Pogoseat User Agreement
Welcome to Pogoseat, your portal to the best available seat in the house! This User Agreement (the “Agreement”) sets forth the terms for use of the services offered through Pogoseat.com (the “Services”). This Agreement forms a binding contract between you and Pogoseat and applies to your entire relationship with Pogoseat and the Services. By using Pogoseat.com and/or Pogoseat.co.uk (the “Website”), you agree to be bound by the Agreement and comply with your obligations under the Agreement. If you do not agree, please discontinue use the Website immediately.
This Agreement provides that all disputes between us and you will be resolved either by binding arbitration by a neutral arbitrator, or if available, in small claims court, in all cases without any right to trial by jury or as part of a class action proceeding. Please review the Arbitration Agreement below for further details regarding your agreement to arbitrate any dispute with us.
ACCEPTABLE USES
You may use this Website for the Services of upgrading your seats while at a qualifying event and participating in our various forums and blogs only. Pogoseat is also in the business of providing an interactive ticket buying Services through the use of SMS text messaging. Standard text messaging rates apply. The Services provide an opportunity to purchase event tickets, products and/or merchandise, services ("Offers") from third-party merchants, venues or businesses ("Providers"). You may not harm the Website in any way or otherwise use the Website in any improper manner, including, but not limited to hacking into the Website’s systems, spoofing or faking email headers or slowing or stopping the functionality of the Website. This Website is not directed to children under the age of 18. If you are under the age of 18, you may use the Website only with involvement of a parent or legal guardian (over the age of 18). Pogoseat reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
LICENSE TO USE WEBSITE
Subject to the terms and conditions of this Agreement, we hereby grant you a limited, revocable, non-transferable and non-exclusive license to access and use the Website by displaying it on your internet browser only for the purpose ofupgrading your seats while at a qualifying event and participating in our various forums and blogs and not for any commercial use or use on behalf of any third party, except as explicitly permitted by us in advance. Any breach of this Agreement shall result in the immediate revocation of the license granted in this paragraph without notice to you. While using the Website, you agree to comply with all applicable laws, rules and regulations.
Except as permitted in the paragraph above, you may not reproduce, distribute, display, sell, lease, transmit, create derivative works from, translate, modify, reverse-engineer, disassemble, decompile or otherwise exploit this Website or any portion of it unless expressly permitted by us in writing. You may not make any commercial use of any of the information provided on the Website or make any use of the Website for the benefit of another business unless explicitly permitted by us in advance.
You shall not upload to, distribute, or otherwise publish through this Website any content, information, or other material that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses, defects, date bombs or other harmful code or properties.
You shall not:
REGISTRATION
You may browse the Website and view content without registering, but as a condition to using certain aspects of the Website, you may be required to register with Pogoseat ("Registered User") and create a password. You may also opt-in to receive email communication and sms communication prior to an event going on sale, however, you will proactively opt-in to receive notifications at your own will. All registration information shall be accurate and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Pogoseat suspects, for any reason, that such information is untrue, inaccurate, not current or incomplete, Pogoseat, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Website You shall not (i) select or use as a Registered User a name of another person with the intent to impersonate that person; (ii) use as a Registered User a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a Registered User a name that is otherwise offensive, vulgar or obscene. Pogoseat reserves the right to refuse registration, cancel a Registered User or deny access to the Website in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your Pogoseat password. We are not liable for any harm caused or related to the theft or misappropriation of your user name or password, disclosure of your user name or password, or your authorization of anyone else to use your user name or password. You shall never use another user's account without such other user's express permission. Registered Users may not have more than one active account. Additionally, Registered Users are prohibited from selling, trading, or otherwise transferring accounts to another party. If you do not meet these qualifications, you may not use Pogoseat.com. You will immediately notify Pogoseat in writing of any unauthorized use of your account, or other account related security breach of which you are aware. If you have reason to believe that your account with us is no longer secure, you must promptly change your password by visiting www.Pogoseat.com and immediately notify us of the problem by emailing us at support@pogoseat.com.
