These Terms of Service (“Terms of Service”) are entered into between Polyture Inc. and its affiliates (together, “Polyture”) and any entity or person who agrees to them as set forth below (“You”). The Terms of Service explain the terms by which you may access and use Polyture’s website, the Polyture SaaS product, and any other Polyture services that incorporate these Terms of Service by reference (together, the “Service”).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS OF SERVICE CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT USE ANY SERVICE.
The Service and all of the content, except for your Data (as defined below), that is contained therein or transferred thereby, including but not limited to text, content, photographs, video, audio and graphics, goods, designs, information, applications, software, articles, directories, guides, photographs as well as the trademarks, service marks, trade names, trade dress, copyrights, logos, domain names, subdomains, code, patents and/or any other form of intellectual property (together, the “Polyture Content”), is the exclusive property of Polyture and its licensors. Except as explicitly provided herein, nothing in these Terms of Service shall be deemed to create a right or license in or under any patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction (together, the “Intellectual Property Rights”), and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Polyture Content. Use of the Polyture Content for any purpose not expressly permitted by these Terms of Service is strictly prohibited.
Subject to the terms and conditions of these Terms of Service, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable right to access and use the Service as permitted by the features of the Service. Polyture reserves all rights not expressly granted herein in the Service and the Polyture Content (as defined above). Polyture may terminate this grant of rights at any time for any reason or no reason.
Polyture means the object code of Polyture’s proprietary computer programs or modules included in the Service, as may be updated from time to time. For the applicable fee, Polyture grants you a non-exclusive, limited, non-transferable, freely revocable right to access and use Polyture during your subscription term, in accordance with these Terms of Service and the Polyture Product Description. Polyture and its licensors own and retain all title, Intellectual Property Rights, and interest in and to Polyture and all portions and any derivative works thereof.
Restrictions on Use
While using the Service, you will comply with all applicable laws, rules and regulations. Your use of the Service is conditioned on your compliance with the restrictions listed below. Any failure to comply may result in termination of your access to the Service, at Polyture’s sole discretion. In using the Service, you agree that you will not, and will not allow or authorize any third party to:
Input, distribute, upload, post, email, transmit or otherwise make available any content through the Service that:
No implied licenses are granted by Polyture under these Terms of Service. You are responsible for all use of Polyture by anyone you allow to access Polyture using your User Account (as defined below).
Registration and Account Creation
To register to use the Service, you may be required to provide Polyture with the information requested in the registration process, including your name, email address and payment information. As part of the account creation process necessary to obtain access to certain portions of the Service, you will provide Polyture with accurate, truthful, complete and updated registration information. You are responsible for all activities that occur under your account on the Service (“User Account”), and you must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your User Account. Polyture is not responsible for unauthorized access to your User Account, and will not be liable for any losses caused by any unauthorized use of your User Account. You will contact Polyture immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may never use another user’s User Account without permission.
Polyture reserves the right at any time to charge fees for access to any portion of the Service. You shall pay Polyture the fees for the Service based on the pricing schedule and billing information. All fees are payable through our payment processor. You will be responsible for all taxes resulting from the performance of the Service other than taxes on Polyture’s income. If all or any part of any payment owed to Polyture under these Terms of Service is withheld, based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between the U.S. and any such country, such payment shall be increased by the amount necessary to result in a net payment to Polyture of the amounts otherwise payable under these Terms of Service. All fees paid or payable under these Terms of Service are non-refundable. Polyture may change its fees and payment terms at its discretion.
Polyture may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Polyture in Polyture’s sole discretion. Polyture reserves the right to determine the form and means of providing notifications to you, provided that you may be able to opt out of certain means of notification. Polyture is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. By using the Service, you consent to receiving electronic communications from Polyture. These electronic communications may include notices about applicable fees and charges related to the Service and transactional or other information concerning or related to the Service. These electronic communications are part of your relationship with Polyture and you receive them as part of your use of the Service. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
You represent and warrant to Polyture that: (a) you or your licensors own all right, title, and interest in and to any and all permitted electronic data uploaded and stored by you in the Service (your “Data”); (b) you have all rights in your Data necessary to grant the rights contemplated by these Terms of Service; and (c) none of your Data violates these Terms of Service, any applicable law or regulation or any third party’s Intellectual Property Rights. Subject to the terms and conditions of these Terms of Service, you hereby grant Polyture a non-exclusive, limited right to access and use your Data to provide you with the Service and as otherwise required to exercise Polyture’s rights or perform its obligations pursuant to these Terms of Service.
You are solely responsible for the development, content, operation, maintenance, and use of your Data. Your Data does not include Prohibited Information as defined below. You will ensure that your Data, and our use of it, complies with these Terms of Service and any applicable laws and regulations. You are responsible for properly configuring and using the Service and taking your own steps to maintain appropriate security, protection and backup of your Data. You hereby consent that Polyture may use your Data, the queries you submit to the Service, and metadata about your usage of the Service to measure and improve the Service and support your usage of the Service.
