Effective Date: March 2nd, 2018
This Terms of Service agreement (“Terms”) is a legal contract between Panda Squad, Inc. (“Panda”, “we” “our”, “us”) and you. The Terms govern your access and use of the Panda mobile application (“Panda App”), any of our other products, and our website(s) (collectively “Panda Platform”). Read these Terms before you access the Panda Platform.
IMPORTANT NOTICE: UNLESS YOU CHOOSE TO OPT-OUT AS PROVIDED FOR IN SECTION 11, THE TERMS INCLUDE AN AGREEMENT TO BINDING ARBITRATION OF CERTAIN DISPUTES AND A WAIVER OF CERTAIN RIGHTS TO JURY TRIALS AND/OR CLASS ACTIONS. READ SECTION 11 CAREFULLY.
You must be 13 years of age or older to access Panda. By downloading or accessing our Panda's App, you affirm and represent that you are over 13 years of age.
1. License – What we grant you and you grant us
Panda's App and all of the Panda Platform and services are licensed to you, not sold. Panda grants you a personal, limited, non-transferable, revocable and nonexclusive license to; (a) access and use Panda's App on your personal device solely in connection with your use of Panda; and (b) access and use any content, information and related materials that are available through the Panda Platform for non-commercial use and subject to your compliance with these Terms. You may not sublicense, rent, lease, transfer or otherwise distribute Panda's App and/or any portion of Panda Platform.
Your right to use the Panda Platform is limited to the license grant above, and you may not otherwise copy, display, seek to disable, distribute, perform, publish, modify, transfer, or use the Panda Platform or any component thereof except as expressly permitted herein. You are prohibited from making any copies of any part of the Panda Platform, including, but not limited to Panda's App, or any component thereof available on a network where it could be used or downloaded by multiple users.
We reserve all right, title and interest in the Panda Platform. Panda or its licensors own or reserve all rights, including all right, title and interest in the Panda Platform, including, but not limited to Panda's App, and all associated intellectual property rights, including all software applications, and all associated copyrights, trademarks, and other intellectual property rights. You agree to protect Panda's copyright and other ownership interests in all elements or components of the Panda Platform. You may not decompile, disassemble, or reverse-engineer or attempt to extract or otherwise use source code or other data any of the Panda Platform, or any component thereof, by any means whatsoever unless expressly authorized by us or permitted by law. You may not remove, alter, or obscure Panda's trademarks or logos, legal notices, or any product identification, copyright, or other intellectual property notices, including any third party intellectual property notices, in the Panda Platform or related assets. Some parts of the Panda Platform are licensed under third party licenses. You may not adapt any portion of the Panda Platform or software code or visual design elements (including logos and trademarks) without our express written permission, unless otherwise provided by law.
1.4. Updates, Changes, and Support.
We may change, terminate or restrict access to any aspect of the Panda Platform, at any time, without notice. Panda reserves the right to change, suspend, remove, discontinue or disable access to the Panda Platform or particular portions thereof, at any time and without notice. In no event will Panda be liable for the removal of or disabling of access to any portion or feature of the Panda Platform. In addition, we may need to automatically update some of the software you obtain through the Panda Platform or provide you with new software to keep the Panda Platform functioning properly, which could include bug fixes, patches, enhanced features, missing plug-ins and new versions. By using the Panda Platform, you agree to such automatic updating. We reserve the right, in our sole discretion and where technically feasible, to disable your access to or ability to use that Panda Platform that we believe present a health and safety risk or violate our community standards, agreements, laws, regulations or policies. We will not incur any liability or responsibility if we choose to remove, disable, or delete such access or ability to use any or all portion(s) of the Panda Platform.
