Terms and Conditions
Welcome to the pearpop Website
Welcome to the pearpop Inc. ("Us" or "Our" or "We") Website
– and thank You for visiting. We hope You enjoy the experience!
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE. USING THIS WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS WEBSITE IF YOU DO NOT ACCEPT THESE TERMS.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
USING THE WEBSITE AND THE WEBSITE'S SERVICES
PASSWORD RESTRICTED AREAS OF THIS WEBSITE
CREATORS & BUYERS
LINKS TO THIRD-PARTY SITES
INTELLECTUAL PROPERTY INFRINGEMENT
DISCLAIMER OF WARRANTIES
LIMITATION OF LIABILITY
LOCAL LAWS; EXPORT CONTROL
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER
CALIFORNIA CONSUMER NOTICE
We may alter the Materials and Services We offer You and/or choose to modify, suspend or discontinue this Website at any time and without notifying You. We may also change, update, add or remove provisions (collectively, “modifications”) of these Terms from time to time. Because Everyone benefits from clarity, We promise to inform You of any modifications to these Terms by posting them on this Website and, if You have registered with Us, by describing the modifications to these Terms in an email that We will send to the address that You provided during registration. To be sure We properly reach Your email inbox, We just ask that You let Us know if Your preferred email address changes at any time after Your registration.
If You object to any such modifications, Your sole recourse shall be to cease using this Website. Continued use of this Website following notice of any such modifications indicates You acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of this Website. These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
By using this Website, You promise that You are at least 13 years of age. If You are not yet 18 years old, You must have the permission of an adult to use this Website and agree to its Terms, and that adult must be a parent or legal guardian who is willing be responsible for Your use of this Website.
We invite You to use this Website for individual, consumer purposes ("Permitted Purposes") – enjoy!
In these Terms we are granting You a limited, personal, non-exclusive and non-transferable license to use and to display the Materials; Your right to use the Materials is conditioned on Your compliance with these Terms. You have no other rights in this Website or any Materials and You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of this Website or Materials in any manner. If You make copies of any of this Website while engaging in Permitted Purposes then We ask that You be sure to keep on the copies all of Our copyright and other proprietary notices as they appear on this Website.
Unfortunately, if You breach any of these Terms the above license will terminate automatically and You must immediately destroy any downloaded or printed Materials (and any copies thereof).
USING THIS WEBSITE AND THE WEBSITE’S SERVICES.
We appreciate You visiting this Website and allow You to do just that – stop by and leisurely check it out without even registering with Us!
However, in order to access certain password-restricted areas of this Website (such as viewing this Website’s blog posts and other User Submissions (defined below)) and to use certain Services and Materials offered on and through this Website, You must successfully register an account with Us.
PASSWORD RESTRICTED AREAS OF THIS WEBSITE.
If You want an account with Us, You must submit the following information through the account registration page on this Website:
· TikTok Username;
· A working email address; and
· A preferred password.
You may also provide additional, optional information so that We can provide You a more customized experience when using this Website – but, We will leave that decision with You. Once You submit the required registration information, We alone will determine whether or not to approve Your proposed account. If approved, You will be sent an e-mail detailing how to complete Your registration. For so long as You use the account, You agree to provide true, accurate, current, and complete information which can be accomplished by logging into Your account and making relevant changes directly or contacting Us using the below contact information and We can make the changes for You. And, if You forget Your password – no worries as We will happily send a password update to Your provided email address.
You are responsible for complying with these Terms when You access this Website, whether directly or through any account that You may setup through or on this Website. Because it is Your account, it is Your job to obtain and maintain all equipment and services needed for access to and use of This Website as well as paying related charges. It is also Your responsibility to maintain the confidentiality of Your password(s), including any password of a third-party site that We may allow You to use to access this Website. Should You believe Your password or security for This Website has been breached in any way, You must immediately notify Us.
