Ponga, Inc. (“Ponga”, “we” or “us”) offers services and applications that include the www.ponga.com website and may include additional websites, online services, mobile applications, content (e.g., widgets and feeds), and other services or applications offered by us from time to time (collectively, the “Ponga Services”). These terms of service (“Terms of Service”), together with any additional posted policies, rules and guidelines applicable to the Ponga Services (including but not limited to our Usage Rules and our Privacy Notice) and any consents and disclosures set forth in the Ponga registration process, all of which are incorporated herein by reference, constitute a binding legal agreement (the “Agreement”) between you individually (“you” or “User”) and Ponga. Our access to, and use of, the Ponga Services is conditioned on your compliance with this Agreement. Ponga may also offer other services that are governed by different terms of service.
This Agreement applies to all users of Ponga Services, whether you have registered or created an account with Ponga or whether you use Ponga Services without being registered or creating an account. By clicking "Sign Up" where indicated during the registration process, by creating an Account or by simply accessing or using the Ponga Services, you acknowledge that you have read and understood the terms of this Agreement and that you agree to be bound by them. If you do not agree to (or cannot comply with) the terms of this Agreement, then Ponga is unwilling to permit you to use the Ponga Services, and you should discontinue your use immediately.
In consideration of your use of the Ponga Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Services under the laws of the United States or other applicable jurisdiction. All the Ponga Services are available only for individuals aged 14 years or older. If you are 14 or older but under 18 or the legal age to form a binding contract in your local jurisdiction, then you agree to review this agreement with your parent guardian to make sure that both you and your parent or guardian understand and agree to this Agreement before you use the Ponga Services. You represent that your parent or guardian has reviewed and accepted this Agreement on your behalf through the Ponga registration process or by authorizing your access to and use of the Ponga Services. If you are a parent or guardian entering into this Agreement for the benefit of a child over 14, then you agree to and accept full responsibility for that child’s use of the Ponga Services, including all financial charges and legal liability that he or she may incur.
YOU ACKNOWLEDGE AND AGREE THAT PONGA HAS OFFERED THE PONGA SERVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH BELOW IN THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND PONGA, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND PONGA. PONGA WOULD NOT BE ABLE TO PROVIDE THE PONGA SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
In order to access or continue to access some or all of the Ponga Services, you may have to register with Ponga. As part of the registration process, you will be required to provide certain information to Ponga. You agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Ponga Service's registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Ponga has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Ponga has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
When you register for the Ponga Services you may be asked to provide a password. We recommend passwords that use a combination of upper and lower case letters, numbers and symbols. As you will be responsible for all activities that occur under your password, you should keep your password strictly confidential at all times. YOU MUST NOTIFY PONGA IMMEDIATELY OF ANY UNAUTHORIZED USE OF YOUR PASSWORD OR IF YOU BELIEVE THAT YOUR PASSWORD IS NO LONGER CONFIDENTIAL AND KNOWN ONLY TO YOU. We reserve the right to suspend your account and/or require you to alter your password if we believe for any reason that your password is no longer secure. We are not liable for any loss or damage arising from your failure to comply with the above requirements.
By creating an account with Ponga, you consent to the use of: (i) electronic means to complete this Agreement and to provide you with any notices pursuant to this Agreement; and (ii) electronic records to store information related to this Agreement or your use of the Ponga Services. Ponga cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
If you are a registered user of certain third party websites, services or applications, Ponga may provide you with the option of providing Ponga with your username, password and other credential information ("Credentials") to such third party website, service or application in order to register with Ponga through such third party website, service or application or in order for you to link your account with such third party website, service or application with your Ponga account. Ponga will only use your Credentials to access your account with the applicable third party website, service or application accounts to the extent necessary to access information to register your Ponga account or to provide you with the applicable Ponga Services and will otherwise keep your Credentials confidential. Any personal information transferred from your account with such third party website, service or application to your Ponga account will be collected used and disclosed by us only in accordance with our Privacy Notice.
