los Angeles County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
LIMITATION OF TIME TO FILE CLAIMS
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
PLEASE READ THIS ARBITRATION CLAUSE CAREFULLY.
Except for Claims relating to intellectual property rights, obligations, or any infringement claims, or Claims that qualify for small claims court, all Claims to the extent allowed by law, shall be submitted to confidential binding arbitration on an individual basis in Los Angeles County, CA through the American Arbitration Association, and you consent to personal jurisdiction, venue and forum without objection. You agree that all such Claims must be brought within one year after such claim arose, otherwise, your Claim is permanently barred.
The AAA Consumer Arbitration Rules shall apply (www.adr.org). The arbitration shall be conducted by a single, neutral arbitrator. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees), and shall pay an equal share of the fees and costs of arbitration. The parties hereby waive their constitutional and statutory rights to go to court and have a trial before a judge or jury. All Claims within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class action basis, and claims of more than one user cannot be arbitrated or resolved jointly or consolidated with any other user.
Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in a court of competent jurisdiction, and you consent to the exclusive jurisdiction and venue of any state or federal court in Los Angeles County, California.
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between these Terms and any applicable purchase or other terms, the provisions of these Terms shall govern.
HOW TO CONTACT US
Please contact us at the mailing address, email, or phone number below with questions about our Terms of Service :
8500 Steller Dr., Bldg. 7
Culver City, CA 90232
United States of America