1.5 User Contributions.
In exchange for use of the Panda Platform, and to the extent that your contributions through use of the Panda Platform give rise to any intellectual property interest of any kind, you hereby, without limitation, irrevocably assign to Panda exclusively, perpetually and throughout the universe, any and all right, title and interest in and to your contributions, including without limitation all copyrights, trade secret rights, trademark rights, trade name rights, author's rights, moral rights and patent rights, including without limitation the right to secure all applications and registrations with respect thereto, and all renewals and extensions thereof free and clear of any and all rights and claims by you or any third party. For purposes of clarity, such assignment includes the right to use, perform, exhibit and/or exploit such contributions in perpetuity throughout the universe and in any manner, method, means, platform, device or media, whether now known or hereafter devised. In the event that any of the rights or materials assigned herein cannot presently be assigned under applicable law, you agree to assign such rights at such time as the rights are capable of being assigned and, until that time, or in the event such rights or materials cannot be assigned, then you hereby grant to Panda an irrevocable, exclusive, worldwide, fully-paid, royalty-free, transferable, sublicenseable, perpetual license to use your contributions in any media, whether now known or hereafter devised, and agree not to use such contributions yourself or to any third party's benefit. You also waive any rights of attribution, integrity or any other moral rights or rights of droit moral arising out of or related to your contributions.
2. Your Panda Account
To access and use certain features, you will be required to register for a Panda account.
By creating a Panda account, you agree to: (i) provide accurate, current and complete account information; (ii) accept all risks of unauthorized access to your account; (iii) promptly provide notice at firstname.lastname@example.org if you discover or otherwise suspect any security breaches related to your account; and; (iv) abide by these Terms. Further, you understand that your mobile network may charge you provider for data services or any other third-party charges as may arise while using the Panda Platform and you accept responsibility for such charges.
3. Conditions of Use & Codes of Conduct
When you access or use Panda, you agree that:
You may not use the Panda Platform for any commercial purpose except as expressly authorized by Panda in these Terms or other applicable agreement
You may not use the Panda Platform to violate any law, statute or ordinance and/or in the furtherance of any illegal activity
You may not abuse, hack, attack, interfere with, or otherwise disrupt the Panda Platform or do anything contrary to these Terms
You may not access the Panda Platform in a way that could violate applicable law, or in any manner not expressly authorized by Panda under these Terms
You may not use the Panda Platform to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages
You may not use the Panda Platform to harass, threaten, or abuse others, or post or upload obscene, pornographic, or otherwise objectionable materials
You may not use the Panda Platform to harm or exploit children by exposing them to inappropriate content or otherwise
You may not post any content that contains anything that Panda deems to be unlawful, harmful, abusive, racially or ethnically offensive, infringing, invasive of personal privacy, harassing, libelous, threatening or otherwise deemed offensive
You may not create, store, or share any content which violates third party rights of any kind, including, without limitation, any Intellectual Property Rights or rights of privacy. For purposes of these Terms, “Intellectual Property Rights” include all patent rights, copyrights, mask work rights, trademarks, rights of publicity, moral rights, service mark rights, goodwill, trade secret rights, or any other intellectual property rights now in existence or which may otherwise come into existence, under any applicable law, statute or regulation.
You will not rent, but, sell or lease your account
You will not create more than one account for yourself
Panda, in its sole discretion, may remove any content from the Panda Platform and/or may disable and/or terminate any account found to be in violation of these rules.
4. Copyright Complaints
Copyright Complaints & DMCA. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we remove material after receiving a valid DMCA complaint take down notice. Under our DMCA Policy, we will terminate, in appropriate circumstances and in our sole discretion, accounts of users who are deemed to be repeat infringers. We may also, in our sole discretion, limit access to the Panda Platform and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. If you believe that anything on or available through the Panda Platform infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below:
Panda Squad, Inc.
325 Octavia Street, Unit 210
San Francisco, CA
Attn: Daniel Singer
Please see the legal requirements of a proper notification under DMCA, 17 U.S.C. §512(c)(3), available at here and at the following address: http://www.copyright.gov/title17/92chap5.html#512
If you knowingly misrepresent in your notification that the material or activity is infringing or violating any existing trademarks, copyrights, patents, or other legal rights, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
5. Third-Party Services
Elements or components of the Panda Platform may be delivered via servers and technology not owned or controlled by Panda. Panda does not control those services and is not responsible for your use of Panda Platform on or through them. These third-party services may subject you to additional or different terms and restrictions. We may include hyperlinks to third party web sites. Those sites may collect data or solicit personal information from you. Panda does not control those sites and is not responsible for their content or for their collection, use or disclosure of personal information.
6. Changes to these Terms
We reserve the right to make change to these Terms at any time. If a change is material, we will notify you before the changes take effect posting a notice on or through the Panda Platform, sending you a SMS or email update (if we have the applicable information) and/or providing a new Effective Date above. By using the Panda Platform on or after the Effective Date, you agree to the new Terms. If you don't accept the new Terms, you should delete your account before they take effect; otherwise, your use of the Panda Platform will be subject to the new Terms.