Ponga is constantly innovating and changing the Ponga Services as we deem appropriate. You agree that Ponga may change some or all of the Ponga Services, add additional Ponga Services, stop (permanently or temporarily) providing a Ponga Service or any portion of a Ponga Service to you or to Users generally, restrict access to certain Ponga Services or impose limits on certain Ponga Services (such as restricting such Ponga Services to paying Users) in each case at any time, for any reason, and without notice to you. Unless otherwise indicated, any changed or additional Ponga Services offered by Ponga from time to time will be subject to the terms and conditions of this Agreement.
Ponga's Privacy Notice is hereby incorporated into this Agreement by reference. Please read this notice carefully for disclosures relating to the collection, use, and disclosure of your personal information. You understand that through your use of the Ponga Services, you consent to our collection, storage and use of your information as described in our Privacy Notice.
Select features of Ponga Services are made available to users free of charge. Other features are available on a fee basis. Ponga reserves the right to charge a fee for using these and other Ponga Services at any time. If we notify Users of a charge for use of all or certain existing Ponga Services, and you elect to use or continue to use such Ponga Services after such notice, you agree to the pricing and payment terms posted by Ponga for such Ponga Services. We may further change such fees and payment terms or add new aspects of Ponga Services for additional fees and on different payment terms, in each case at our discretion. If you do not wish to pay such fees, you may discontinue your use of such Ponga Services (or if fees are required for use of all Ponga Services, terminate your Account in accordance with this Agreement) prior to such fees going into effect.
The Ponga Services are owned and operated by Ponga. The software, content, visual interfaces, information, graphics, design, compilation, computer code, products, services, applications, including, but not limited to, the mobile device applications, and all other elements of the Ponga Services (collectively, the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Ponga Services are the property of Ponga or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names used to deliver Ponga Services are proprietary to Ponga or its affiliates and/or third-party licensors. Except as expressly authorized by Ponga, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
You understand that all content (such as photographs, images, graphics, video, audio files, written text, message, tags, software or other materials) which you have access to as part of, or through your use of the Ponga Services, whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such content originated. All such information is referred to as “Content”. You should be aware that Content presented to you as part of the Ponga Services may be protected by intellectual property rights. Unless you have been specifically told that you may do so by Ponga or by the owners of that Content in a separate agreement, you may use such Content only in the context of the Ponga Service with which it is presented and may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of such Content.
Much of the Content displayed on or through the Ponga Services is Content that is Content submitted, posted or displayed by Users (such as User Submissions described below) or otherwise provided by third parties. Ponga does not control such Content and therefore does not guarantee the accuracy, integrity, quality, usefulness, safety, appropriateness or intellectual property rights of or relating to such Content. You understand that by using the Ponga Services, you may be exposed to Content that is inaccurate, offensive, indecent or objectionable and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Ponga with respect thereto. Ponga may not pre-screen Content for appropriateness, but Ponga reserves the right to pre-screen, filter, modify, refuse, or remove any or all Content from any Ponga Service.
You agree that you must evaluate, and bear all risks associated with, your use of any Content. Content is provided to you, and by you, “as is” for your personal use only, and may not be used, downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited for any commercial purposes or any other purposes whatsoever except as expressly permitted under this Agreement or with the prior written consent of Ponga or the respective Content owner.
Ponga provides users with a means to create, share and store information in the form of photos, scanned text, drawings or other images, location information, notes, comments, links, contact details, specifications, dates, and other information in a form collectively referred to as a “Ponga Picture”. A Ponga Picture may include components made up of one or more items created through third-party services or applications which services or applications interface or interoperate with the Ponga Services or which items are otherwise usable within the Ponga Services. Your Ponga Pictures may create meaning in their assembly.
The Ponga Services allow Users to submit Ponga Pictures and other Content by commenting on or otherwise contributing Content to the Ponga Pictures of other Users or participating in other community activities that Ponga may offer from time to time, such as user forums, chat rooms, message boards or blogs, and the hosting, sharing and/or publishing of such Content. All such Content submitted by Users is referred to as "User Submissions". You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use, and authorize Ponga to use, all intellectual property and any other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Ponga Services and this Agreement; (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission or with respect to which any personal information is included in the User Submissions to use the name or likeness of each and every such identifiable individual person or such personal information to enable inclusion and use of the User Submissions in the manner contemplated by the Ponga Services and this Agreement; and (iii) all User Submissions shall comply with all requirements as outlined in Usage Rules. Violations may result in account termination as outlined in Section 13. Termination.
