Last Updated: March 18, 2021
These General Terms of Service (the “General Terms”) govern your (“you” or “User”) use of our website located at www.polly.io including any subdomain thereof (the “Site”) and the services or products offered or provided therein by PollyEx, Inc., a Delaware corporation (“Polly” or “we”) via the Site or our mobile application (“App”). To make these General Terms easier to read, the Site, the App and our products or services are collectively called the “Services”.
Use of the Services.
(a) You may use the Services only if you are a corporation, the sole proprietorship of an individual 18 years or older, or another legal entity authorized to do business pursuant to applicable law, and are not barred from using the Services under applicable law.
(b) In order to use certain features of the Services, you may need to create an account or otherwise agree to other separate written agreement with us. Any information you submit to us must provide accurate, complete and up-to-date. If you do not, Polly may suspend or terminate your access to any of our Services. You agree that you will not disclose your any account password or login information to anyone and you will notify us immediately of any unauthorized use of your account. You are responsible for all activities that occur under your account, whether or not you know about or consent to them.
Access to and Use of the Services.
(a) Access to the Services. Subject to User’s compliance with these General Terms, Polly hereby grants User and its Users a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services solely for User’s business purposes.
(b) Restrictions. Users will not: (i) sell, rent, sublicense, or lease access to the Services, or use the Services to allow or enable access to or use of the Services; (ii) remove, obscure, or alter any proprietary notices associated with the Services; (iii) use or modify the Services, and/or allow it to be used or modified, in any manner or for any purpose, other than as expressly permitted herein; (iv) disassemble, decompile, or reverse engineer Services or any of the technology supporting the Services or otherwise attempt to discover the source code of the Services; (v) create derivative works based on the Services; (vi) impersonate any person or entity or falsely state or otherwise misrepresent its affiliation with a person or entity to Polly or another User; (vii) materially and adversely interfere with, damage, disable, impair or disrupt the Services, the Site or Polly’s servers or networks; (viii) not to use automated scripts to collect information from the Service or the Site or for any other purpose, (ix) upload, post, transmit, share, store or otherwise make available on the Site any private information of any third party, including, without limitation, phone numbers, email addresses, Social Security numbers and credit card numbers except as expressly permitted by Polly, (x) provide Polly with false or misleading information; (xi) access the Services in order to build a competitive product or service or to copy any features, functions or graphics of the Services; (xii) violate any applicable law or regulation; or (xiii) permit or encourage any third party to do any of the foregoing.
(c) Telecommunications and Internet Services. User acknowledges and agrees that its use of the Services is dependent upon access to telecommunications and Internet services. User will be solely responsible for acquiring, setting up, and maintaining, at your own expense, all telecommunications and Internet services and third-party hardware and software, required to access and use the Services, including without limitation any and all costs, fees, expenses, and taxes of any kind related to the foregoing.
(d) Acceptable Use. User may not use the Services: (a) in violation of these General Terms; (b) in a way that infringes on, violates, dilutes or misappropriates the intellectual property rights of any third party or any rights of publicity or privacy; (c) in violation of any law, statute, ordinance or regulation, unfair competition, anti-discrimination and/or false advertising); (d) to upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of Polly, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose Polly or any other person or party using or accessing the Services to any harm or liability of any type or (e) to engage in any illegal, offensive, indecent, inappropriate or objectionable conduct or content. User may access the services only through the interfaces and protocols provided or authorized by Polly. User may not access the Services through unauthorized means, such as unlicensed software clients.
(e) User Content. “User Content” means information and materials provided or made accessible to Polly by or on behalf of User for the purpose of receiving or using the Services. User will: (a) provide Polly with the User Content in the form and format requested by Polly, or as otherwise required to access and use the Services; (b) be responsible for all User Content; (c) ensure compliance with all laws, obligations, rules, and regulations applicable to its use of the Services; and (d) obtain all waivers, consents and other rights necessary for Polly to use the User Content to provide the services to User.
(f) Enforcement. Polly may suspend or terminate User’s or any User’s access to the Services upon notice to User if Polly reasonably determines in its sole discretion that User or any User has violated these General Terms. User shall be liable for any violation of these General Terms and conditions of these General Terms by any User.
(a) Polly Ownership. Subject to the limited rights expressly granted hereunder, Polly reserves all rights, title and interest in and to the Services, including all related Intellectual Property Rights. No rights are granted to User hereunder other than as expressly set forth in these General Terms. For purposes of these General Terms, “Intellectual Property Rights” means all patent rights (including, without limitation, patent applications and disclosures), copyright rights, trade secret rights, trademark rights, rights in know-how, and any other intellectual property or proprietary rights recognized in any country or jurisdiction in the world.
(b) Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
(c) Use of Your Name. Unless otherwise explicitly provided in writing by Polly, you agree that Polly may use your name, logo and marks to identify you as a Polly customer for use in connection with marketing, promoting and advertising the Platform and Services, for use in customer references and case studies involving you, and for use in other activities related to Polly’s business.