OWNERSHIP
The information and materials provided on or through the Website, including any data, text, designs, graphics, images, photographs, illustrations, audio and video clips, logos, icons and links (collectively, the "Materials") are owned exclusively by Pogoseat, and are intended to educate and inform you about the events, venues and other products and services offered or described on the Website. The Website, including all Website software, databases, proprietary information and Materials (and any intellectual property and other rights relating thereto) including, without limitation, the selection, sequence and "look and feel" and arrangement of items, is owned and operated by Pogoseat and will remain the property of Pogoseat. The Website is protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable. You further acknowledge that you do not acquire any ownership rights by using the Website or the Materials.
The trademarks, logos, and service marks displayed on the Website (collectively the "Trademarks") are the registered and unregistered trademarks of Pogoseat, Pogoseat's licensors and suppliers, and others. The Trademarks owned by Pogoseat, whether registered or unregistered, may not be used in connection with any product or service that is not offered by Pogoseat, in any manner that is likely to cause confusion with customers, or in any manner that disparages Pogoseat. Nothing contained on the Website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of Pogoseat, Pogoseat's licensors or suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and Pogoseat will aggressively enforce its intellectual property rights in such Trademarks.
PURCHASES
Pogoseat provides a service that allows a sports fan, concert attendee or the like to upgrade their seats, purchase a unique vip upgrade for an event, both before and during the event, and purchase a ticket to a live event via SMS. As such, you will be charged a sales fee (a "Transaction"). Price and availability of any seat/vip upgrade are subject to change without notice until such time as a Transaction is completed. Refunds and exchanges will be subject to Pogoseat's refund and exchange policies then in effect.
Pogoseat also provides a service that allows fans who attend live-events the ability to buy a ticket through the use of SMS text messaging. Pogoseat markets Offers on behalf of Providers. Pogoseat is not responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by a customer, caused in whole or in part by the Underlying Offer or for any unclaimed property liability arising from unredeemed or partially redeemed Promotional Voucher. By responding to a Offer, you agree to purchase the Offer based on the terms and conditions associated with the Offer and the terms and conditions stated herein. If the terms of an Offer are inconsistent with these Terms, the Offer's specific terms supersede any inconsistent terms in these Terms, except to the extent such terms are prohibited by applicable law.
As a Registered User you agree to receive email communications and text messaging from an automated telephone dialing system for all of your transactions and communication with Pogoseat. In order to respond to an Offer or to purchase any Product, you must be a Registered User. You agree that all purchase confirmations, postings, notices, disclosures, or other communications that Pogoseat provide to you electronically or through a text message satisfy any legal requirements that such communications be in writing.
You will be asked to supply certain information applicable to your Transaction, including, without limitation, information about your current seat location, credit card number (or other payment information), first and last name, email address, mobile phone number and other personal information. You understand that any such information will be treated by Pogoseat in the manner described in our Privacy Policy. You grant Pogoseat the right to provide any such information to third parties for purposes of facilitating the completion of a Transaction initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction. You agree that all information that you provide in connection with your Transaction will be accurate, current and complete. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases. You acknowledge that complying with laws is your responsibility, and YOU AGREE NOT TO HOLD US LIABLE FOR YOUR FAILURE TO COMPLY WITH ANY LAW OR OUR FAILURE TO NOTIFY YOU OF, OR PROPERLY APPLY, ANY LAW. WE WILL COMPLY WITH LAW ENFORCEMENT AND MAY PROVIDE THEM WITH ALL INFORMATION YOU SUBMIT TO US TO ASSIST IN ANY INVESTIGATION OR PROSECUTION THEY MAY CONDUCT.
INFORMATION PROVIDED BY POGOSEAT
Although Pogoseat strives to provide Materials that are both useful and accurate, the nature of the data and other information contained on the Website is subject to frequent change. In addition, the facts and circumstances of every situation differ. Accordingly, although Pogoseat endeavors to use reasonable care in assembling the Materials, the Materials may not be up-to-date, accurate or complete.
In addition, portions of the Materials have been contributed to the Website by various artists, sports teams and other persons. The inclusion of such information does not indicate any approval or endorsement thereof, and Pogoseat expressly disclaims any liability with respect to the foregoing.