To the extent that Polyture processes any Data that includes any “personal data” as such term is defined in the EU General Data Protection Regulations (“GDPR”) and/or any “personal information” as such term is defined in the California Consumer Privacy Act (“CCPA”), on your behalf as a GDPR data “processor” or “sub-processor” or as a CCPA “service provider” as a result of hosting such personal data or otherwise as a result of your use of the Service, Polyture shall do so.
You represent, warrant and covenant that you will not use the Service to collect, manage, store or process any credit or debit card numbers, associated passwords, protected health information, personally identifiable financial information, or other sensitive data (“Prohibited Information”).
Polyture cares about the integrity and security of your Data, and will use commercially reasonable efforts designed to prevent the unauthorized disclosure or destruction of your stored Data. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your Data at your own risk.
Polyture’s performance of the Service may include the use of components subject to third-party open-source software licenses (“Open-Source Software”). To the extent required by their terms, the licenses accompanying the applicable Open-Source Software will apply in lieu of the terms of these Terms of Service specifically with respect to such Open-Source Software.
“Confidential Information” means any proprietary information that is marked “confidential” or “proprietary” or any other similar term or that should reasonably be understood under the circumstances to be confidential or proprietary, including, without limitation, the Service and any non-public technical and business information. Confidential Information does not include information that (i) is or becomes generally known to the public through no fault of or breach of these Terms of Service by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure. You and Polyture will maintain the confidentiality of Confidential Information. The receiving party of any Confidential Information of the other party agrees not to use such Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under these Terms of Service. The receiving party shall protect the secrecy of and prevent disclosure and unauthorized use of the disclosing party’s Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event shall useless than reasonable care. The receiving party may disclose the Confidential Information of the disclosing party if required by judicial or administrative process, provided that the receiving party first provides to the disclosing party prompt notice of such required disclosure (to the extent allowed) to enable the disclosing party to seek a protective order. Upon termination or expiration of these Terms of Service, the receiving party will destroy (and provide written certification of such destruction) the disclosing party’s Confidential Information.
You accept Polyture’s right to change the content or technical specifications of any aspect of the Service at any time at Polyture’s sole discretion. Polyture will notify you of any discontinuation of the Service by email or via Polyture’s website.
You acknowledge and agree that Polyture has no obligation of confidentiality or nondisclosure, express or implied by considering your suggestion, feedback or idea. You hereby grant Polyture a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub-licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, create derivative works of, and otherwise commercially exploit any suggestion, feedback or ideas you submit to Polyture.
Your Authority to Agree to these Terms of Service
You represent, warrant and covenant that (i) you have read, understand and agree to these Terms of Service, (ii) are of legal age to form a binding contract with Polyture and (iii) if you are using the Service as an employee, contractor or agent of a company, then you have the authority to bind the company to the acceptance of these Terms of Service. Any use of or access to the Service by anyone under 13 is strictly prohibited and in violation of these Terms of Service. The Service is not available to any users previously removed from the Service by Polyture.
Export Control Regulations
Polyture does not represent that materials in the Service are appropriate or available for use in any particular location. Those who choose to access the Service do so on their own initiative and are responsible for compliance with all applicable laws. By using the Service, you represent, warrant and covenant that you are not (a) located in or a national or resident of any country that is subject to U.S. trade sanctions or (b) on any U.S. government denied-party list or acting on behalf of any person or entity on any such list.
No Professional Advice
If the Service provides professional information (for example, medical, legal, or financial), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
Third-Party Links and Integrations
Disclaimer and Limitation of Liability
POLYTURE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN: (i) THE SERVICE IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND BY POLYTURE; (ii) WITHOUT LIMITATION, POLYTURE DOES NOT MAKE ANY WARRANTY OF ACCURACY, COMPLETENESS, TIMELINESS, UPTIME, OR UNINTERRUPTABILITY, OF THE POLYTURE SERVICE; AND (iii) POLYTURE IS NOT RESPONSIBLE FOR RESULTS OBTAINED FROM THE USE OF THE POLYTURE SERVICE ORFOR CONCLUSIONS DRAWN FROM SUCH USE. POLYTURE HAS NO RESPONSIBILITY FOR LOSS OF DATA OR USE OF THE SERVICE FOR ANY REASON DUETO THE ACTS OR OMISSIONS OF ITS THIRD-PARTY HOSTING OR OTHER PROVIDERS.
TO THE EXTENT PERMITTED BY LAW, NEITHER POLYTURE, NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME,PROFIT OR GOODWILL, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES ARISING OUT OF YOUR ACCESS TO OR USE OF THE SERVICE, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE. THE FOREGOING SHALL APPLY EVEN IF POLYTURE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE SERVICE OR THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE SERVICE. YOU HEREBY WAIVE ANY AND ALL CLAIMS AGAINST POLYTURE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND LICENSORS ARISING OUT OF YOUR USE OF THE SERVICE. IF ANY PORTION OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF POLYTURE SHALL NOT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) OR (B) THE FEES THAT YOU HAVE ACTUALLY PAID TO POLYTURE FOR THE FOR THE RELEVANT SERVICES WITHIN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES.