(a) User Data. User represents and warrants that it owns all data or information inputted or submitted by User (or caused to be inputted or submitted by third parties, or authorized Polly to obtain from a third party) to the Services (“User Data”) or has all rights that are necessary to use the User Data and grants to Polly the rights in the User Data as set forth in these General Terms.
(b) License Grant to Polly. By inputting or submitting any User Data to the Services, User grants to Polly a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid up, royalty-free license, with the right to sublicense, to (i) use, copy, transmit, store, modify, create derivative works based upon, incorporate into other works (including without limitation for developing and marketing new services and products), distribute, publicly display, and publicly perform its User Data in connection with operating and providing the Services, and (ii) use its User Data to create Usage Data (as defined below); provided, however, that Polly will not distribute non-anonymized User Data to any competitor of User without User’s prior consent.
(c) Usage Data. User acknowledges and agrees that Polly may generate, process and analyze data (including aggregate or anonymized User Data and any insights derived therefrom) and other information relating to the provision, use and performance of various aspects of the Services (collectively, “Usage Data”). Polly exclusively owns all right, title and interest in and to the Usage Data, including all associated Intellectual Property Rights, and may use such Usage Data for any lawful purpose including improving or otherwise optimizing the Services.
Rights and Terms for Apps.
(a) Rights in App Granted by Polly. Subject to your compliance with these General Terms, Polly grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these General Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Polly reserves all rights in and to the App not expressly granted to you under these General Terms.
(b) Accessing App from App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
• These General Terms are concluded between you and Polly, and not with the App Provider, and Polly (not the App Provider), is solely responsible for the App.
• The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
• In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Polly.
• The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Polly will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these General Terms.
• The App Provider, and its subsidiaries, are third-party beneficiaries of these General Terms as related to your license to the App, and that, upon your acceptance of these General Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these General Terms as related to your license of the App against you as a third-party beneficiary thereof.
• 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 must also comply with all applicable third party terms of service when using the App.
Representations and Warranties
(a) User Representations and Warranties. User represents and warrants to Polly that: (a) User has the necessary authority to enter into these General Terms and carry out its obligations hereunder; (b) it will comply with all applicable laws in its use of the Services; (c) it has obtained and will obtain all necessary authorizations, lawful bases, consents, permissions and licenses with respect to any and all User Content to the extent necessary: (i) for User to grant the rights and licenses hereunder to Polly; (ii) for User and Polly to comply with all applicable laws, rules and regulations; and (iii) for User to grant the licenses without violating any third party intellectual property, privacy rights or any other proprietary rights; (d) neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Polly on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; (e) User is 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 (f) User is not listed on any U.S. Government list of prohibited or restricted parties.
(b) DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, POLLY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND POLLY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED IN THESE GENERAL TERMS OR ANY OTHER POLLY TERMS OR AGREEMENTS AS APPLICABLE, THE SERVICES AND ALL CONTENT GENERATED BY OR OTHERWISE ACCESSIBLE FROM THE POLLY SERVICES OR RELATED SERVICES OR SYSTEMS (“SYSTEM CONTENT”) OR ANY USE THEREOF ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. POLLY DOES NOT WARRANT THAT THE SERVICES WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE OR SECURE, OR THAT ALL DEFECTS IN THE SERVICES WILL BE CORRECTED. POLLY WILL NOT BE LIABLE IN ANY WAY RELATED TO NON-POLLY APPLICATIONS. POLLY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY PROVIDERS. WITHOUT LIMITING THE FOREGOING, USER ACKNOWLEDGES AND AGREES THAT Polly DOES NOT PROVIDE ANY FRAUD DETECTION SERVICES UNDER THESE GENERAL TERMS AND THAT POLLY DOES NOT WARRANT THAT USE OF THE SERVICES WILL HAVE ANY IMPACT ON SALES OR REVENUE. POLLY HAS NO OBLIGATION WITH RESPECT TO THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE GENERAL TERMS OR OTHER POLLY TERMS OR AGREEMENTS AS APPLICABLE.
(c) NO LIABILITY FOR USER CONTENT. WITHOUT LIMITING THIS SECTION, USER ACKNOWLEDGES THAT POLLY IS NOT REQUIRED TO PRE-SCREEN OR MONITOR THE USER CONTENT. UNDER NO CIRCUMSTANCES WILL POLLY BE LIABLE IN ANY WAY FOR ANY USER CONTENT, INCLUDING LIABILITY FOR ANY ERRORS, INACCURACIES, OR OMISSIONS THEREIN, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR BREACH OF THESE GENERAL TERMS OR APPLICABLE LAWS. USER ACKNOWLEDGES THAT IT IS RESPONSIBLE FOR MAINTAINING ADEQUATE SECURITY AND CONTROL OF ANY AND ALL IDS, PASSWORDS, HINTS, PERSONAL IDENTIFICATION NUMBERS (PINS), OR ANY OTHER CODES THAT USER USES TO ACCESS OR IN RELATION TO THE SERVICES.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL POLLY BE LIABLE FOR ANY LOST DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THESE GENERAL TERMS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF POLLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF POLLY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) ONE HUNDRED DOLLARS ($100); AND (B) AMOUNTS PAID BY USER TO POLLY IN THE 12-MONTH PERIOD PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY HEREUNDER.