As part of the Services offered in connection with the Website (the “pearpop Marketplace”), You may be permitted to use the Services to sell personalized videos (each, a “pearpop”) as a “Creator” to other users as “Buyers”. You must be 18 years of age to sell pearpops to Buyers as a Creator. There may be additional terms applicable to the purchasing of pearpops from certain Creators on that Creator’s page or otherwise set forth on the Website. As a Creator, You acknowledge and agree that pearpops are User Submissions as set forth below and are subject to the terms, restrictions, assignments and licenses below regarding the same. You acknowledge and agree that We will receive a portion of the fees paid for any pearpops purchased via the pearpop Marketplace. You understand and agree that we merely provide the pearpop Marketplace and are not a party to any transaction regarding the purchasing or selling of pearpops and can’t and won’t be responsible for making sure that pearpops are actually provided or are up to a certain standard of quality. We don’t control the actions of any Creators or Buyers, and Creators aren’t our employees. You hereby acknowledge that We do not supervise, direct, control or monitor the Creators in their creation or selling of pearpops. You agree to indemnify Us for any losses related to your purchase or use of pearpops (as a Buyer) or your creation and sale of pearpops (as a Creator). YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT A PARTY TO THE PEARPOP TRANSACTIONS AND YOU RELEASE US FROM ANY LIABILITY RELATED THERETO OR RELATED TO PEARPOPS PURCHASED OR SOLD VIA THE PEARPOP MARKETPLACE, AND WE EXPRESSLY DISCLAIM ANY RESPONSIBILITY OR WARRANTY RELATING TO THE PEARPOPS OR CREATOR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION OR CODE.
No Creator may collect any information from or relating to a Buyer (“Buyer Information”), whether via the Services or otherwise, beyond what is necessary to create and sell the pearpop to the applicable Buyer from or about whom such Buyer Information was collected. Creator also must not use any Buyer Information beyond what is necessary to create and sell the pearpop for such applicable Buyer. Upon the conclusion of Creator’s creation and sale of the pearpop to the applicable Buyer (or otherwise upon the request of such Buyer or Us), Creator must properly destroy all Buyer Information from or relating to such Buyer and make no further use of it whatsoever. Creator must collect, use, maintain, and transmit all Buyer Information in compliance with all applicable laws.
If there is a dispute between participants on the Website or Services, or between users and any third party, You agree that We are under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Us, Our directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or Our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
You agree to pay all applicable fees related to Your use of this Website and Our Services which are described fully on Our Payment Page available at [link] (the “Paid Services”). Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms.
We may suspend or terminate Your account and/or access to Our Services and this Website if Your payment is late and/or Your offered payment method (e.g., credit card or PayPal account) (“Payment Method”) cannot be processed. By providing a Payment Method, You expressly authorize Us to charge the applicable fees on said Payment Method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on Your particular membership and utilized services. You agree to make payment using that selected Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor (as defined below), do not receive payment from you, you agree to pay all amounts due on your Billing Account (as defined below) upon demand.
We understand that You might cancel Your account, but please know that We will not provide any refund(s) and You will be responsible for paying any balance due on the account. To make things less complicated, You agree that We may charge any unpaid fees to Your provided Payment Method and/or send You a bill for such unpaid fees.
Payments will be processed by third-party payment processors (the “Payment Processors”) through a payment account linked to Your account on the Services (your “Billing Account”) for use of the Paid Services. Currently, We use Stripe, Inc., PayPal and HyperWallet as Our Payment Processors, and You can access their Terms of Services at https://stripe.com/legal, https://www.paypal.com/us/webapps/mpp/ua/useragreement-full, and https://sellers.hyperwallet.com/hw2web/consumer/page/show.xhtml?page=userAgreement, respectively, and their Privacy Policies at https://stripe.com/us/privacy, https://www.paypal.com/us/webapps/mpp/ua/privacy-full, and https://www.hyperwallet.com/privacy-policy/, respectively. The processing of payments will be subject to the terms, conditions and privacy policies of the applicable Payment Processor in addition to these Terms, and You agree, as a condition to making payments as a Buyer or receiving payments as a Creator, to abide by the terms and conditions of such Payment Processors, as the same may be updated from time to time. Breach of the terms and conditions provided by such Payment Processors can lead to payments being withheld in addition to any other rights or remedies We may have at law or under these Terms. We are not responsible for any error by, or other acts or omissions of, the Payment Processors. By choosing to use Paid Services, You agree to pay Us, through the Payment Processors, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and You authorize us, through the applicable Payment Processor, to charge Your chosen Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.
YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
If the amount to be charged to Your Billing Account varies from the amount You preauthorized (other than due to the imposition or change in the amount of state sales taxes), You have the right to receive, and We shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement You have with Your payment provider will govern Your use of your Payment Method. You agree that We may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
Your non-termination or continued use of a Paid Service reaffirms that We are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and You will be responsible for such charges. This does not waive our right to seek payment directly from You. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when You initially selected to use the Paid Service.
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if You are a child under 13 years of age, please do not attempt to register for or otherwise use the Services or send Us any personal information. If We learn We have collected personal information from a child under 13 years of age, We will delete that information as quickly as possible. If You believe that a child under 13 years of age may have provided Us personal information, please contact Us at [email protected]
LINKS TO THIRD-PARTY SITES.
We think links are convenient, and We sometimes provide links on this Website to third-party websites. If You use these links, You will leave this Website. We are not obligated to review any third-party websites that You link to from this Website, We do not control any of the third-party websites, and We are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, We do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If You decide to access any of the third-party websites linked to from this Website, You do this entirely at Your own risk and You must follow the privacy policies and terms and conditions for those third-party websites.
Certain areas of this Website may permit You to submit feedback, information, data, text, software, messages, or other materials (each, a "User Submission"). You agree that You are solely responsible for all of Your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary, and You represent and warrant that You have all rights necessary to contribute, in any manner, the User Submission to the Services, in the manner in which You contribute it. Further, We do not guarantee that You will be able to edit or delete any User Submission You have submitted.
Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such information or content originated, and You access all such information and content at your own risk, and We aren’t liable for any errors or omissions in that information or content or for any damages or loss You might suffer in connection with it. We cannot control and have no duty to take any action regarding how You may interpret and use such information or content (including without limitation any User Submissions) or what actions You may take as a result of having been exposed to such information or content, and You hereby release us from all liability for You having acquired or not acquired such information or content through the Services. We can’t guarantee the identity of any users with whom You interact in using the Services and are not responsible for which users gain access to the Services.
By submitting any User Submission, You are promising Us that:
· You own all rights in Your User Submissions (including, without limitation, all rights to the reproduction and display of Your User Submissions) or, alternatively, You have acquired all necessary rights in Your User Submissions to enable You to grant to Us the rights in Your User Submissions as described in these Terms;
· You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of Your User Submissions;
· Your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
· You voluntarily agree to waive all "moral rights" that You may have in Your User Submission;
· Any information contained in Your User Submission is not known by You to be false, inaccurate, or misleading;
· Your User Submission does not violate any law and does not encourage the violation of any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, marijuana, alcohol or drug use, or false advertising);
· Your User Submission does not promote drug, alcohol or marijuana use;
Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another's privacy;
· You were not and will not be compensated or granted any consideration by any third party for submitting Your User Submission;
· Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than Your own);
· Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
· Your User Submission does not contain any information that You consider confidential, proprietary, or personal; and
· Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
By submitting a User Submission, You grant to Us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:
· Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display Your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
· Use (and permit others to use) Your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that We deem appropriate in Our sole discretion (including, without limitation, to incorporate Your User Submission or any modification thereto, in whole or in part, into any technology, product, or service);
· Display advertisements in connection with Your User Submissions and to use Your User Submissions for advertising and promotional purposes.
