last updated: june 22, 2015
The terms of this Agreement apply to all visitors and users of the Company Sites. Certain products, services, functionality, content or materials available on or through the Company Site may also be subject to additional guidelines, rules, terms and conditions which may be posted from time to time including without limitation the Terms of Service available at https://www.posiba.com/terms-of-service which are incorporated herein by reference. If you access, use or purchase such products, services, functionality, content or materials, then you will also be subject such additional guidelines, rules, terms and conditions, all of which are hereby incorporated by reference into this Agreement. Your use of the Company Site is governed by this Agreement regardless of how you access the Company Site, including through the Internet, through Wireless Access Protocol (commonly referred to as "WAP"), through a mobile network or otherwise.
Acceptance of Terms
We make the Company Site available subject to this Agreement including any additional guidelines, rules, terms and conditions as referenced in this document. By registering for, or otherwise accessing or using the Company Site (or any portion of the Company Site), you agree to the terms of this Agreement. If you do not agree to this Agreement, you may not access or use the Company Site. The Company Site is available to individuals 13 years of age and older. If you are 13 or older but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it and agree with these terms. We may update or make changes to this Agreement from time to time and we may provide you notice of these changes by any reasonable means, including by posting the revised version of this Agreement on the Company Site. You can determine when we last updated this Agreement by referring to the "LAST UPDATED" legend at the top of this Agreement. Accessing or using the Company Site following changes to this Agreement will constitute your acceptance of those changes. For clarity, however, any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
The Company Site is based in the United States. We make no claims concerning whether the Company Site including any content or materials may be downloaded, viewed, or be appropriate for use outside of the United States, and is not intended to subject us to the laws or jurisdiction of any state, country or territory other than those of the United States. In choosing to access and use the Company Site, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. You are also subject to United States export controls and are responsible for any violations of such controls, including any United States embargoes or other federal rules and regulations restricting exports. We may limit the Company Site's availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
Representations and Warranties
You represent and warrant that (a) you possess all necessary rights and permissions with respect to any information that you provide in connection with your use of the Company Site and that providing such information does not violate any applicable laws, regulations or rights of third parties; (b) all such information is and will remain true, accurate, and complete, and you will maintain and update such information regularly.
Rules of Conduct
In connection with the Company Site, you must not:
Post, transmit, or otherwise make available any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right without the express prior written consent of the applicable owner.
Post, transmit, introduce, upload or otherwise make available any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or may be harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
Use the Company Site for any fraudulent, tortious or unlawful purpose.
Harvest or collect information about other users of the Company Site (except to the extent such information is specifically made available to you as part of the services or functionality that we provide to you through the Company Site).
Impersonate any person or entity; falsely state or otherwise misrepresent your affiliation with us or the Company Site or any other person or entity; or express or imply that we endorse any statement you make.
Interfere with or disrupt the operation of the Company Site or the servers or networks used to make the Company Site available; or violate any requirements, procedures, policies or regulations of such networks.
Restrict or inhibit any other person from using the Company Site (including by hacking or defacing any portion of the Company Site).
Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of or access to) the Company Site except as expressly authorized herein.
Reverse engineer, decompile or disassemble any portion of the Company Site.
Remove any copyright, trademark or other proprietary rights notice from the Company Site or materials obtained from the Company Site.
Frame or mirror any portion of the Company Site, or otherwise incorporate any portion of the Company Site into any product or service, except as expressly authorized herein.
Systematically download or store Company Site content (other than reports or similar content that are specifically made available by us to you for download through the Company Site).
Use any robot, spider, search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or in any way gather Company Site content or reproduce or circumvent the navigational structure or presentation of the Company Site. We may grant operators of public search engines permission to use spiders to copy materials from the Company Site for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials. We reserve the right to revoke these permissions at any time without notice either generally or in specific cases.
Registration; User Names and Passwords
You may be required to register and be granted a user name and password before you can use or access portions of the Company Site. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not Posiba, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Company Site account. Posiba will not be liable for any loss or damage arising from your failure to properly safeguard your account or password. By registering with the Company Site, or accessing or using the Company Site, you represent and warrant that you and/or your parent or guardian are of legal age to enter into and be bound by this Agreement. You may not register with, or access or use, the Company Site if you are not of legal age.
