Last Updated: April 7, 2020
PLEASE READ THIS AGREEMENT CAREFULLY. “I ACCEPT,” REGISTERING FOR AN ACCOUNT, DOWNLOADING THE APP, OR OTHERWISE ACCESSING OR USING THE SERVICE, OR ANY PORTION THEREOF, INCLUDING THE SITE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE ENTITY THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT OR OTHERWISE ACCESSING OR USING THE SERVICE IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY AGREE THAT: (i) THE TERMS “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY AND SUCH INDIVIDUAL; AND (ii) REPRESENT AND WARRANT THAT THE INDIVIDUAL ENTERING INTO THIS AGREEMENT HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY. YOU MAY NOT ACCESS OR USE THE SERVICE OR ACCEPT THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE.
PLEASE BE AWARE THAT SECTION 13 OF THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING ARBITRATION. UNLESS YOU OPT OUT,: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
This Agreement is subject to occasional revision, and we reserve the right to charge fees for accessing and using the Service in the future. See Section 14.1 of this Agreement for further information about changes to this Agreement. PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
1. Eligibility. You represent and warrant that: (i) you are at least eighteen (18) years old; (ii) you have not previously been suspended, removed or deactivated from the Service; and (iii) that your use of the Service is in compliance with any and all applicable laws and regulations. If the individual entering into this Agreement is doing so on behalf of, or within his or her capacity as a representative, agent, or employee of an entity, such individual and such entity agree that: (i) the terms “you” and “your” as used herein apply to such entity and such individual; and (ii) represent and warrant that the individual entering into this Agreement has the power, right, authority, and capacity to enter into this agreement on behalf of such entity. You must be at least twenty-one (21) years old to redeem Offers with alcoholic beverages on the Service.
2.1. Account Creation. In order to use most features of the Service, you must register for an account (“Account”). You promise that: (a) all required registration information you submit in connection with your registration is truthful and accurate; and (b) you will maintain the accuracy of such information. Pogo may suspend or terminate your Account in accordance with Section 12.
2.2. Account Responsibilities. You are responsible for all activities that occur under your Account. You agree to immediately notify Pogo of any unauthorized use or suspected unauthorized use, of your Account or any other breach of security. Pogo cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You may not share your Account or password with anyone. You agree that you shall not have more than one Account at any given time. Pogo reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Service if you have been previously removed by Pogo. If you provide any information that is untrue, inaccurate, not current or incomplete, or Pogo has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Pogo has the right to suspend or terminate your Account and refuse any and all current or future use of the Service (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.
2.3. Your Account. You agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Pogo.
2.4. Linking Your Payment Card.
(a) In order to receive Rewards from us for qualifying purchases of goods or services, or for referring other users to download the Pogo App, you must link at least one eligible debit or credit card (a “Payment Card”) to your Account. Please note that not all debit and credit cards are eligible to be linked to your Account. All determinations as to whether a card is eligible to be a Payment Card are at our sole discretion. For example, certain Visa, Mastercard, and American Express cards are not be eligible to be linked to your Account, including, but not limited to, the following: prepaid cards, corporate cards, purchasing cards, store cards which can only be used at their respective retailers’ stores, government-administered prepaid cards (including Electronic Benefit (EBT) cards), healthcare cards (including Health Savings Account (HSA) cards, Flexible Spending Account (FSA) cards, and insurance prepaid cards), Visa Buxx, and cards that are not processed through the Visa U.S.A payment system, the Mastercard payment system, or the American Express payment system. In order to be eligible as a Payment Card, it must be issued by a U.S. bank.
(b) Please note that we use Empyr as our service provider to help us operate our program. Your payment card may only be enrolled in one program operated by Empyr. If you have already enrolled a payment card with a separate program operated by Empyr, you will be unable to register that card in both Pogo and the other Empyr-operated program. You may enroll another payment card in Pogo or deactivate your card in the other Empyr-operated program.
(c) By registering a Payment Card in connection with transaction monitoring, you authorize us to share your payment information with the third-parties that enable us to provide the Services (“Third-Party Service Providers”) and your payment card network (e.g., Visa, Mastercard, American Express) so it knows you enrolled. You authorize the payment card network to monitor transactions on your linked Payment Card(s) to identify qualifying purchases in order to determine whether you have qualified for or earned an Offer linked to your Payment Card, and for the payment card network to share such transaction details with us to enable your card-linked Offer(s) and target Offers that may be of interest to you. You agree that Pogo and Third-Party Service Providers may view your transactions made by you with participating merchants. You authorize participating merchants to provide Pogo with historical transaction data.
