Poly API Corporation
Last Updated: September 20, 2023
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND POLY API’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY POLY API AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND POLY API ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. Poly Service Overview. Poly’s Service empowers development teams to streamline their API discovery and consumption process. With our Service, developers can discover known company-wide APIs and consume them as functions, abstract integration logic as new functions, and teach the Service new APIs that are not already integrated into the development environment.
2. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration. To access some features of the Service, you may have to register for an account, and your Authorized Users (defined below) will need to be granted access in accordance with Section 5.2. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you may be asked to create a password and you may be issued private keys. You are solely responsible for maintaining the confidentiality of your account, password, and keys, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at email@example.com. You represent and warrant that you are not (and if you are an entity, organization, or company, no employee, contractor, or agent of yours is) creating additional accounts for the purposes of circumventing usage limitations or other restrictions in these Terms.
4. General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise specifically provided for in these Terms, all fees are in U.S. Dollars and are non-refundable, except as required by law.
4.1 Price. Poly reserves the right to determine pricing for the Service. Poly will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing page periodically for current pricing information. Poly may change the fees for any feature of the Service, including additional fees or charges, if Poly gives you advance notice of changes before they apply. Poly, at its sole discretion, may make promotional offers with different features and different pricing to any of Poly’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2 Authorization. You authorize Poly to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Poly, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then Poly may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.3 Subscription Service. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service, or we terminate it. If you activate a Subscription Service, then you authorize Poly or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see our pricing page. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service at least 15 days before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Poly or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service by contacting us at firstname.lastname@example.org. YOUR CANCELLATION MUST BE RECEIVED AT LEAST 15 DAYS BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.
4.4 Delinquent Accounts. Poly may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then Poly reserves the right to delete your account and any information or User Content (defined below) associated with your account without any liability to you.
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Poly grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable (except as provided in Section 5.2), revocable license to: (a) install and use a reasonable number of object code copies of any downloadable application associated with the Service on a device that you own or control; and (b) access and use the Service.
5.2 Access by Authorized Users. You may provide access to your employees and subcontractors (“Authorized Users”) who provide services to you for your internal use of the Service, provided that each Authorized User complies with these Terms (including all restrictions on usage). By providing access to the Service to an Authorized User, you agree to be responsible for that Authorized User’s full compliance with these Terms, and any act or omission by them that would be a breach of these Terms if they were bound to these Terms will be deemed your breach of these Terms.
5.3 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not, and you may not facilitate any third party (including any Authorized User) to: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
5.4 Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Poly an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
6. Ownership; Proprietary Rights. The Service is owned and operated by Poly. The visual interfaces, graphics, design, compilation, APIs, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Poly (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Poly or its third-party licensors. Except as expressly authorized by Poly, you (and your Authorized Users) may not make use of the Materials. There are no implied licenses in these Terms and Poly reserves all rights to the Materials not granted expressly in these Terms.
7. Third-Party Terms
7.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8.1 User Content Generally. Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Upload”) content to the Service, including folders, data, text, code, and any other works of authorship or other works (“User Content”). You may only use the storage functionality of Service to store custom function code (compiled or uncompiled), variable values, dependencies, and related configuration and meta-data, as necessary to execute your code on the Service (per the technical documentation). Any other use, including but not limited to, using the Service for the purpose of hosting generally accessible content for download or storage, is not permitted, and may result in us deleting your User Content or suspending your access to the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you Upload to the Service, subject to the licenses granted in these Terms. You agree to pay all monies owing to any person or entity resulting from Uploading your User Content and from Poly’s exercise of the license set forth in this Section.
8.2 Public and Private Content. By default, User Content will be privately accessible and viewable by you only (“Private Content”), but You may, through the available functionality of the Service, mark any or all of Your User Content as publicly accessible and available to other users of the Service (“Public Content”).
8.3 License Grant to Private Content. By Uploading Private Content to or via the Service, you hereby grant Poly a worldwide, perpetual, irrevocable, transferable, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to access, collect, retain, use, process, transmit, host, store, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and otherwise exploit your Private Content, in whole or in part, in each case solely in connection with the provision, operation, maintenance and improvement of the Service.