Changes to the Company Site
We may, at any time and with or without notice, temporarily or permanently modify, suspend or discontinue the Company Site in whole or in part; charge fees in connection with the use of the Company Site; modify or waive any fees charged in connection with the Company Site; or offer opportunities and/or special pricing to some or all users of the Company Site. You agree that Posiba is not liable to you or to any third party for any modification, suspension or discontinuance of the Company Site, or of any products, services, content, or functionality offered on or through the Company Site. Your continued use of the Company Site after such changes will indicate your acceptance of such changes.
Donations and Transactions
If you purchase any products or services and or make donations through the Company Site (each a "Transaction"), you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address and your shipping information. You represent and warrant that you have the right to use any credit card that you submit in connection with a transaction and shall be legally responsible for the payment of such credit card. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction. By making a Transaction, you represent that the applicable products and services will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit or discontinue the availability of any product or service; to change the price of any product or service; to impose conditions on any coupon, discount or similar promotion; to bar any user from making any Transaction; and to refuse to provide any user with any product or service. You agree to pay all charges incurred by you or on your behalf through the Company Site, at the prices in effect when such charges are incurred. In addition, you are responsible for any taxes applicable to your Transactions. While it is our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell or provide a product or service.
The Company Site may provide functionality that enables you to upload or submit information, content or materials, including through discussions forums and message boards, user profiles, voting mechanisms, chat and commenting functionality, or other interactive features and such information, content and materials is referred to as "Submissions." You will retain ownership of any intellectual property rights that you may have in such Submissions, and you hereby grant to us a worldwide, non-exclusive, transferable, sublicenseable (through multiple tiers), royalty-free, fully paid-up, perpetual, irrevocable right and license, without additional compensation to you or any third party: to use, disclose, reproduce, distribute, adapt (including to edit, modify, translate and reformat), create derivative works of, transmit, publicly display, publicly perform and otherwise make use of such Submissions, in any media now known or hereafter developed. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE POSIBA PLATFORM, YOU DO SO AT YOUR OWN RISK.
If you make any comments or suggestions to us or any of our employees, officers, directors, affiliates, agents, representatives, licensors, suppliers or service providers (collectively, "Affiliated Entities") with respect to the Company Site or any products or services that we or any Affiliates Entities provide ("Feedback"), then such Feedback will be deemed a Submission and will be subject to the license granted above, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place us or any Affiliated Entities under any fiduciary or other obligation.
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision of Submissions through or in connection with the Company Site, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any "moral rights" or other rights with respect to attribution of authorship or integrity of materials regarding any Submission that you may have under any applicable law under any legal theory.
We may (but have no obligation to) monitor, evaluate, alter or remove Submissions before or after they appear on the Company Site. We may disclose any Submissions and the circumstances surrounding their transmission to anyone for any reason or purpose.
Our Proprietary Rights
The Company Site is and will remain the property of Posiba and its licensors and suppliers, and may be protected by copyright, trademark, trade secret, patent and other proprietary rights and laws. Subject to your compliance with this Agreement, you may access and use the Company Site for its intended purpose as described in this Agreement, as and in the form provided by us, unless and until we terminate your use or access.
Our trade names, trademarks and service marks include "Posiba," "givn" and any associated logos. All trademarks, service marks, trade names and logos on the Company Site not owned by us are the property of their respective owners. You may not use any of our trademarks, service marks, trade names or logos in connection with any product or service that is not ours or in any manner that is likely to cause confusion. Nothing contained on the Company Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trademarks, service marks, trade names or logos.
Third Party Materials; Links
The Company Site may provide links to other websites and online resources, or otherwise make available access to third party materials including Submissions (all such links, resources and materials, "Third Party Materials"). We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, integrity, quality, legality, usefulness or safety of Third Party Materials. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement will be deemed to be a representation or warranty by us or any Affiliated Entity with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials at any time. In addition, the availability of any Third Party Materials through the Company Site does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider. YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS). YOU AGREE THAT WE WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY.
Disclaimer of Warranties
THE POSIBA SITE INCLUDING ANY PRODUCTS, SERVICES, FUNCTIONALITY, INFORMATION, CONTENT AND MATERIALS MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE POSIBA SITE ARE PROVIDED TO YOU "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE POSIBA SITE, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY PRODUCTS, SERVICES, FUNCTIONALITY, INFORMATION, CONTENT AND MATERIALS AVAILABLE THROUGH OR IN CONNECTION WITH THE POSIBA SITE. POSIBA AND ITS AFFILIATED ENTITIES DISCLAIM ALL WARRANTIES WITH RESPECT TO THE POSIBA SITE TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE.
