Effective January 1, 2017
These terms of service (“terms”) CONSTITUTE A CONTRACT (“Agreement”) BETWEEN YOU AND PINGTUMI, INC., a Delaware corporation. THESE TERMS govern your access to and use of the services, including our SOFTWARE, website, PUSH notifications, applications, ads and commerce services (the “Services”), and any information, TEXT, photos, VIDEOS, MAPS GRAPHICS or other materials uploaded, downloaded or appearing on the Services (collectively referred to as “Content”). Your access to and use of the Services are conditioned on your acceptance of, and compliance with, these Terms. By accessing or using the Services you agree to be bound by these Terms. IF YOU ARE ACCEPTING THESE TERMS AND USING THE SERVICES ON BEHALF OF A COMPANY, ORGANIZATION OR OTHER LEGAL ENTITY (“COMPANY”), YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND THE COMPANY TO THIS AGREEMENT, AND ALL REFERENCES TO “YOU” IN THIS AGREEMENT WILL BE INTERPRETED TO MEAN THE COMPANY and its users.
You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be downloaded, copied, syndicated, broadcast, distributed, or published by other users of the Services and by our partners and if you do not have the right to submit Content for such use, it may subject you to liability. Pingtumi will not be responsible or liable for any use of your Content by Pingtumi in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.
Pingtumi reserves the right, at any time, and with or without prior notice to you, to modify, alter or update these Terms, in which case the new Terms will supersede prior versions. Pingtumi will attempt to notify you of any major change to these terms via the email address associated with your account or via a notification in the Pingtumi mobile app. The date of the most recent revision will appear on this page. Your continued use of the Services following the effective date of any changes or revisions will constitute your acceptance of any such changes or revisions to these Terms and may be relied upon by Pingtumi as your acceptance and consent. Your right to use the Services is also subject to restrictions and policies implemented by Pingtumi, which Pingtumi may change from time to time in its sole discretion, including Pingtumi’s right to create limits on use and storage, at any time without prior notice to you. Your continued use of the Services constitutes your agreement to comply with these additional restrictions and policies. Pingtumi’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of the Terms.
You are responsible for safeguarding the password that you use to access the Services and for any activities or actions occurring under your password. Pingtumi will not be liable for any loss or damage arising from your failure to comply with your responsibility.
Content on the Services
All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. We do not actively monitor or control the Content posted via the Services and, we shall not be responsible for such Content. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Services or endorse any opinions expressed via the Services. You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will Pingtumi be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere.
If you become aware of offensive, harmful, inaccurate or otherwise inappropriate Content while accessing or using the Services, you may notify us by flagging such content or sending an email to firstname.lastname@example.org, and we may remove such Content in our sole discretion. Likewise, if we are notified that Content posted by you is offensive, harmful, inaccurate or otherwise inappropriate, we may remove your Content without any liability to you for such actions.
Ownership of Content
You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant Pingtumi a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.
Use of Name.
Nothing in the Terms gives you a right to use the Pingtumi name or any of the Pingtumi trademarks, logos, domain names, and other distinctive brand features. Any feedback, comments, or suggestions you may provide regarding Pingtumi, or the Services is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
The Services may include advertisements, which may be targeted to the Content or information on the Services, queries made through the Services, or other information. The types and extent of advertising by Pingtumi on the Services are subject to change. In consideration for Pingtumi granting you access to and use of the Services, you agree that Pingtumi and its third party providers and partners may place such advertising on the Services or in connection with the display of Content or information from the Services whether submitted by you or others.
Restrictions on Use and Content.
We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services, to suspend or terminate users, and to reclaim usernames without liability to you. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Pingtumi, its users and the public.
You agree to comply with the following acceptable use terms when using the Services. Pingtumi reserves the right to change these acceptable use terms at any time.
You may not:
- Create names, usernames, addresses or logos that impersonate the identify of other individuals or businesses.
- Create usernames that infringe on the legal trademarks of other individuals or businesses.
- Create multiple accounts for the primary purpose of squatting on usernames or preventing other users of the service from accessing those usernames. Accounts that are inactive for greater than 6 months may be suspended without prior notice and content generated from such accounts may be deleted. Inactive accounts are accounts where the owner of such account has not logged or used the Pingtumi service for a period of 6 months.
- Buy or sell Pingtumi usernames.
- Sell or license your account.
- Automate the creation of accounts through unauthorized methods such as the use of bots, scripts, crawler or scrapers. Mass account creation will also result in suspension or termination of all related accounts.
- Upload or post inapporiate content such as intimate, nude or pornographic photos or videos to your notifications or profile or background image.
- Upload or post discriminatory, hateful, unlawful or offensive text, photos or threats of violence against others.
- Upload or post the private information of others such as their social security number, address, credit card information and non public phone numbers.
- Upolad or post copyrighted or trademarked content.
- Embed links to malicious content or sites with the intention of causing harm to the user, their privacy or their access device (e.g. smartphone, tablet, laptop or desktop pc).
- Embed links to pornographic sites or sites that promote violence or hate.
- Upload or post copyrighted content in any form (i.e. text, video, audio or images).
- Use the Services to send spam invitations.
- Use the Services to send repeat mass notifications to yourself or others.
- Use the Services to deceive others by sending notifications that are not relevant to the notification title.
- Use the Services in the conduct of unlawful or illegal activities as dictated by your home country.