We may, but are not obligated to, pre-screen User Submissions or monitor any area of this Website through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through this Website and may remove at any time or refuse any User Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, You agree that We may freely disclose Your User Submission to any third party absent any obligation of confidence on the part of the recipient.
To be clear, We authorize Your use of this Website only for Permitted Purposes. Any other use of this Website beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of this Website. This is because as between You and Us, all rights in this Website remain Our property.
Unauthorized use of this Website may result in violation of various United States and international copyright laws. Because We prefer keeping this relationship drama-free, We want to give You examples of things to avoid. So, unless You have written permission from Us stating otherwise, You are not authorized to use this Website in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):
· For any public or commercial purpose which includes use of this Website on another site or through a networked computer environment;
· In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of this Website;
· In a manner that violates or that encourages any third party to violate any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
· To stalk, harass, or harm another individual;
· To impersonate any person or entity or otherwise misrepresent Your affiliation with a person or entity;
· To interfere with or disrupt this Website or servers or networks connected to this Website;
· To use any data mining, robots, or similar data gathering or extraction methods in connection with this Website; or
· Attempt to gain unauthorized access to any portion of this Website or any other accounts, computer systems, or networks connected to this Website, whether through hacking, password mining, or any other means.
You agree to hire attorneys to defend Us if You violate these Terms and that violation results in a problem for Us. You also agree to pay any damages that We may end up having to pay as a result of Your violation. You alone are responsible for any violation of these Terms by You. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with Our defense of such claim.
"Pearpop" is a trademark that belongs to Us. All names, logos, and brands of third parties (e.g., TikTok, Instagram, and their respective logos) displayed on our site are trademarks of their respective owners. pearpop and its products and services are not endorsed by, sponsored by, or affiliated with these third parties. Our use of these names, logos, and brands is for identification purposes only, and does not imply any endorsement, sponsorship, or affiliation.
Unless otherwise specified in these Terms, all Materials, including the arrangement of them on this Website are Our sole property, Copyright © 2021, pearpop, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
INTELLECTUAL PROPERTY INFRINGEMENT.
We respect the intellectual property rights of others and encourage You to do the same. Accordingly, We have a policy of removing User Submissions that violate intellectual property rights of others, suspending access to this Website (or any portion thereof) to any user who uses this Website in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the this Website in violation of someone’s intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, We have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If You believe Your copyright or other intellectual property right is being infringed by a user of this Website, please provide written notice to Our Agent for notice of claims of infringement:
Attn: Peter Han, DMCA Agent, pearpop, Inc.
5101 Santa Monica Blvd
Los Angeles, CA 90029
Email: [email protected]
To be sure the matter is handled immediately, Your written notice must:
· Contain Your physical or electronic signature;
· Identify the copyrighted work or other intellectual property alleged to have been infringed;
· Identify the allegedly infringing material in a sufficiently precise manner to allow Us to locate that material;
· Contain adequate information by which We can contact You (including postal address, telephone number, and e-mail address);
· Contain a statement that You have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner's agent or the law;
· Contain a statement that the information in the written notice is accurate; and
· Contain statement, under penalty of perjury, that You are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.
Submitting a DMCA Counter-Notification
We will notify You that We have removed or disabled access to copyright-protected material that You provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, You may provide Our Agent with a written counter-notification that includes the following information:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from You under the penalty of perjury, that You have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that You consent to the jurisdiction of a court for the judicial district in which Your physical address is located, or if Your physical address is outside of the United States, for any judicial district in which We may be located, and that You will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
We reserve the right, in Our sole discretion, to terminate the account or access of any user of this Website or Service who is the subject of repeated DMCA or other infringement notifications.
DISCLAIMER OF WARRANTIES.
THIS WEBSITE AND THE SERVICES, INCLUDING WITHOUT LIMITATION THE PEARPOP MARKETPLACE AND THE PEARPOPS BOUGHT AND SOLD VIA THE PEARPOP MARKETPLACE, ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS WEBSITE IS WITH YOU.
WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THIS WEBSITE, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE WEBSITE IS FREE OF PROBLEMS. Without limiting the generality of the foregoing, We make no warranty that this Website will meet Your requirements or that this Website will be uninterrupted, timely, secure, or error free or that defects in this Website will be corrected. We make no warranty as to the results that may be obtained from the use of this Website or as to the accuracy or reliability of any information obtained through this Website. No advice or information, whether oral or written, obtained by You through this Website or from Us or Our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.
LIMITATION OF LIABILITY.
WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS WEBSITE, INCLUDING WITHOUT LIMITATION RELATED TO THE BUYIING AND/OR SELLING OF PEARPOPS VIA THE PEARPOP MARKETPLACE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL COMPANY’S LIABILITY EXCEED THE GREATER OF (I) $100 OR (II) THE AMOUNTS YOU PAY US FOR USE OF, OR IN CONNECTION WITH, THE SITE.
LOCAL LAWS; EXPORT CONTROL.
We control and operate this Website from Our headquarters in the United States of America and the entirety of this Website may not be appropriate or available for use in other locations. If You use this Website outside the United States of America, You are solely responsible for following applicable local laws.
Any submissions by You to Us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and We are free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant Us an exclusive, perpetual, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as We may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that We are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please Read This Provision (the “Provision”) Carefully. It Affects Your Legal Rights.
This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as Our licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against Us in the same proceeding.
This Provision provides that all disputes between You and Us shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of Your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because We believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions).
EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve the Dispute which is first done by emailing to Us at [email protected] the following information: (1) Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of the specific relief You seek. If We do not resolve the Dispute within 45 days after receiving Your notification, then You may pursue Your Dispute in arbitration.
You may pursue Your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, Your or We may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”).
You may opt-out of this Provision by emailing Us at [email protected] the following information: (1) Your name; (2) Your address; (3) A clear statement that You do not wish to resolve disputes with Us through arbitration. Either way, We will not take any decision You make personally. In fact, We promise that Your decision to opt-out of this Arbitration Provision will have no adverse effect on Your relationship with Us. But, We do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or We may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
Because this Website and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or We may initiate arbitration in either California or the federal judicial district that includes Your billing address.
Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, We will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon Your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both You and We specifically agree to do so in writing following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by accepting this Provision in these Terms, You and We are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive the termination of Your account with Us or Our affiliates and Your discontinued use of this Website. Notwithstanding any provision in these Terms to the contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), You may reject any such change and require Us to adhere to the present language in this Provision if a dispute between Us arises.
The Parties hereto have expressly required that these Terms and all documents and notices relating thereto be drafted in the English language.
We think direct communication resolves most issues – if We feel that You are not complying with these Terms, We will tell You. We will even provide You with recommended necessary corrective action(s) because We value this relationship.
However, certain violations of these Terms, as determined by Us, may require immediate termination of Your access to this Website without prior notice to You. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or this Website will be heard in the courts located in Los Angeles County, California. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, We are not waiving Our rights. These Terms are the entire agreement between You and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about this Website. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Our prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent. The proprietary rights, disclaimer of warranties, representations made by You, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
CALIFORNIA CONSUMER NOTICE.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Website and Service are provided by pearpop, Inc. If You have purchased anything from the Site or through the Service, a description of what You have purchased and relevant pricing information are posted as part of the ordering process for this Site (please consult Your individual purchase confirmation e-mail for the charges You incurred). If You have a question or complaint regarding the Website or Service, please contact Customer Service at [email protected] You may also contact Us by writing pearpop, Inc., 5101 Santa Monica Blvd., Suite 8, PMB 36, Los Angeles, CA 90029. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
If You have any questions about these Terms or otherwise need to contact Us for any reason, You can reach Us at [email protected]