8.4 License Grant to Public Content. By Uploading Public Content to or via the Service, you grant Poly a worldwide, perpetual, irrevocable, transferable, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to access, collect, retain, use, process, transmit, disseminate, disclose, host, store, transfer, publicly display, publicly perform, communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, distribute, and otherwise exploit your Public Content, in whole or in part, in each case solely in connection with the provision, operation, maintenance and improvement of the Service Poly will use commercially reasonable efforts to design the Service so that it will permit you to protect from public disclosure to other users of the Service your Public Content consisting of the data used to train API functions or the source code of any custom client or server functions.
8.5 You Must Have Rights to the Content You Upload; User Content Representations and Warranties. You must not Upload User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Poly disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Poly and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Poly, the Service, and these Terms;
(b) your User Content, and the Uploading or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Poly to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, violent, or otherwise inappropriate.
1. You are responsible for maintaining licenses and adhering to the license terms of any software you adapt, run, copy, or distribute. If we reasonably believe any of your User Content violates the law, infringes or misappropriates the rights of any third party, or otherwise violates a material term of these Terms, we will notify you of the prohibited User Content and may request that such content be removed from the Service or access to it be disabled. If you do not remove or disable access to the prohibited User Content within two business days of our notice, we may remove or disable access to the prohibited User Content and/or suspend your access to the Service, either in whole or in part. Notwithstanding the foregoing, we may remove or disable access to any prohibited User Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Service, or in accordance with applicable law or any judicial, regulatory. or other governmental order or request. In the event that we remove your User Content without prior notice, we will provide prompt notice to you unless prohibited by applicable law.
8.6 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Upload and will not be in any way responsible or liable for User Content. Poly may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Poly with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Poly does not permit infringing activities on the Service.
8.7 Monitoring Content. Poly does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Poly reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Poly chooses to monitor the content, then Poly still assumes no responsibility or liability for content, or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used. Poly may block, filter, remove, or disable access to any User Content uploaded to or transmitted through the Service without any liability to the user who Uploaded such User Content to the Service or to any other users of the Service.
8.8 Retention. Subject to the restrictions on User Content contained in these Terms, we may (but are under no obligation to) delete, upon 30 days’ notice to you, any of your User Content: (i) if it has not been accessed, modified, or run for more than 60 days, or (ii) if your access to the Service terminates or expires for any reason.
9.1 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
10.2 harass, threaten, demean, embarrass, bully, or otherwise harm any individual;
10.3 violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
10.4 access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Poly;
10.5 interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
10.6 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
10.7 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission;
10.8 use the Service in connection with the creation or distribution of code that is designed to disrupt, damage, or gain unauthorized access to a computer system;
10.9 use the Service in a way that violates the Usage Policies of OpenAI (available at https://openai.com/policies/usage-policies);
10.10 monitoring or crawling of any system or service, including harvesting or scraping of any content of the Service or any other system or service;
10.11 mining any cryptocurrency or other activities involving “proof-of work”, or any similar activities;
10.12 use the Service to host any service that is accessible to anyone other than you or your Authorized Users;
10.13 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
10.14 attempt to do any of the acts described in this Section 10 (Prohibited Conduct) or assist or permit any person (including any Authorized User) in engaging in any of the acts described in this Section 10 (Prohibited Conduct).
11.1 Respect of Third-Party Rights. Poly respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
11.2 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
Poly API Corporation
c/o Delaware Registered Agent
8 The Green, Suite R, Dover, DE 19901
11.3 Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property right that you claim has been infringed;
(c) a description of the material that you claim is infringing and where it is located on the Service;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and
(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.
2. Your Notification of Claimed Infringement may be shared by Poly with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to Poly making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
11.4 Repeat Infringers. Poly’s policy is to: (a) remove or disable access to material that Poly believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. Poly will terminate the accounts of users that are determined by Poly to be repeat infringers. Poly reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
11.5 Counter Notification. If you receive a notification from Poly that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Poly with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Poly’s Designated Agent through one of the methods identified in Section 11.2 (DMCA Notification), and include substantially the following information:
(a) your physical or electronic signature;
(b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(d) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which Poly may be found, and that you will accept service of process from the person who provided notification under Section 11.2 (DMCA Notification) above or an agent of that person.
3. A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
11.6 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Poly in response to a Notification of Claimed Infringement, then Poly will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Poly will replace the removed User Content or cease disabling access to it in 10 business days, and Poly will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Poly’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Poly’s system or network.