FORUMS AND USER CONTENT
We and our designees may host message boards, blog feeds and other forums found on the Website (collectively, the "Forums"), and you may have the ability to provide or upload to Pogoseat creative suggestions, ideas, notes, concepts, information, content, audio recordings, videos, photographs, graphics, artwork or other copyrighted works and materials (collectively, "User Content"). No areas of this Website may be used by our visitors for any commercial purposes such as to conduct sales of tickets, merchandise or services of any kind.
By sending or transmitting User Content to us, or by posting such User Content to any area of the Website, you grant us and our designees a perpetual, worldwide, non-exclusive, unlimited, transferable, sublicenseable (through multiple tiers), assignable, royalty-free, irrevocable right and license to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, display, store, digitally perform, publish (on the Website, on any other website(s), in print, radio, television or elsewhere), make, have made, sell, offer for sale, import and commercialize User Content, or any portion thereof, in any manner and context (including but not limited to usage in commercial, advertising or promotional materials), now known or in the future discovered, in Pogoseat's sole discretion, in any way, in any and all media now known or hereinafter discovered, without limitation and without any compensation or acknowledgment to you or any third party. None of the User Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any User Content. If Pogoseat does decide, in its sole discretion, to attribute User Content to you, you hereby grant Pogoseat the right to use your member name with respect to such attribution, and waive any claims (including, without limitation, any privacy or publicity rights claims) with respect to such use of your member name. For clarity, the foregoing license grant to Pogoseat does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to the material in your User Content, unless otherwise agreed in writing.
You further acknowledge that Pogoseat (a) is under no obligation to post, display or otherwise use any User Content, and (b) has no obligation whatsoever to pay you any royalty or other amounts on any revenues or other consideration that Pogoseat receives directly or indirectly from the use or display of your User Content or otherwise from the exercise of Pogoseat's rights granted under these Terms. You hereby agree not to instigate, support, maintain, or authorize any action, claim, or lawsuit against Pogoseat or its owners/operators, affiliates, and/or licensors, or any other person, on the grounds that any use of User Content, or any derivative works thereof, infringe any of your rights as creator of the User Content, including, without limitation, trademark rights, copyrights, publicity rights, privacy rights, and moral rights or "droit moral."
Information on our Forums may be provided by our staff and other contributors, some of whom use anonymous screen names and are people not otherwise connected with Pogoseat. You acknowledge that a large volume of information is available in our Forums and that people participating in such Forums occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, offensive, indecent, objectionable, obscene, threatening, harassing or encourages any such conduct, or that otherwise violate any of the limited license to use the Website, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Pogoseat with respect thereto. We neither endorse nor are responsible for such messages or statements, or for any opinion, advice, information or other utterance made or displayed on the Website or Forums by third parties, whether such third parties are visitors to the Website, members of the Pogoseat community or others. The opinions expressed in the Forums reflect solely the opinion(s) of the participants and may not reflect the opinion(s) of Pogoseat. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages or for any results obtained from the use of such information. Under no circumstances will we or our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on such information obtained through the Website. If notified by a user of User Content that allegedly does not conform to these Terms, Pogoseat may in its sole discretion investigate the allegation and determine in good faith and in its sole discretion whether to remove the User Content.
By submitting User Content you certify that either (i) you are eighteen (18) years old or are an emancipated minor and have the right to submit the User Content and grant the licenses provided hereunder, or (ii) you are at lest thirteen (13) years old and have obtained your parent's or legal guardian's express consent to submit the User Content and to grant the licenses provided hereunder.
You shall be solely responsible for your own User Content and the consequences of posting or publishing them. In connection with User Content, you affirm, represent and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to the User Content and to grant the rights and licenses to Pogoseat under all patent, trademark, trade secret, copyright or other proprietary or intellectual property rights in and to any and all User Content in the manner contemplated by the Website and these Terms; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of such person in the manner contemplated by the Website and these Terms or, if such persons are minors, the written consent, release, and/or permission of such minor's parent or legal guardian.
You acknowledge and agree that we have the right (but not the obligation) to monitor the Website and the Forums and the User Content that you or third parties transmit or post; to alter or remove any such User Content (including, without limitation, any posting to a Forum); to disclose such User Content and the circumstances surrounding their transmission to any third party in order to operate the Website properly; to protect ourselves, our sponsors and our members and visitors; and to comply with legal obligations or governmental requests.