In order to enable Ponga to operate the Ponga Services, we must obtain from you certain license and other rights to your User Submissions (so that our processing, maintenance, storage, technical reproduction, back-up and distribution, and related handling of your User Submissions doesn’t infringe applicable copyright and other laws). Accordingly, by using the Ponga Services and posting User Submissions, you grant Ponga a license to display, perform and distribute your User Submissions, and to modify (for technical purposes) and reproduce such User Submissions to enable Ponga to operate the Ponga Services. (You also agree that Ponga has the right to elect not to accept, post, store, display, publish or transmit any User Submission in our sole discretion.) You agree that these rights and licenses are royalty-free, irrevocable and worldwide, and include a right for Ponga to make such User Submissions available to, and pass these rights along to, others with whom Ponga has contractual relationships related to the provision of the Ponga Services, solely for the purpose of providing such services, and to otherwise permit access to your User Submissions to third parties if Ponga determines such access is necessary to comply with its legal obligations and for the other limited purposes described in our Privacy Notice.
Except for the limited license and other rights granted in this Agreement, you retain all of the ownership rights you had in your User Submissions before you submitted it. Unless you elect to enable others to view or have access to the User Submissions you submit to the Ponga Services, no other Users of the Ponga Services should see your User Submissions without your consent. Of course, if you do elect to publish and share any portion of your User Submissions, then, in doing so, if you provide them with the full access permitted by the Ponga Services you are enabling each of those Users of Ponga access to use, display, perform, distribute, modify and create derivative works of your Content (subject to any understandings or agreements you and such Users may work out without Ponga's involvement).
Ponga assumes no responsibility whatsoever in connection with or arising from User Submissions. You understand that whether or not such User Submissions are published, Ponga does not guarantee any confidentiality with respect to any User Submissions. Ponga assumes no responsibility for actively monitoring User Submissions for inappropriate content. If at any time Ponga chooses, in its sole discretion, to monitor User Submissions, Ponga nonetheless assumes no responsibility for the content of the User Submissions, no obligation to modify or remove any inappropriate User Submissions, and no responsibility for the conduct of the User submitting User Submissions. Further, Ponga does not endorse and has no control over the content of User Submissions submitted by other Users. Ponga makes no warranties, express or implied, as to the content of User Submissions or the accuracy and reliability of any User Submissions. Nonetheless, Ponga reserves the right to prevent you from submitting User Submissions and to edit, restrict or remove User Submissions for any reason at any time.
We retain the right, at our sole discretion, to implement limits to the nature or size of storage available to you, the number or size of uploads, downloads, email messages or other transmissions, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your User Submissions and other data, and impose other limitations at any time, with or without notice. You acknowledge that a variety of Ponga actions may impair or prevent you from accessing your User Submissions or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Ponga has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Use of the Ponga Services and transfer, posting and uploading of software, technology, and other technical data via the Ponga Services may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. The Ponga Services are controlled and operated from facilities in the United States. You may not use the Ponga Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Ponga Services are solely directed to individuals, companies, or other entities located in the United States.
The Ponga Services may include links to or may otherwise enable you to access third party websites, services or application solely as a convenience to Users. You may further be able to access or use the Ponga Services through certain third party websites, services or applications. Ponga does not endorse or make any express or implied warranties with regard to any such third party sites, services or applications or the information, material, products or services contained on such third party sites, services or applications or accessible through such third party sites, services or application. Access and use of third party websites, services or applications, including information, material, products and services on such sites, services or applications or available through such sites, services or applications is solely at your own risk.
Parties other than Ponga may further provide services or sell products via the Ponga Services. In some cases such services or products may be specifically designed to interoperate or interface with the Ponga Services. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or the content of their product and service offerings. Ponga does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties.
