2. Use of Services
Customer acknowledges and agrees that it will use the Services only to access, employ, utilize, or display the Software (as defined below) solely for Customer’s online related gaming services (the “Services“). For avoidance of any doubt, the term Services as used herein shall not include, without limitation, the right to:
- send spam or otherwise duplicative or unsolicited email messages violation of applicable laws;
- send or store infringing, obscene, threatening, harassing, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights;
- send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
- use the Services in any other manner which violates any Policy or any applicable law;
- attempt to decipher, decompile, disassemble or reverse engineer any of the Software used to provide the Services; or
- impersonate or misrepresent your affiliation with any person or entity.
Customer agrees to report immediately to Pokeit, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this Section 2 or in any of the Policies. In the event of any suspected violation of any term, condition or restriction set forth in this Section 2 or in any Policy, or in the event Pokeit otherwise reasonably objects to any inappropriate or improper content uploaded by Customer in connection with its use of the Service, we retain the right to investigate and prosecute any violations of this Section 2, and Pokeit may immediately disable Customer’s access to the Services and suspend its provision thereof.
3. Proprietary Rights
This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Services developed, owned or controlled by Pokeit (as applicable) (the “Software“), and the Services, are and shall remain the sole and exclusive property of Pokeit. Customer will not take any actions inconsistent with Pokeit’s ownership of each of Pokeit’s rights in and to the Software. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Services. Customer agrees that Customer will not directly or indirectly:
- assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement;
- modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products;
- upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site;
- use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or
- possess or use the Software in any format other than machine-readable format.
4. Target Data
In connection with the provision of the Services, we will collect, consolidate and analyze personal information and data about Services that interact electronically with Customer. Customer will have the ability to select which files, folders and Hands you want to sync with Pokeit’s servers (all such data as “Target Data“); provided, however, Pokeit shall have no obligation to sync any desired or selected Hands, files or folders, which exceed Customer’s then current account level. Pokeit will only access text-based Target Data. All other Target Data will be ignored. Pokeit will not own any Target Data; provided, however, that Customer hereby grants to Pokeit a non-exclusive, perpetual, worldwide license to use:
- Target Data in connection with its performance of the Services; and
- non-personally identifiable Target Data in aggregate for the purposes of creating benchmarking, statistical, surveys and reports.
Pokeit will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store any Target Data. Subject to the license set forth herein, Target Data will be considered Customer’s Confidential Information (as defined below). Upon termination of this Agreement, Pokeit shall have the right, but not the obligation, to (i) delete all Customer’s Target Data or (ii) return such Target Data upon the written request of Customer to email@example.com.
5. Purchase and Payment
Pricing for the Services is based upon the account type and level Customer chooses to purchase as indicated on the landing page through which Customer subscribes to use the Service (each a “Sales Order“). The Sales Order records Customer’s account type and level, term, account fee, payment method and other account information. As consideration for the Services, Customer agrees to pay the monthly subscription fees set forth in the Sales Order (the “Fees“). Paid Fees are non-refundable. Payments for Fees and reimbursements, if any, will be billed in advance on a monthly basis and will be due prior to Customer’s access to the Services. From time to time, and at any time, Customer may upgrade to a higher account level. For such upgrades, Customer will be billed for the upgraded account level, as applicable, and pro-rated Fees for the remaining duration Customer has access to the upgraded account level, in Customer’s next billing cycle. Further, Customer may, from time to time, and at any time, downgrade from an account level to a lower account level. For such downgrades, Customer will be credited for the duration Customer has access to the downgraded account level; provided. In the event Customer fails to make timely payments when due, Customer will not be permitted to use the Services.
6. Account Security
In connection with your access to the Services, Customer will create unique user-ids and passwords (the “Passwords“). You are solely responsible for safeguarding the password that you use to access the Site, Content, Files and Services. You agree not to disclose your password to any third party. You agree to take sole responsibility for any activities or actions under your password, whether or not you have authorized such activities or actions. You will immediately notify Pokeit of any unauthorized use of your password. You acknowledge that if you wish to protect your Target Data to Pokeit, it is your responsibility to use a secure encrypted connection to communicate with the Services.
7. Term and Termination
The term of this Agreement commences on the date Pokeit receives payment from Customer in connection with its Sales Order and shall be on a month-to-month basis or as otherwise set forth in Customer’s Sales Order. Upon with the expiration of each month, this Agreement shall automatically renew for the forthcoming month (each such monthly term, the “Term“). At any time during the Term, you have the right to terminate this Agreement and voluntarily stop your use of the Services. Pokeit also reserves the right to revoke your access to and use of the Pokeit website and Services at any time, with or without cause, and with or without notice. Pokeit also reserves the right to cease providing or to change the Pokeit website and Services at any time and without notice. Without limiting the generality of the foregoing, and without further notice, Pokeit may choose to delete and/or reduce:
- any or all of Target Data if your Account is inactive for 30 days; and
- previous versions and/or prior backups of Customer’s Target Data.
Subject to this Agreement, Pokeit grants you a non-exclusive, non-transferable license when you set up a Pokeit account, to:
- download and install the Software on computers, not to exceed five (5) computers or machines, within your possession and control, subject to limitations for Accounts as required by Pokeit; and
- use the Software to access and use the Service for your own use.
Except for the foregoing license grant, this Agreement do not grant you any rights to patents, copyrights, trade secrets, trademarks, source code, or any other right, title or interest in the Software or Service, ownership of which is retained solely by Pokeit, as applicable. Software updates are governed by this Agreement. The Software is licensed, not sold, to you for use only under this Agreement, and Pokeit reserves all rights not expressly granted to you. Elements of the Software may not be used separate from the Software as a whole. Except as expressly authorized in this Agreement or allowed by applicable law, you may not use, copy, modify, reverse engineer, disassemble, decompile, modify, or transfer the Software, or otherwise attempt to derive the source code of the Software, or authorize any third party to do any of the foregoing.