SOCIAL MEDIA
This Agreement applies also to users of social media websites managed by Pogoseat and hosted by third-party providers (e.g., Facebook.com, Twitter.com, LinkedIn.com, etc.). Pogoseat reserves the right to remove comments or content on its social media websites and may block further posting on its social media websites by any individual who violates this Agreement. Pogoseat disclaims all liability in any way connected to the use of or access to its social media websites.
LINKS
This Website may contain links to other sites on the internet that are owned and operated by third parties. You acknowledge that we are not responsible for the operation of or content located on or through any such site.
CLAIMS OF COPYRIGHT INFRINGEMENT
The content and software on this Site is the property of Pogoseat and/or its suppliers and is protected by U.S. and international copyright laws. We will terminate the privileges of any user who uses this Site to unlawfully transmit copyrighted material without a license express consent, valid defence or fair use exemption to do so. In particular, users who submit Content to this Site, whether articles, images, stories, software or other copyrightable material must ensure that the Content they upload does not infringe the copyrights or other rights of third parties (such as privacy or public rights). After proper notification by the copyright holder or its agent to us, and confirmation through court order or admission by the user that they have used this Site as an instrument of unlawful infringement, we will terminate the infringing users' rights to use and/or access this Site. We may, also in our sole discretion, decide to terminate a user's rights to use or access the Site prior to that time if we believe that the alleged infringement has occurred.
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 hosted by Pogoseat infringe your copyright (for example, materials posted by Pogoseat on one of our Forums), you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Website are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Pogoseat to locate the material on the Website; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Additionally, if you believe in good faith that a notice of copyright infringement has been wrongly filed by Pogoseat against you, the DMCA permits you to send Pogoseat a counter-notice. If you fail to comply with all of the applicable requirements of the DMCA, your notice and/or counter-notice may not be valid.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Website should be sent to Copyright Officer, Pogoseat, Inc. [49 Stevenson St, 4th Fl, San Francisco, CA 94105], support@pogoseat.com. Be aware that there can be penalties for false claims under the DMCA. We suggest that you consult your legal advisor before filing a notice or counter-notice.
ACCESS FROM OUTSIDE THE UNITED STATES
The Website is directed to individuals residing in both the United States, Canada and Europe for use at venues located both in the United States, Canada and across the European Economic Area respectively. We make no representation that Materials available on or through the Website are appropriate or available for use in other locations. Those who choose to access the Website from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
PROMOTIONS
In addition to this Agreement, any sweepstakes, contests, games or similar promotions (collectively, "Promotions") made available through the Website may be governed by specific rules that are separate from this Agreement. By participating in any such Promotion, you will become subject to those rules, which may vary from the terms and conditions set forth herein. Pogoseat urges you to review any specific rules applicable to a particular Promotion, which will be linked from such Promotion, and to review our Privacy Policy which, in addition to this Agreement, governs any information you submit in connection with such activities. To the extent that the terms and conditions of such rules conflict with this Agreement, the terms and conditions of such rules shall control with respect to the particular Promotion.
MOBILE MESSAGING
Pogoseat offers various browsing and mobile messaging services including, without limitation, alerts, contests, sweepstakes and offers for Services. You may choose to receive Pogoseat mobile alerts by signing up or entering a mobile promotion. Mobile messaging is provided by Clickatell and your participation is also subject to the Clickatell terms of service. You may view these terms of service at the Clickatell website located at http://www.clickatell.com.
Pogoseat also provides a service that allows fans who attend live-events the ability to buy a ticket through the use of SMS text messaging. When you opt-in to this service, Pogoseat will send you an SMS message via an automated telephone dialing system to confirm your signup. Pogoseat may also send you periodic ticket offers and telemarketing offers via an automated telephone dialing system from time to time. Consent to future text messages is not a condition of purchase.
Message and data rates may apply, according to your individual rate plan provided by your wireless carrier. Please consult your mobile service carrier's pricing plan to determine the charges for browsing data and sending and receiving text messages. Under no circumstances will Pogoseat be responsible for any text messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number as a result of a promotion. If your carrier does not permit text alerts, you may not receive the Pogoseat text alerts. Pre-paid phones or calling plans may not be supported. You may receive a bounceback message for every message you send to Pogoseat. Service may not be compatible with all handsets.