In accordance with provisions in the Terms requiring that we give notice to you, we will do so by means of a general notice on the Panda Platform. If you are required under the Terms to give notice to Panda, you can do so by means of email to: email@example.com or by first class mail, postage prepaid, or overnight courier to:
Panda Squad, Inc.
325 Octavia Street, Unit 210
San Francisco, CA
8. Term and Termination
These Terms are effective until terminated by you or Panda in accordance with the notice provisions below. We may terminate your access and use of the Panda Platform or your authorized account if we determine that you have violated the Terms or that there has been otherwise unlawful, improper or fraudulent use of the Panda Platform. When practical, we will notify you of the termination. Upon termination, your license under the Terms also shall terminate. Upon termination for any reason, you must immediately cease using the Panda Platform, including, but not limited to Panda's App, destroy all copies of any software application within your possession or control and, promptly upon Panda's request, certify to Panda that you have done so. Paragraphs 1.3, 1.5, 8, 9, 11, 12, of these Terms shall survive any termination or expiration.
9. Risks and Disclaimer of Warranty
9.1. RISK & SPECIAL NOTICES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF THE PANDA PLATFORM IS AT YOUR SOLE RISK.
We are based in the United States and the Panda Platform are subject to U.S. law. We make no representations or warranties that the Panda Platform is appropriate or available for use in other locations.
9.2. NO WARRANTY.
PANDA PROVIDES THE PANDA PLATFORM TO YOU AS IS AND AS AVAILABLE. THIS MEANS YOU USE THE PANDA PLATFORM AT YOUR OWN RISK AND DISCRETION AND THE PANDA PLATFORM DOES NOT COME WITH ANY WARRANTY - NEITHER EXPRESS, NOR IMPLIED WARRANTIES OF ANY KIND, INCLUDING NO IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY TITLE OR NON-INFRINGEMENT. PANDA DOES NOT WARRANT THAT THE PANDA PLATFORM WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE, OR SECURE. FURTHER, PANDA DOES NOT GUARANTEE THAT THE PANDA PLATFORM WILL BE AVAILABLE IN ALL GEOGRAPHIC AREAS.
9.3. LIMITATION OF LIABILITY.
NEITHER PANDA NOR ANY OF ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES, LICENSORS, LICENSEES OR AGENTS, SHALL BE LIABLE IN ANY WAY FOR DAMAGE OR LOSS OF ANY KIND, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE) RESULTING FROM (A) THE USE OF OR INABILITY TO USE THE PANDA PLATFORM OR ANY SUBCOMPONENT THEREOF; (B) THE DOWNLOADING OF ANY SOFTWARE OWNED OR OPERATED BY PANDA OR ANY THIRD PARTY PROVIDER; (C) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE PANDA PLATFORM; (D) INTERRUPTIONS OF THE PANDA PLATFORM, INCLUDING WITHOUT LIMITATION SOFTWARE OR HARDWARE FAILURES OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA, INCLUDING, BUT NOT LIMITED TO PHOTOS, CONTACTS OR OTHER COMMUNICATIONS STORED ON YOUR DEVICE OR THE SERVICE OR DISRUPTION OF THE PANDA PLATFORM. IN NO EVENT SHALL PANDA OR ANY OF ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES, LICENSORS, LICENSEES OR AGENTS, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR ANY OTHER DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE PANDA PLATFORM. THIS LIMITATION INCLUDES IF THE PANDA PLATFORM IS HACKED OR UNAVAILABLE AND IT INCLUDES ALL TYPES OF DAMAGES (INDIRECT, CONSEQUENTIAL, SPECIAL OR EXPEMPLARY). THE LIMITATION ALSO INCLUDES ALL KINDS OF LEGAL CLAIMS, SUCH AS BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR ANY OTHER LOSS.
SOME JURISDICTIONS MAY NOT ALLOW A LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN WARRANTIES OR DISCLAIMERS. TO THE EXTENT THAT THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, PANDA'S TOTAL LIABILITY ARISING FROM THIS AGREEMENT AND SOLE OBLIGATION WITH RESPECT TO DAMAGES SHALL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS (US$100.00).