(d) You may opt-out of transaction monitoring on the Payment Card(s) you have registered by removing your card(s) in the Pogo App (as indicated in the instructions below) or emailing firstname.lastname@example.org.
1. Go to the Linked Cards Page in the app menu
2. Click on delete card
3. Confirm you want to delete card
4. You must repeat this process for every card you wish to delete.
To terminate your Account and your right to use the Services at any time and for any reason and for no reason, contact email@example.com and immediately discontinue all use of the Services. Please note that if you opt-out of transaction monitoring, certain features of the Services may not be available to you or the performance of certain features of the Services may be limited or not work at all.
3. Rewards Program. We may make available to you offers on third-party products and services from time to time when you purchase qualifying goods or services with your Payment Card or perform other qualifying actions identified by us (each an "Offer"). You can redeem an Offer through the Service, and you may accumulate rewards in your Account ("Rewards"). Each Offer may be subject to Supplemental Terms and may be discontinued at any time without notice to you. Those Supplemental Terms will be set forth on the Site and/or App and may be updated, modified, suspended, or cancelled by Pogo at any time in its sole discretion. All Offers are temporary and may be come unavailable with or without notice to you. You may only have a limited time to take advance of an Offer, so please check the Site and/or App often for updates.
3.1. Transaction Eligibility. Not all transactions with your registered Visa, MasterCard and American Express card are tracked by Visa, MasterCard and American Express (each, a “Payment Card Network”). You acknowledge that Visa, MasterCard, and American Express may be unable to monitor every transaction made with your enrolled Visa, MasterCard, or American Express card, including PIN-based purchases, purchases you initiate through identification technology that substitutes for a PIN, payments made through other payment methods (such as a digital wallet or a third party payment app, where you may choose your Visa, MasterCard, or American Express card as a funding source but you do not present your card directly to the merchant), payments of existing balances, balance transfers, or transactions that are not processed or submitted through the Visa U.S.A., MasterCard, and American Express payment systems, and that these transactions are not eligible. If you register a debit card, your transaction must be processed as a ‘credit’ (i.e., signature) transaction to make sure the transaction can be monitored. Do not use a Personal Identification Number (PIN) when paying for your purchases with your enrolled card if you want the transaction to be eligible for Rewards or Offer completion.
3.2. Receiving Rewards. Subject to this Agreement, we will automatically provide Rewards to you when you purchase qualifying goods or services with your Payment Card or perform other qualifying actions identified by us. Pogo, in its sole discretion, establishes the terms and conditions for each qualifying purchase or action and determines whether you have satisfied such terms and conditions to receive Rewards. Such terms and conditions are set forth on the Site and the App and may be updated, modified, suspended, or cancelled by the Company at any time in its sole discretion. All Offers made available to you through the App are temporary and may become unavailable without notice. You may also have a limited, prescribed window of time to take advantage of an Offer. Always check the App for offers currently available to you.
Without limiting any of the other terms of this Agreement, if you return, charge back, cancel, dispute, or otherwise request a refund for a qualifying purchase for which you have already received Rewards, we will reduce the balance of Rewards in your Account by the amount of rewards you received for such transaction. If the balance of Rewards in your Account is less than the amount of Rewards you received for such transaction, we will offset the applicable amount of Rewards from Pogo you would otherwise receive for future qualifying actions.Rewards that you receive as a result of a qualifying purchase at a local merchant will generally be reflected in your Account within 1-7 Business Days after the date of purchase.
Rewards that you receive as a result of a qualifying online purchase will be reflected in your Account after the return period for the purchase has expired and generally within 60-90 Business Days after the online purchase is completed. In some cases, it may take longer for Pogo to be reflected in your Account. For purposes of this Agreement, “Business Day” means Monday through Friday, excluding federal banking holidays. If you do not automatically receive Rewards for purchasing qualifying goods or services with your Payment Card or for performing other qualifying actions as identified by us, you have thirty (30) days from the date of transaction if made in store or ninety (90) days from the date of transaction if made online to contact us, provide evidence of the purchase and request rewards earned. Any requests for rewards earned after these deadlines will not be honored and the rewards associated with the transaction will be forfeited.
Without limiting any of the other conditions of this Agreement, if we award Rewards to you in error (e.g., we later determine that you did not comply with the terms and conditions of a qualifying purchase or if you charge back a qualifying purchase), we reserve the right to remove the applicable Rewards from your Account. You are responsible for making sure the Rewards balance reflected in your Account is correct. If you believe that your Account does not accurately reflect rewards that you are eligible to receive, please contact us.