You may opt out of any alerts by replying with the text "STOP" to such alert or sending the message "STOP" in the text message you received . If you send the text "STOP", you will no longer receive any text messages including, without limitation, advance notices of ticket sales. After you send the SMS message "STOP" to us, we will send you an SMS message to confirm you have been unsubscribed. After this, you will no longer receive SMS messages from us.We will make every attempt to remove your mobile telephone number from the Pogoseat text database as soon as possible, but please allow up to ten (10) days. For additional help, email support@poogseat.com. If you are unable to send a text message, you agree that you will send an email to support@pogoseat.com with the subject line of "STOP" along with your mobile number in the subject heading of the email.
If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again. If at any time you forget which keywords are supported, just reply "HELP" to the text message you received. After you send the SMS message "HELP", we will respond with instructions on how to use our service as well as how to unsubscribe. We are able to send text messages to all major and minor US mobile phone carriers. As always, message and data rates may apply for any messages sent to you from us and to us from you. Message frequency depends on the user's interaction. If you have any questions about your text plan or data plan, please contact your wireless cellular provider.
Pogoseat disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or material displayed in Pogoseat mobile messaging. Pogoseat disclaims any responsibility for the deletion, failure to store, misdelivery or untimely delivery of any information or material by Pogoseat or by you. Pogoseat disclaims any responsibility for any harm resulting from information or material through Pogoseat mobile messaging.
TERMINATION
In addition to any other legal or equitable remedies, we may, without prior notice to you, immediately terminate the Agreement or revoke any or all of your rights granted under this Agreement. Upon any termination of this Agreement, you shall immediately cease all access to and use of the Website and we shall, in addition to any other legal or equitable remedies, immediately revoke all password(s) and account identification issued to you and deny your access to and use of the Website in whole or in part. Any termination of this Agreement shall not affect the respective rights and obligations (including without limitation, payment obligations) of the parties arising before the date of termination.
REMEDIES
You agree that our remedy at law for any actual or threatened breach of this Agreement would be inadequate and that we shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that we may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including, without limitation, attorneys' fees.
No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys' fees and expenses.
No instance of waiver by us of our rights or remedies under these terms and conditions shall imply any obligation to grant any similar, future or other waiver.
DISCLAIMERS
THE WEBSITE, THE MATERIALS ON THE WEBSITE, AND ANY PRODUCT OR SERVICE OBTAINED THROUGH THE WEBSITE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, POGOSEAT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE, THE MATERIALS, AND ANY PRODUCT OR SERVICE OBTAINED THROUGH THE WEBSITE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Applicable law may not allow the exclusion of implied warranties, so the above exclusions may not apply to you.
POGOSEAT DOES NOT WARRANT THAT YOUR USE OF THE WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE, THE SERVER(S) ON WHICH THE WEBSITE IS HOSTED IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE WEBSITE, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE WEBSITE AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF POGOSEAT, WHETHER MADE ON THE WEBSITE OR OTHERWISE, SHALL CREATE ANY WARRANTY. POGOSEAT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKEDWEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND POGOSEAT WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. YOUR USE OF THE WEBSITE AND ANY MATERIALS PROVIDED THROUGH THE WEBSITE ARE ENTIRELY AT YOUR OWN RISK.