9.4. Warranties Material.
You agree that the sections and elements of the Terms that limit liability and disclaim warranties are material and essential terms of the Terms and that Panda would not grant you the rights granted in these Terms without your agreement to so limit liability and disclaim warranties.
You agree to defend, indemnify and hold harmless Panda, and any of its directors, officers, employees, affiliates or agents, from and against any and all claims, losses, damages, liabilities and other expenses (including reasonable attorneys' fees), arising from your breach of the Terms.
11. Dispute Resolution
Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California, before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS' Streamlined Arbitration Rules and Procedures which are available at the JAMS website www.jamsdr.com/. In the event of any conflict between these Terms and the JAMS' rules, these Terms shall prevail. Judgment may be entered in any court having jurisdiction If you initiate arbitration for a claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS rules. To the full extent permitted by law: (a) no arbitration shall be joined with any other; (b) there is no right or authority for any claim related to these Terms or the Panda Platform to be arbitrated on a class action basis or to utilize class action procedures; and (c) there is no right or authority for any claim to be brought in a purported representative capacity on behalf of the general public or any other persons.
You and Panda agree that the following claims are not subject to the above arbitration provision: (a) any claim seeking to enforce or protect, or concerning the validity of, any of your or Panda's intellectual property rights; and (b) any claim for equitable relief; provided, however that you may not, in any circumstance, seek to enjoin or limit the availability of the Panda Platform, including, but not limited to Panda's App. Without limiting or waiving any right or remedy to which Panda or its assigns may be entitled under these Terms or applicable law, in the event of any actual or threatened breach of the Terms by you or on your behalf, Panda would be irreparably damaged if these Terms were not specially enforced and, as such, you agree that Panda shall be entitled, without the need to post bond or other security or provide proof of damages, to obtain injunctive relief or other equitable relief in any court of competent jurisdiction. In addition to the foregoing, either party may assert an individual action in small claims court for claims that are within the scope of such court's jurisdiction in lieu of arbitration.
YOU AND PANDA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Panda agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.
11.2. JURY WAIVER.
THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THIS AGREEMENT, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. YOU UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
11.3. Right to Opt Out.
You may opt out of this agreement to arbitrate. If you do so, neither you nor Panda can require the other to participate in an arbitration proceeding. You may opt out by writing to us at firstname.lastname@example.org. You must notify us in writing within 30 days of the date that you first became subject to this arbitration provision, and must include your name and residence address, the email address you use for your account (if you have one), and a clear statement that you want to opt out of this arbitration agreement. Your decision to opt-out of arbitration will have no adverse effect on your relationship with us.
Unless you choose to opt out, this dispute resolution provision in Section __ shall survive termination of these.
12. Miscellaneous Provisions
12.1. Entire Agreement.
The Terms are the entire understanding and agreement between you and Panda with respect to the Panda Platform and supersedes any prior written or oral agreements between the parties.
You may not assign these Terms or any of the rights granted hereunder without the prior written consent of Panda, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, these Terms will be fully binding upon, inure to the benefit of, and be enforceable by us and our respective successors and assigns.
12.3. No Waiver.
Any failure to exercise any right provided in the Terms shall not be a waiver of prior or subsequent rights.
If a court of competent jurisdiction finds any provision of these Terms invalid, you agree that the court should try to give effect to the parties' intentions as reflected in the provision and that other provisions of the Terms will remain in full effect.
12.5 Third Party Beneficiaries.
Except as otherwise expressly provided in the Terms, there shall be no third-party beneficiaries to these Terms.
12.6. Governing Law.
The laws of the state of California governs these Terms, without reference to its conflict of laws principles, except as may be otherwise provided in the Dispute Resolution section above. You agree that any suit arising from the Panda Platform must take place in a court located in San Francisco California except as may be otherwise provided in the Dispute Resolution section above. The choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Californians to assert claims under California law, whether by statute or otherwise.
12.7 Export Controls.
You must comply with all export laws and regulations of the United States or any other country and you shall not export, direct or transfer any portion of the Panda Platform, or any direct product thereof, to any destination, person or entity restricted or prohibited by any such export laws and regulations.
If you have any questions about these Terms, or if you want to contact Panda for any reason, please direct all correspondence to email@example.com.