11.7 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Poly] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” Poly reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
12. Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should remove your User Content and discontinue your use of the Service. Except as expressly permitted in this Section 12(Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
13. Term, Termination, and Modification of the Service
13.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2 (Termination).
13.2 Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Poly may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at email@example.com.
13.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Poly any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.4 (Feedback), 6 (Ownership; Proprietary Rights), 13.3 (Effect of Termination), 14 (Indemnity), 15 (Disclaimers; No Warranties by Poly), 16 (Limitation of Liability), 17 (Dispute Resolution and Arbitration), and 18 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Upload to the Service since upon termination of your account, you may lose access rights to any User Content you Uploaded to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification. Upon termination, no payments made to Poly will be refundable, except in the case that: (i) Poly terminates these Terms for convenience under Section 13.2, or (ii) if you terminate these Terms under Section 12, in which case we will offer you a pro rata refund of any amounts prepaid for the portion of the Service not yet provided.
13.4 Modification of the Service. Poly reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Poly will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Upload to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Uploaded to the Service.
14. Indemnity.To the fullest extent permitted by law, you are responsible for your, and your Authorized Users’, use of the Service, and you will defend and indemnify Poly, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Poly Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your (or an Authorized User’s) unauthorized use of, or misuse of, the Service; (2) your (or an Authorized User’s) violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your (or an Authorized User’s) violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you (or an Authorized User) and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. POLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. POLY DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND POLY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
15.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR POLY ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE POLY ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
15.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 15 (DISCLAIMERS; NO WARRANTIES BY POLY) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Poly does not disclaim any warranty or other right that Poly is prohibited from disclaiming under applicable law.
16.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE POLY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY POLY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
16.2 EXCEPT AS PROVIDED IN SECTIONS 17.5 (COMMENCING ARBITRATION) AND 17.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE POLY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO POLY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
16.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17.1 Generally. Except as described in Section 17.2 (Exceptions) and 17.3 (Opt-Out), you and Poly agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND POLY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
17.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to Poly API Corporation, c/o Delaware Registered Agent, 8 The Green, Suite R, Dover, DE, 19901, that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Poly receives your Opt-Out Notice, this Section 17 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
17.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the JAMS under the rules applicable to consumer disputes (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at http://www.jamsadr.com, by calling the JAMS at +1-800-352-5267 or by contacting Poly.
17.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Poly’s address for Notice is: Poly API Corporation, c/o Delaware Registered Agent, 8 The Green, Suite R, Dover, DE, 19901. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Poly may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Poly will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.
17.6 Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your billing address. During the arbitration, the amount of any settlement offer made by you or Poly must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
17.7 Arbitration Relief. Except as provided in Section 17.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Poly before an arbitrator was selected, Poly will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
17.8 No Class Actions. YOU AND POLY 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 Poly 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.
17.9 Modifications to this Arbitration Provision. If Poly makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Poly’s address for Notice of Arbitration, in which case your account with Poly will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
17.10 Enforceability. If Section 17.8 (No Class Actions) or the entirety of this Section 17 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Poly receives an Opt-Out Notice from you, then the entirety of this Section 17 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 (Governing Law) will govern any action arising out of or related to these Terms.
18.1 General Terms. These Terms, including any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Poly regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
18.2 Governing Law. These Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. You and Poly submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Delaware for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Colorado, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
18.3 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.4 Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
18.5 Contact Information. The Service is offered by Poly API Corporation. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
18.6 Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
18.7 Support. Poly will use commercially reasonable efforts to provide support for your access to and use of the Service, consistent with industry-standards and our general business practices. In instances where we may offer support, the support will be subject to our published policies, as applicable, and certain types of support may be subject to additional fees.
18.8 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use in every country, or that the Service complies with the laws of every country. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
18.9 Trials and Betas. Poly may offer optional access to the Service on a free, trial, beta, or early access basis (“Trials and Betas”). Use of Trials and Betas is permitted only for your internal evaluation during the period designated by us in an ordering document or other communication from us related to the applicable Trial and Beta program. We may terminate your use of Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features never released. Notwithstanding anything else in these Terms, we offer no representations, warranties, indemnities, service-level or other guarantees, or support for Trials and Betas, and our liability for Trials and Betas will not exceed US$100.
18.10 No Third-Party Beneficiaries. Nothing in these Terms shall convey any rights upon any person or entity which is not a party or a successor or permitted assignee of a party to these Terms, including any Authorized User or third-party service provider.