Rewards will remain in your Account until we approve redemption of rewards as described below.
3.3. Redeeming Cash Back and Other Incentives. Subject to this Agreement and our approval, you may request that we redeem rewards from your Account. Prior to redeeming rewards, (i) you must verify an email address associated with your Account, (ii) rewards may only be redeemed from your Account through the Website and the Application, (iii) the balance of rewards in your Account must be equivalent to at least $25 in order to redeem rewards, and (iv) you must have completed an Offer-qualifying transaction with a participating merchant. We will generally redeem rewards from your Account and credit your designated U.S. bank account, Venmo account, PayPal account, or other payment method permitted by us and designated by you (“Redemption Method”) within 1-5 Business Day(s) of when we receive your redemption request. Credits to your bank account will be completed within 1-5 Business Days after your request is received by us.
You are solely responsible for verifying the accuracy and completeness of any credits to your Redemption Method performed by us hereunder. You must notify us of any errors within fifteen (15) days of such information being made available to you. If you do not notify us of any such errors within such fifteen (15) days, you will forfeit the right to contest a transaction, except to the extent such forfeiture is prohibited by applicable law.
Certain limits may apply to your redemption of rewards. For example, unless otherwise permitted by us, you may only redeem rewards up to the equivalent of $500 in any day. Without limiting any of the other conditions of this Agreement, we may modify the redemption terms for rewards at any time in our sole discretion.
4. Access to the Service
4.1. Access and Use. Subject to this Agreement, Pogo grants you a non-exclusive, revocable, limited, nontransferable, non-assignable, and “as is” right to use and access the features and functionality of the Service solely for your own personal, non-commercial use, subject to any use limitations.
4.2. Application License. Subject to your compliance with the Agreement, Pogo grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal, non-commercial purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
4.3. Modification. We may modify, update, suspend, or discontinue the Service (in whole or in part) at any time with or without notice to you. You agree that Pogo is not be liable to you or to any third party for any modification, update, suspension, or discontinuation of the Service. You may need to update third-party software from time to time in order to use the Service.
4.4 Location Data. Some features of the Service enable us to tailor your experience in the Service based on your location. If you decline to provide location information, or if, in our judgment, we cannot verify your location, you will be unable to utilize some features of the Service.
5. IP Rights
5.1. Ownership. You acknowledge that we or our suppliers own all right, title, and interest, including all intellectual property rights, in and to the Service. Except for the limited access rights expressly set forth in this Agreement, you are not granted any rights with respect to the Service and there are no implied licenses granted by Pogo under this Agreement.
5.2. Trademarks. POGO and all related graphics, logos, service marks and trade names used on or in connection with the Service or in connection with the Service are the trademarks of Pogo and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners.
5.3. Feedback. We welcome any and all feedback to help us build a better service. If you provide Pogo with any feedback or suggestions regarding the Service (“Feedback”), you acknowledge that we can freely use and exploit such Feedback in any manner. Feedback you provide is not confidential or proprietary to you. So, please do not provide Pogo any information or ideas that you consider to be confidential or proprietary.
6. Third Party Services
6.1. Third-Party Materials. As a part of the Service, you may have access to materials, links, applications, advertisement, and services that are hosted or controlled by another party (“Third-Party Materials”). You agree that it is impossible for Pogo to monitor such Third Party Materials, and that you access these Third Party Materials and services at your own risk. Pogo provides access to these Third-Party Materials only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Materials. You use all Third-Party Materials at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Materials, and the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Materials.
6.2. App Stores. You acknowledge and agree that the availability of the App and the Service is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Pogo and not with the App Store. Pogo, not the App Store, is solely responsible for the Service, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Service, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the Service, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
7. Content. You acknowledge that all information, data, text, photographs, messages, tags, and other content or materials accessible through the Service (“Content”), are the sole responsibility of the party from whom such Content originated. This means that you, and not Pogo, are entirely responsible for all Content that you upload or otherwise make available through the Service (“Your Content”). By submitting Your Content, you grant Pogo a fully paid, royalty-free, worldwide, royalty-free, non-exclusive right (including any moral rights) and license to use, sublicense, distribute, reproduce, modify, adapt, publicly perform, and display, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in Your Content. Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in the Service.
7.1. Investigations. Pogo may, but is not obligated to, monitor or review the use of the Service and Content at any time. Without limiting the foregoing, Pogo shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason). If Pogo becomes aware of any possible violations by you of any provision of the Agreement, Pogo may investigate such violations, and, at its sole discretion, immediately terminate your license to use of the Service, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7.2. No Obligation to Pre-Screen Content. Pogo may, but is not obligated to pre-screen, refuse or remove any Content for any reason, including if Content violates the Agreement or is otherwise objectionable. Pogo has no responsibility or liability for the deletion or accuracy of any Content. Certain Services may enable you to specify the level at which such Service restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. Unless expressly agreed to by Pogo in writing elsewhere, Pogo has no obligation to store any of Your Content.