If you believe that your Content has been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an 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 that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, Pingtumi will also terminate a user’s account if the user is determined to be a repeat infringer.
Term and Termination.
You may terminate this Agreement with Pingtumi at any time for any reason by deactivating your accounts and discontinuing your use of the Services. You do not need to specifically inform Pingtumi when you stop using the Services. If you stop using the Services without deactivating your accounts, your accounts may be deactivated due to prolonged inactivity.
We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms, (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Services to you is no longer commercially viable. We will make reasonable efforts to notify you by the email address associated with your account or the next time you attempt to access your account.
The Term of the Agreement will automatically end upon termination or expiration of the Agreement, and all licenses granted by Pingtumi hereunder will immediately terminate and you will cease using the Software and Services.
11.1 Reservation of Rights. As between the parties, Pingtumi, its licensors or suppliers will retain all title, copyright and other proprietary and intellectual property rights in and to the Services, the Software, and any other software, products, technology, materials and service, as well as any modifications or translations thereof that Pingtumi may provide, or you may have access to hereunder. All rights in and to the foregoing not expressly granted to you in this Agreement are reserved to Pingtumi, its licensors or suppliers. You hereby agree that you do not acquire any rights in any such Software, products, technologies or services other than those rights specified in this Agreement.
11.2 License Grant. During the Term of this Agreement, Pingtumi grants you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Software that is provided to you by Pingtumi as part of the Services. This license is for the sole purpose of enabling you to use the Services as provided by Pingtumi in the manner permitted by these Terms.
11.3 Restrictions. You shall not: (i) modify, copy or create derivative works based on the Services, Software or Pingtumi technology: (ii) disassemble, reverse engineer, or decompile the Services, Software or Pingtumi technology, or access it in order to (A) build a competitive product or service, or (B) build a product or service using similar ideas, user interfaces, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Services or Software, or (iii) obfuscate, alter, or remove any copyright, trademark, or other proprietary notice or legend on or in the Services, Software or Documentation and will include all such markings in all copies of such materials.
DISCLAIMER OF WARRANTIES.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT PINGTUMI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Pingtumi makes no warranty or representations and disclaims all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. You understand and agree that no advice or information, whether oral or written, obtained from Pingtumi or through the Services, will create any warranty or representation not expressly made herein.
The Services may contain links to third-party websites or resources. You acknowledge and agree that Pingtumi is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Pingtumi of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
LIMITATION OF LIABILITY.
13.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL PINGTUMI OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR FOR ANY LOST DATA, USE, GOOD WILL OR OTHER INTANGIBLE LOSSES, RESULTING FROM (1) YOUR ACCESS TO, OR USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES; (2) ANY CONTENT OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE, INAPPROPRIATE, HARMFUL OR ILLEGAL CONTENT OR CONDUCT OF OTHER USERS OR THIRD PARTIES; (3) ANY CONTENT OBTAINED FROM THE SERVICES; OR (4) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
13.2 IN NO EVENT SHALL PINGTUMI’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100.00) OR THE AMOUNT OF FEES PAID BY YOU TO PINGTUMI, IF ANY, IN THE PAST THREE (3) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 13.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT PINGTUMI’S POTENTIAL LIABILITY GIVEN THE AMOUNT OF FEES PAID BY YOU HEREUNDER, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF PINGTUMI WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. PINGTUMI HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICES AND SOFTWARE PROVIDED FOR IN THIS AGREEMENT.
13.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE JURISDICTIONS, PINGTUMI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
14.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or your rights under this Agreement or delegate performance of your duties under this Agreement without Pingtumi’s prior written consent, which consent will not be unreasonably withheld. Pingtumi may, without your prior consent, assign this Agreement to an Affiliate of Pingtumi or in connection with a merger or change of control of Pingtumi or the sale of all or substantially all of Pingtumi assets, provided that any such successor agrees to fulfill its obligations under this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
14.2 The Agreement consists of these Terms and constitutes the entire agreement and supersedes any and all prior agreements between you and Pingtumi with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation you provide (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof.
14.3 You shall comply with all applicable local, state, federal and foreign laws in using the Service, and if using the Service outside of the United States, not use the Service in any manner that would violate any federal or state laws of the United States if conducted therein.
14.4 If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.5 The Services which Pingtumi may provide or make available to you may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services and such other components by you. You shall not access or use the Services if you are located in any jurisdiction in which the provision of the Services is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and you shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that: (i) you are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) you are not a national of, or registered in, any Prohibited Jurisdiction, (iii) you shall not access or use the Services or Software in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (iv) you shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you are located.
14.6 The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
14.7 Sections 3, 4, 5, 7, 9, 10, 11, 12, 13 and 14 (and any other Sections that reasonably should survive termination of the Agreement) shall survive termination of the Agreement with respect to use of the Services by you. Termination of the Agreement shall not limit your liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
14.8 Any notices required or permitted hereunder will be given to the attention of the Legal Department at the address specified as the corporate address of each you or at such other address as the parties specify in writing. Notice will be deemed given: upon personal delivery; if sent by confirmed facsimile, upon confirmation of receipt; if sent by overnight courier, upon receipt; or, if sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing.
14.9 The Agreement shall be governed by the laws of the State of California without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, San Mateo County, for the purpose of resolving any dispute relating to the Agreement or access to or use of the Service by you.