Notwithstanding the foregoing, some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated above, so the above terms may not apply to you. Instead, in such jurisdictions, the foregoing exclusions and limitations will apply to the maximum extent permitted by the laws of such jurisdictions. Also, you may have additional legal rights in your jurisdiction, and nothing in this these General Terms will prejudice such rights that you may have as a User.
Dispute Resolution; Arbitration Agreement; No Class Action
(a) Dispute Resolution. The parties must submit all claims and issues arising from, relating to, or connected with these General Terms to binding arbitration (e.g., a contract breach claim, indemnification duty issue, and questions regarding an arbitrator’s authority) in accordance with this Section. A single arbitrator will conduct the arbitration in San Francisco, CA, and in accordance with the current Rules of Practice and Procedure of the Judicial Arbitration and Mediation Service (JAMS). The arbitrator is bound by strict rules of law and these General Terms (i.e., the arbitrator may not waive, change or equitably excuse any terms or conditions, including ancillary documents (e.g., an amendment, other written agreement where these General Terms are incorporated therein)). The arbitrator does not have the power to commit errors of law or legal reasoning, and a court may vacate or correct an arbitration award because of such errors. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs all issues arising from the arbitrability or the enforcement of the agreement to arbitrate, except for the requirements to apply California state law (but disregarding any principle of law that would cause the application of the law of any other jurisdiction or permit a court, as opposed to the arbitrator, to determine the applicability or validity of these General Terms to arbitrate). The parties will equally share the arbitrators’ fees and other arbitration costs, regardless of outcome. The parties must submit or file any claim that would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same arbitration proceedings as the claim to which it relates; any such claim which is not submitted or filed will be barred. The arbitrator may only award damages and may only grant relief that is permitted by these General Terms. The arbitrator’s decision, award and relief will be conclusive and binding on the parties. Either party may enter the arbitrator’s decision, award and relief in any court having appropriate jurisdiction.
(b) No Class Action. Arbitration may only be conducted on an individual, not a class wide, basis. No arbitration proceeding between the parties may be consolidated with any other arbitration proceeding involving Polly and any other person or entity. Each party shall file and prosecute arbitration proceedings separately and individually in the name of User and Polly, and not in any representative capacity. Each party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section.
(c) Governing Law. These General Terms, and any dispute arising out of or related to these General Terms, will be governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, excluding its conflicts of law rules, regardless of User’s country of origin or where User accesses the Services. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these General Terms. All claims and issues arising from, relating to, or connected with these General Terms that an arbitrator determines are excluded from these General Terms’ arbitration requirements may only be filed and resolved by state or Federal courts located in San Francisco County, California, and each party consents to the exclusive jurisdiction of those courts. Further, Polly may obtain injunctive or other equitable relief in any court of competent jurisdictions in the event of any infringement or threatened infringement of its intellectual property rights. Neither party will claim that an aforementioned court lacks personal jurisdiction, is an inconvenient forum or is an improper venue.
(a) Entire Agreement. These General Terms constitute the entire and exclusive understanding and agreement between Polly and User regarding the Services, and these General Terms supersede and replace any and all prior oral or written understandings or agreements between Polly and User regarding the Services. If any provision of these General Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these General Terms will remain in full force and effect. User may not assign or transfer these General Terms, by operation of law or otherwise, without Polly’s prior written consent. Any attempt by User to assign or transfer these General Terms, without such consent, will be null. Polly may freely assign or transfer these General Terms without restriction. Subject to the foregoing, these General Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(b) Notices. Any notices or other communications provided by Polly, including those regarding modifications to these General Terms or any Polly other agreements or terms, will be given: (i) via email; (ii) by posting to the Services, or (iii) through the Polly proprietary platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
(c) Waiver of Rights. Polly’s failure to enforce any right or provision of these General Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Polly. Except as expressly set forth in these General Terms, the exercise by either party of any of its remedies under these General Terms will be without prejudice to its other remedies under these General Terms or otherwise.
(d) Force Majeure. Polly shall not be in default or otherwise liable for any delay in or failure of its performance under these General Terms including any provision of Services if such delay or failure arises by any reason beyond its reasonable control, including any act of God, any acts of the elements, earthquakes, floods, fires, terrorism, riots, failures or delay in transportation, internet or internet services delivery centers, or communication lines or services and data center service providers, or any act or failure to act by User or such other User’s employees, agents or contractors. Polly will promptly inform and consult with each other as to any of the above causes that in their judgment may or could be the cause of a delay in the performance of this Agreement.
(e) No Assignment. User may not assign or transfer this Agreement in any manner without the express written consent of Polly.
(f) No Waiver. The waiver or failure of Polly to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
(g) Survival. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
(h) Remedies. User agrees that in event of breach of any provision of this Agreement, Polly will be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request, without posting a bond. Polly’s right to obtain injunctive relief shall not limit its rights to seek further remedies.