9. Confidential Information
Each Receiving Party (as defined below), will hold in strict confidence, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information of the Disclosing Party (as defined below). For purposes hereof, “Confidential Information” means any information disclosed by one party (the “Disclosing Party“) to the other party (the “Receiving Party“) that relates to such Disclosing Party that reasonably should be known by the Receiving Party to be confidential or proprietary to the Disclosing Party under the circumstances of disclosure or in light of the nature of the information disclosed. Confidential Information will not include information that:
- was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party;
- was in the Receiving Party’s possession prior to receipt of the same hereunder, as evidenced by the Receiving Party’s prior written records;
- was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law; or
- can be proven by competent written evidence to have been independently developed by the Receiving Party.
Nothing set forth herein shall be construed to prohibit Pokeit from disclosing Customers Confidential Information to any third party that has a need to know such information in connection with the Services or with the enforcement of its rights hereunder. Receiving Party agrees that it will disclose Confidential Information only to those of its own agents who have a need to know in connection with the Services and who are bound to such Receiving Party by written confidentiality obligations with terms no less restrictive than the terms set forth in this Agreement. Receiving Party shall be liable for a breach by its agents of any term or condition set forth herein.
From time to time, Pokeit may be required to disclose Customer’s Confidential Information by order or other requirement of a court (e.g. subpoena), administrative agency, or other governmental body or applicable law, as determined by Pokeit or its legal counsel. In such event, Customer hereby permits Pokeit to disclose such information to the extent necessary to comply with such order or legal requirement, which disclosure shall not be construed as a breach of this Section 9.
10. Representations and Warranties
You represent and warrant to Pokeit that:
- If an individual, Customer is at least eighteen (18) years old;
- If Customer is an entity, it is an entity duly organized and validly existing in good standing under the laws of the state in which it was organized;
- Customer has full power and authority to enter into this Agreement, which constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; and
- its use of the Target Data and the Services, is and will at all times be: in accordance with the terms and conditions set forth in this Agreement and all applicable laws, rules and regulations; and
- without infringement or misappropriation of any intellectual property right or other right of a third party.
11. Disclaimer of Warranty
THE SOFTWARE AND THE SERVICE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, POKEIT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. POKEIT DOES NOT WARRANT THAT:
- THE USE OR QUALITY OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, TIMELY, SECURE OR MEET YOUR REQUIREMENTS OR EXPECTATIONS;
- THE RESULTS OBTAINED FROM USE OF THE SOFTWARE OR SERVICE WILL BE ACCURATE OR RELIABLE; OR
- ANY ERRORS IN THE SOFTWARE OR THE SERVICE WILL BE CORRECTED.
THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND SERVICE REMAINS WITH YOU.
YOU ACKNOWLEDGE POKEIT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ACCORDINGLY, POKEIT SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
POKEIT DOES NOT STORE ANY DATA. CUSTOMER IS SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, SECURITY, MAINTENANCE AND STORAGE OF ALL DATA IN ACCORDANCE WITH APPLICABLE LAW.
12. Limitation of Liability.
IN NO EVENT SHALL POKEIT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (AND WITH RESPECT POKEIT SUPPLIERS, FOR ANY DIRECT DAMAGES), INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION OR DATA, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF THIS AGREEMENT OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE SERVICE EVEN IF POKEIT OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. No claim may be asserted by Customer against Pokeit more than twelve (12) months after the date of the cause of action underlying such claim. In the event of any failure, or Pokeit’s non-provision, of the Services, Customer’s sole and exclusive remedy shall be for Pokeit to use commercially reasonable efforts to repair or provide the Services. Customer’s sole remedy for dissatisfaction with the Services is limited solely to a termination of the Services provided Pokeit.
You agree to indemnify, defend and hold Pokeit and its officers, directors, employees, agents, licensors, and suppliers harmless from and against all claims, liabilities, losses, expenses, damages, and costs, including but not limited to reasonable attorneys’ fees, resulting from:
- any violation or breach of this Agreement by Customer,
- any activity related to access or use of your account (including but not limited to negligent or wrongful conduct) by you or any other person accessing or using your account and/or Files, or
- Pokeit’s authorized use of data, Files or other content provided by you or obtained by Pokeit as authorized by you under these Terms.
In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
15. Controlling Law and Jurisdiction
This Agreement and any action related thereto will be governed by the laws of the State of North Carolina without regard to its conflict of law provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the state and federal courts located in Wake County, North Carolina, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
The failure of Pokeit to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.
Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of Pokeit. Any such transfer, assignment, sublicense or delegation without consent will be null and void and shall constitute a material breach of this Agreement.
The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
19. Entire Agreement
This Agreement, the Policies and the Statement of Work(s), if any, executed by the parties constitute the entire agreement and understanding between Pokeit and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between Pokeit and Customer.
20. Consent to Use of Electronic Signatures and Records
As a convenience and courtesy to you, Pokeit provides access to its Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking “I Agree” or “I Accept” anywhere on Pokeit.co or by otherwise agreeing to the terms and conditions set forth in any agreement posted on the Pokeit.co:
- you agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement;
- you have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, the Policies and any amendments hereto or thereto;
- you agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter;
- you are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments hereto; and
- you agree to receive electronically information about the Services and other electronic records into which you thereby enter including, without limitation, this Agreement.
- If you wish to withdraw this consent, please contact us at firstname.lastname@example.org, in which case Pokeit shall terminate your right to use of the Services.