LIMITATION OF LIABILITY
NEITHER POGOSEAT NOR ANY OF OUR AFFILIATES, SHAREHOLDERS, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE OR WILL BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE WEBSITE AND/OR MATERIALS CONTAINED ON THE WEBSITE, ANY LINKED WEBSITE OR ANY PRODUCT OR SERVICE PURCHASED THROUGH THE WEBSITE. WITHOUT LIMITING THE FOREGOING, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT POGOSEAT SHALL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR (I) ANY FAILURE OF ANOTHER USER TO THE WEBSITE TO CONFORM TO THE REQUIREMENTS OF THIS AGREEMENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, WHETHER ARISING IN CONTRACT OR IN TORT, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, INCLUDING ANY CLAIM, CAUSE OF ACTION, OBLIGATION, LIABILITY, RIGHT, OR REMEDY WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF POGOSEAT, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, WORMS, TROJAN HORSES, DEFECTS, DATE BOMBS, TIME BOMBS OR OTHER ITEMS OF A DESTRUCTIVE NATURE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, (V) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY MATERIALS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY MATERIALS POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA WEBSITE, AND/OR (VI) ANY LOST, STOLEN OR DAMAGED TICKETS, OR THE FAILURE OF A VENUE TO HONOR A SEAT UPGRADE. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE WEBSITE OR MATERIALS OR ANY LINKED WEBSITE IS TO STOP USING THE WEBSITE, MATERIALS, OR LINKED WEBSITE, AS APPLICABLE. THE MAXIMUM LIABILITY OF POGOSEAT, AND YOUR SOLE AND EXCLUSIVE REMEDY, FOR ALL DAMAGES, LOSSES SUFFERED BY YOU AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO POGOSEAT DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE YOUR CLAIM FIRST AROSE. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
You acknowledge that you may have or may in the future have claims against Pogoseat which you do not know or suspect to exist in your favor when you agreed to this Agreement and which if known, might materially affect your consent to this Agreement. You expressly waive all rights you may have under Section 1542 of the California Civil Code or any similar provision under any other applicable law, which states:
A GENERAL RELEASE DOES NOT EXTEND THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
INDEMNIFICATION
You agree to indemnify, defend and hold Pogoseat, its affiliates, licensors, suppliers, advertisers and sponsors, and their respective directors, officers, employees, consultants, agents and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees) and other expenses that arise directly or indirectly out of or from (a) your breach of this Agreement, (b) any allegation that any User Content or other materials you submit to us or transmit to the Website infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (c) your activities in connection with the Website.
JURISDICTION AND GOVERNING LAW
By visiting the Website, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to principles of conflict of laws, will govern the Terms of Use, Privacy Policy and any dispute of any sort that might arise between you and us related in any way to your use of the Website. Except as provided in the Arbitration Agreement section below, by using the Website you agree to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California for the resolution of all disputes between us, and waive any objection based on such forums being inconvenient.
ARBITRATION AGREEMENT
Any dispute or claim relating in any way to products sold or Services provided through the Website, or any Provider arising out of, relating to, or connected in any way with these Terms, or relating in any way to your use of the Website (including without limitation claims relating to the breach of the Terms of Use, Privacy Policy or the unauthorized disclosure of personally identifiable information) will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. Unless you proceed with a small claims action, the Federal Arbitration Act and federal arbitration law will apply. This Arbitration Agreement is intended to be broadly interpreted, and includes, without limitation:
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms of Use as a court would.
If for any reason a claim proceeds in court rather than in arbitration WE EACH HEREBY WAIVE ANY RIGHT TO A JURY TRIAL. We also both agree that either of us may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Further, unless we both agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative, consolidated or class proceeding. If the requirements of this paragraph are found to be unenforceable, then the entirety of this arbitration provision shall be null and void except for the waiver of any right to a jury trial described in the previous paragraph.
If a dispute arises between us, we strongly encourage you to first contact us directly to seek a resolution by contacting our Customer Support [support@pogoseat.com] before resorting to arbitration or asserting a claim in small claims court. We value our relationship with our customers and will try to resolve your claims informally and expeditiously. To that end, before either of us may begin an arbitration proceeding, written notice must be sent to the other describing the claim. If to us, the notice should be sent to our registered agent [PremierCounsel LLP 49 Stevenson St, 4th Fl, San Francisco, CA 94105], and if to you, at the current address you provided in your customer account. If the claim has not been resolved within 30 days of sending the notice, either party may then commence an arbitration proceeding. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules and forms are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not to seek attorneys' fees and costs in arbitration unless the arbitrator determines your claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county or parish where you live or at another mutually agreed location.
The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of our last written settlement offer made before an arbitrator was selected (or if we did not make a settlement offer before an arbitrator was selected), then we will pay you the amount of the award or US$1,000, whichever is greater.
SEVERABILITY
If any these provisions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed several and shall not affect the validity and enforceability of any remaining provision.