7.3. Representations and Warranties. You represent and warrant that you have all necessary right, title, interest, authorizations, and permissions to: (i) provide, provide access to, request Pogo access, disclose, or submit any data, content, information, or feedback, including Your Content, that you provide, provide access to, disclose, or submit to Pogo or the Service, or that you authorize or request Pogo to access on your behalf, as applicable; and (ii) grant the rights and permissions granted hereunder with respect to any data, content, information, or feedback, including Your Content.
8. User Conduct. As a condition of your use of the Service, you agree not to use the Service for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third party) take any action or make available any Content on or though the Service that:
(a) submit to our Service information that is false, inaccurate, tampered with, adjusted, or otherwise manipulated for the purpose of redeeming an Offer;
(b) link your Account to any credit card that is not owned by you;
(c) redeem, or attempt to redeem, Offers for products that have not actually been purchased and retained, or for products that have been purchased but returned to a store or online vendor, following purchase;
(d) upload receipts to our Service that have already been uploaded by you or another user, for the purpose of earning credit from us for purchasing products that you did not actually purchase;
(e) infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity;
(f) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
(g) constitute unauthorized or unsolicited advertising, junk or bulk e-mail;
(h) involve commercial activities and/or sales without Pogo’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes;
(i) impersonate any person or entity, including any employee or representative of Pogo;
(j) interfere with or attempt to interfere with the proper functioning of the Service or uses of the Service in any way not expressly permitted by the Agreement; or
(k) engage in, or attempt to engage in any potentially harmful acts that are directed against the Service, including but not limited to violating or attempting to violate any security features of the Service, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Service, introducing viruses, worms, or similar harmful code into the Service, or interfering or attempting to interfere with use of the Service by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Service.
9. Indemnification. You agree to indemnify and hold Pogo, its officers, employees, agents, partners, suppliers (including but not limited to the Payment Card Networks) and licensors (each, a “Pogo Party” and collectively, the “Pogo Parties”) harmless, including costs and attorneys’ fees, from any loss, claim, or demand arising out of: (i) your use of the Service; (ii) your violation of this Agreement; (iii) your violation of applicable laws or regulations; (iv) any disputes or issues between you and any third party; or (v) your violation of any rights of any third party. We may assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter for which you may have an indemnification obligation hereunder without the prior written consent of Pogo. Pogo will use reasonable efforts to notify you of any claim, action, or proceeding for which you may have an indemnification obligation hereunder upon becoming aware of it. This provision does not require you to indemnify any of the Pogo Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site or Service provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Service.
10. Disclaimers; No Warranties. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS, AND POGO AND ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS (INCLUDING PAYMENT CARD NETWORKS OR PAYMENT PROCESSORS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. POGO AND ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS (INCLUDING PAYMENT CARD NETWORKS OR PAYMENT PROCESSORS) MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE, OR THAT THE INFORMATION OR RESULTS PROVIDED IN, OR THAT MAY BE OBTAINED FROM USE OF, THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, RELIABLE, COMPLETE, OR UP-TO-DATE. POGO AND ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS (INCLUDING PAYMENT CARD NETWORKS OR PAYMENT PROCESSORS) MAKE NO WARRANTIES WHATSOEVER REGARDING ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ADVERTISED, MADE AVAILABLE, OR REFERRED TO YOU THROUGH THE SERVICE. YOU ASSUME ALL RISK FOR ALL DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE. ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE DOWNLOADED, USED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK.
11. Limitation On Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL POGO PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT POGO (OR POGO’S SUPPLIERS, INCLUDING WITHOUT LIMITATION, THE PAYMENT CARD NETWORKS) HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE WHERE SUCH DAMAGES RESULT FROM OR RELATING TO (I) THIS AGREEMENT, (II) YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICE, OR (III) ANY PURCHASE OF A THIRD PARTY PRODUCT OR SERVICE BASED ON INFORMATION CONTAINED IN THE SERVICE, INCLUDING THE AVAILABILITY OF AN OFFER OR COUPON ACCESS TO, AND USE OF, THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICES OR COMPUTER SYSTEMS, OR LOSS OF DATA RESULTING THEREFROM. UNDER NO CIRCUMSTANCES WILL POGO PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO POGO BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) ONE HUNDRED U.S. DOLLARS (100 USD). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A POGO PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A POGO PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A POGO PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. THE LIMITATIONS OF DAMAGES SET FORTH IN THIS SECTION ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN POGO AND YOU.