While we try to maintain the integrity and security of the Company Site and the servers from which the Company Site is operated, we do not guarantee that the Company Site will be or remain secure, complete or correct, or that access to the Company Site will be uninterrupted. The Company Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Company Site. If you become aware of any unauthorized third-party alteration to the Company Site, contact us at [email protected], or at Posiba, Inc. Attn: Terms Administrator, 600 West Broadway, Suite 700, San Diego, CA 92101 with a description of the materials at issue and the URL or location on the Company Site where such materials appear.
Limitation of Liability
POSIBA AND THE AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLDUING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, OR LOSS OF OR DAMAGE TO DATA OR INFORMATION, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE POSIBA PLATFORM IS TO STOP USING THE POSIBA PLATFORM. THE TOTAL MAXIMUM LIABILITY OF POSIBA AND THE AFFILIATED ENTITIES ARISING FROM OR RELATING TO THE POSIBA PLATFORM OR THIS AGREEMENT WILL BE THE GREATER OF (A) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO POSIBA TO ACCESS AND USE THE POSIBA PLATFORM OR (B) $100.
Applicable law may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have certain additional rights.
Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold harmless Posiba, Inc. and the Affiliated Entities from and against all claims, losses, costs and expenses (including attorneys' fees) arising out of or related to (a) your use of, or activities in connection with, the Company Site; (b) any activity related to your account or use of your log-in information or password (whether by you or by a third party with or without your consent); (c) your Submissions, including any claim by any third party that your Submissions infringe, misappropriate or otherwise violate any rights of such third party, including any intellectual property rights, rights of privacy or publicity, or contractual rights, or are libelous, defamatory or obscene; or (d) your breach or violation (or claim that, if true, would be a breach or violation) of this Agreement, of any law or regulation or any third party rights.
We, in our sole discretion, may terminate your access to and use of all or any portion of the Company Site, at any time and for any reason, including without limitation, if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement.
Upon any termination, your right to access and use the Company Site (including your license, if any, with respect to the Plug-in) will immediately cease and the other provisions of this Agreement will continue and survive. You agree that any termination of your access to or use of the Company Site may be effected without prior notice, and that we may immediately deactivate or delete your password and user name (if any), and all related information and files associated with it (including your Submissions). If you are an Organization User and have installed the Plug-in on your website, upon any termination you must uninstall the Plug-in and, as we direct, destroy or return to us all copies of the Plug-in code in your possession or control. You agree that Posiba and the Affiliated Entities will not be liable to you or any third party for any termination of your access to or use of the Company Site.
Governing Law; Arbitration
This Agreement and its interpretation are governed by the laws of the State of California, U.S.A., without regard to principles of conflicts of law, and regardless of your location. All disputes arising out of or related to this Agreement or any aspect of the relationship between you and Posiba, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, must be commenced by you within one (1) year after the cause of action accrues otherwise such cause of action is permanently barred and unless within the jurisdiction of the small claims court, will be resolved through final and binding arbitration before a single neutral arbitrator instead of in a court by a judge or jury and you agree that Posiba and you are each waiving the right to trial by a jury. You agree that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules. The Consumer Arbitration Rules are available at: http://www.adr.org/consumer. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination will be made by the American Arbitration Association or by the arbitrator. The arbitrator's decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
If you have any questions regarding the Company Site, please direct such questions to [email protected], Attn: Terms Administrator, 600 West Broadway, Suite 700, San Diego, CA 92101. Please note that e-mail communications will not necessarily be secure; accordingly you should not include any confidential or sensitive information in your e-mail correspondence with us.
Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the websites GetNetWise (http://getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). Please note that we do not endorse any of the products or services listed at such sites.
Notice for California Residents
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question regarding the Company Site, please send an e-mail to [email protected]. If you have a complaint regarding the Company Site, please send an e-mail to [email protected]. You may also contact us by writing to Posiba, Inc., Attn: Terms Administrator, 600 West Broadway, Suite 700, San Diego, CA 92101. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Claims of Copyright Infringement
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Company Site infringe your copyright, you (or your agent) may send us a notice requesting that we remove the material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices should be sent to [email protected] or Terms Administrator, Posiba, Inc., 600 West Broadway, Suite 700, San Diego, CA 92101. We suggest that you consult your legal advisor before filing a notice or counter-notice.
You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a "terrorist supporting" country; (b) on any of the U.S. government lists of restricted end users.