TO THE EXTENT POLYTURE’S LIABILITY FOR CERTAIN TYPES OF LOSS OR DAMAGE CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, NOTHING IN THESE TERMS OF SERVICE EXCLUDES OR LIMITS POLYTURE’S LIABILITY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY POLYTURE’S NEGLIGENCE; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LOSS OR DAMAGE IN RESPECT OF WHICH SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED BY LAW.
You agree to defend, indemnify and hold harmless Polyture and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms of Service, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) Data or any other content that is submitted via your User Account, including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
Changes to the Service
We may, without prior notice, change the Service; stop providing certain features of the Service, to you or to users generally; or create usage limits for the Service. We may permanently or temporarily suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms of Service, or for no reason. Without limiting other available remedies included in these Terms of Service or otherwise, Polyture may suspend your access to the Service if you are in non-compliance with these Terms of Service.
The term of these Terms of Service commences when you accept these Terms of Service and will remain in effect until terminated in accordance with these Terms of Service. You may terminate these Terms of Service at any time by cancelling your account. Polyture may terminate these Terms of Service at any time on thirty (30) days advance notice (subject to pro rata refund of prepaid and unused fees). Polyture may also terminate your account and these Terms of Service, or suspend your account, immediately if (i) Polyture changes the way Polyture provides or discontinues the Service (subject to pro-rata refund of prepaid and unused fees); or (ii) Polyture determines that: (1) your use of the Service poses a security risk to the Service or any third-party; (2) your use of the Service may adversely impact the Service; (3) your use of the Service may subject Polyture, Polyture’s affiliates, or any third-party to liability; (4) your use of the Service may be fraudulent; (5) you are in breach of these Terms of Service; or (6) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
Effect of Termination
Upon termination of these Terms of Service (i) all your rights under these Terms of Service immediately terminate and you must cease using the Service, (ii) you must pay all unpaid fees to Polyture, and (iii) you shall return to Polyture or (at Polyture’s request) destroy, and make no further use of, any Confidential Information (and all copies thereof) belonging to Polyture (provided that you may retain documents and materials containing Confidential Information to the extent required by law or any applicable governmental or regulatory authority).
You are solely responsible for deleting or retrieving your Data from the Service prior to termination for any reason. Following expiry or termination of these Terms of Service, Polyture may thereafter:
(a) delete any of your Data at any time or retain your Data,
(b) retain your Data upon expiry or termination of these Terms of Service in order to comply with applicable law, or as Polyture may deem necessary to prosecute or defend any legal claim (in which case Polyture may retain your Data for a reasonable period of time pending resolution of such obligation or issue),
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Polyture without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
All legal notices given by you to Polyture must be submitted to Legal@Polyture.com. Polyture may give notice to you at either the e-mail or postal address you provide to Polyture, or any other way that Polyture deems appropriate. Notice will be deemed received and properly served immediately when posted on the Service or 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
Events outside a party’s control
Neither party shall be liable to the other party for any delay or non-performance of any of its obligations under these Terms of Service arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, Internet failure, act of God, act of a third party unless an approved sub-contractor of Polyture, governmental act, war, fire, flood, explosion, or civil commotion. Notwithstanding the foregoing, nothing in this clause shall excuse you from any payment obligation under these Terms of Service.
These Terms of Service will be governed and interpreted in accordance with the laws of the United States and the State of California, without giving effect to conflicts-of-law principles.
Waiver of Jury Trial and Arbitration
YOU AGREE THAT BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND POLYTURE ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Any and all disputes between you and Polyture arising under or related in any way to these Terms of Service must be resolved through binding arbitration. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association, and any hearings must take place in San Francisco, California. In the event these Terms of Service to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in San Francisco, California.
California Residents. The provider of the Service is Polyture, Inc., 2900 Saturn Street, Suite B, Brea, California 92821. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
Other than as expressly stated in these Terms of Service, a person who is not a party to these Terms of Service may not enforce any of its terms.
Miscellaneous (Severability, Entire Agreement, and Amendment)
If any of the terms and conditions hereunder is found invalid or unenforceable, such term or condition will be enforced to the maximum extent permissible, and all other terms and conditions will remain in full force and effect. The failure of Polyture to exercise or enforce any right or terms and conditions hereunder shall not constitute a waiver thereof. Those terms and conditions that by their nature are intended to survive termination of these Terms of Service shall so survive.
These Terms of Service and any other terms and conditions of service on the Site, and its successor, constitute the entire agreement between you and Polyture, and supersede all prior or contemporaneous written or oral agreements between the parties with respect to the subject matter hereof.
Polyture may, in its sole discretion, modify or update these Terms of Service from time to time, and so you should review this page periodically. When we change the Terms of Service in a material manner, we will update the “Version Date” at the top of this page and notify you that material changes have been made to the Terms of Service. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service. Except as otherwise provided in this paragraph, these Terms of Service may not be amended, nor any obligation waived, without Polyture’s express written authorization.
You agree to report any violation of these Terms of Service by others that you become aware of by contacting us at: legal@Polyture.com