12. Term and Termination
12.1. Term. You and we agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Service or (b) the date you accepted the Agreement and will remain in full force and effect while you use the Service, unless earlier terminated in accordance with the Agreement.
12.2. Termination of Services by Pogo. We may terminate this Agreement at any time for any reason, including you have materially breached any provision of the Agreement, or if Pogo is required to do so by law (e.g., where the provision of the Site, the App, or the Service is, or becomes, unlawful). Pogo may immediately and without notice, suspend or terminate any Services provided to you.
12.3. Termination of Services by You. If you want to terminate this Agreement, you may do so by (a) notifying Pogo at any time and (b) closing your Account. Your notice should be sent, in writing, to Pogo’s address set forth below.
12.4. Effect of Termination. Termination of this Agreement includes removal of access and all related information, files, Rewards, associated with or inside your Account (or any part thereof), and Your Content. Any rights you have to the Rewards in your Account will terminate and you will no longer be eligible to receive a distribution of such Rewards. Pogo will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content and your Rewards. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Pogo and limits the manner in which you can seek relief from us.
13.1. Applicability of Arbitration Agreement. You agree that any dispute, claim or request for relief relating in any way to your access or use of the Site, to the Service, or to any aspect of your relationship with Pogo, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or Pogo may seek equitable relief in court for infringement or other misuse of intellectual property rights. This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
13.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent: National Registered Agents, Inc., 1209 Orange Street, Wilmington, Delaware 19801. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/ all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Pogo will pay them for you. In addition, Pogo will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Pogo. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement) . The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
13.4. Waiver of Jury Trial. YOU AND POGO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Pogo are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.
13.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Pogo username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.7. Severability. Except as provided in subsection 13.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
13.8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Pogo.
13.9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Pogo makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Pogo at the following address: Pogo Technologies, Inc., 135 Madison Ave, 5th Floor, New York, NY 10016.
14.1. Changes. This Agreement are subject to occasional revision, and we reserve the right to charge fees for accessing and using the Service. If we make any substantial changes, we may require you to accept the changes, notify you by sending you an e-mail, as explained in Section 14.9), and/or by prominently posting notice of the changes on the Service. Any changes to this Agreement will be effective upon the earliest of when you provide your acceptance of the changes, thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable), and thirty (30) calendar days following our posting of notice of the changes on the Service. The changes will be effective immediately for new users of the Service. Continued use of our Service following notice of such changes shall indicate your acknowledgement and acceptance of such changes and agreement to be bound by the terms and conditions of such changes.
14.2. Export. The Service may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to use, export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Pogo, or any products utilizing such data, in violation of the United States export laws or regulations.
14.3. Disclosures. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
14.4. Electronic Communications. The communications between you and Pogo use electronic means, whether you use the Service or send us emails, or whether Pogo posts notices on the Service or communicates with you via email. For contractual purposes, you: (a) consent to receive communications from Pogo in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Pogo provides to you electronically satisfy any legal requirement that such communications would satisfy if it were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.
14.5. Force Majeure. Pogo shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.6. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Service, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
14.7. Governing Law and Venue. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT. Both you and Pogo agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York, New York.
14.8. Notice. Where Pogo requires that you provide an e-mail address, you are responsible for providing Pogo with your most current e-mail address. In the event that the last e-mail address you provided to Pogo is not valid, Pogo's dispatch of the e-mail containing such notice will constitute effective notice. You may give notice to Pogo at the following address: Pogo Technologies, Inc., 135 Madison Ave, 5th Floor, New York, NY 10016. Such notice shall be deemed given when received by Pogo by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
14.9. International Users. The Service can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Pogo intends to announce such services or content in your country. The Service is controlled and offered by Pogo from its facilities in the United States of America. Pogo makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other countries do so at their own volition and are responsible for compliance with local law.
14.10. Entire Agreement. This Agreement constitute the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Pogo is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Pogo’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Pogo may freely assign this Agreement. The terms and conditions set forth in this Agreement shall be binding upon assignees.
14.11. Contact Information:
Pogo Technologies, Inc.
135 Madison Ave, 5th Floor
New York, NY 10016
14.12. Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Pogo only, and not Apple, and (ii) Pogo, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Pogo and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Pogo.
(d) You and Pogo acknowledge that, as between Pogo and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Pogo acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Pogo and Apple, Pogo, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Pogo acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.