You should carefully review the terms and conditions and privacy statements applicable to such third party offerings, as you are solely responsible for compliance with such terms and conditions and privacy statements. Even if Ponga handles the billing, payment processing and/or fulfillment for the third-party service or product, unless otherwise expressly indicated such products and services are sold or licensed to you directly by such third-party and therefore your use of such products and services are governed by the applicable third-party terms and conditions. In such case, you will be subject to such terms and conditions and agree that any matters relating to your use of such product or service, including any customer support or maintenance, will be between you and such vendor, and Ponga will have no liability with respect thereto.
As a condition of use of the Ponga Services, you agree to comply with the Usage Rules for the Ponga Services as posted by us from time to time.
PONGA RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS MONITOR ANY USER'S REGISTRATION ATTEMPTS. PONGA ALSO RESERVES THE RIGHT TO REFUSE ACCESS TO ANY USER OR TO DISABLE ANY USER'S USE OF OR ACCESS TO THE PONGA SERVICES, FOR ANY REASON AND WITHOUT ANY NOTICE.
You alone are responsible for your involvement with other Users. Ponga reserves the right, but has no obligation, to monitor disagreements between you and other Users.
You may discontinue your use of the Ponga Services at any time. You may further cancel your Ponga account by providing us with written notice to email@example.com. Once you have cancelled your subscription to Ponga Services your Account shall be maintained in suspense. You will be able to continue to access your Account in a “view only” mode. All other features or privileges that are included as part of a paid Membership Subscription to Ponga Services shall be rescinded and unavailable until such time as the expired or terminated subscription is renewed. You agree that Ponga, in the good faith belief that you have violated any of the terms and conditions of this Agreement, may terminate any account or subscription (or any part thereof) you have with the Ponga Services or use of the Ponga Services and remove and discard all or any part of your account or any User Submission, at any time. You further agree that Ponga may terminate any part of the Ponga Services or may refuse access to you or disable your use of or access to your account any part of the Ponga Services, at any time and for any reason. You agree that any termination of your access to the Ponga Services or any account you may have or portion thereof may be effected without prior notice, and you agree that Ponga will not be liable to you or any third-party for any such termination. Ponga does not permit copyright infringing activities on the Ponga Services, and reserves the right to terminate access to the Ponga Services, and remove all content submitted, by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Ponga Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Ponga may have at law or in equity.
THE PONGA SERVICES AND ANY CONTENT OR THIRD PARTY PRODUCTS OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PONGA SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. PONGA AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
PONGA AND ITS SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PONGA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PONGA SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
PONGA, AND ITS SUPPLIERS AND LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT OR THE PONGA SERVICES IN TERMS OF SECURITY, SAFETY, CORRECTNESS, ACCURACY, RELIABILITY, AVAILABILITY, OR OTHERWISE. YOU (AND NOT PONGA OR ITS SUPPLIERS OR LICENSORS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION RELATED TO THE PONGA SERVICES. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE PONGA SERVICES AT YOUR OWN DISCRETION AND RISK.
Some jurisdictions do not allow the disclaimer or limitation of certain implied warranties, so the foregoing disclaimers or limitations may not apply to you. To the extent that in a particular circumstance any disclaimer or limitation set forth in this Section is prohibited by applicable law, then, instead of the provisions hereof in such particular circumstance, Ponga shall be entitled to the maximum disclaimers and/or limitations available at law and equity in that particular circumstance.
You agree to indemnify, defend, and hold Ponga, its affiliated companies, and its suppliers and partners harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys' fees, arising out of or related to (a) your use or misuse of the Ponga Services or any data or content submitted or received by you, (b) any infringement, violation or misappropriation of the rights of any other person or entity by you, including without limitation any proprietary or intellectual property right or any rights of privacy or publicity, (c) any breach or violation by you of this Agreement, (d) your violation of any applicable law, rule or regulation; (e) any claim or damages that arise as a result of any of your User Submissions or other content that is submitted via your account; or (f) any other party’s access and use of the Ponga Services with your unique username, password or other appropriate security code.. Ponga reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with and provide any necessary information for our defense of these claims.