These Terms of Service (“Terms”) apply to your access and use of the Services. The “Services” include the websites, services, including Pocketalk Center, and physical devices, for example, Pocketalk (“Devices”) of Sourcenext, Inc. and its affiliates (“Sourcenext” or “us” or “we”) as well as associated firmware, applications, software, APIs, products, and services.
You must accept these Terms to create an account with Sourcenext and to access or use the Services. If you do not have an account with Sourcenext, you are accepting these Terms by using or accessing any part of the Services.
If you do not agree to these Terms, you are not permitted to, and should not, use or access any part of the Services.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN A REQUIREMENT THAT CERTAIN DISPUTES AND CLAIMS BE SUBJECT TO ARBITRATION AND THEY OTHERWISE LIMIT THE MANNER IN WHICH YOU CAN MAKE A CLAIM AGAINST SOURCENEXT.
Effective Date of Terms: August 29, 2018
1) THE SERVICES AND THESE TERMS
Persons under the age of 18, or any higher age of majority in the jurisdiction where that person resides, are not permitted to access or use the Services unless their parent or legal guardian has consented to such access or use and has agreed to these Terms in accordance with applicable law. Additionally, you cannot access or use the Services if you are barred from receiving services under applicable law or have previously been suspended or removed from the Services.
You may only connect to Pocketalk Center as permitted by Sourcenext. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the Service. Additional terms applicable to your access to and use of Pocketalk Center are located at https://www.sourcenext.com/permission/132/ (the “Pocketalk Center Terms”). If you have questions about Pocketalk Center or whether a product or application qualifies as an Authorized Connection, please contact firstname.lastname@example.org.
3) YOUR ACCOUNT
Full use of the Services requires that you create an account by providing us with information such as your full name and a valid email address, as well as a strong password. You are responsible for all activity that occurs in association with your account. Sourcenext is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials. Please contact email@example.com if you discover or suspect any security breach related to the Service or your account.
4) REQUIRED EQUIPMENT
Full use of the Services, including Pocketalk Center, is dependent upon your use of a Device and Internet access, and may be dependent on your use of a computer with adequate software or a supported mobile device. The maintenance and security of any equipment may influence the performance of the Services.
5) YOUR CONTENT
Sourcenext may enable you to post, upload, store, share, send, or display photos, images, video, data, text, and other information and content (“Your Content”) to and via the Services subject to these Terms.
Your Content that is made available on or through Pocketalk Center shall be subject to the Pocketalk Center Terms.
Other Parts of the Services
By making Your Content available on or through the Services other than Pocketalk Center you hereby grant to Sourcenext a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works from, and distribute Your Content, in whole or in part, including your name and likeness, in any media or format.
You represent and warrant that: (a) you own all rights, title, and interest in and to Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms; and (b) Your Content, the use and provision of Your Content on the Services, and your use of the Services will not (i) infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (ii) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to any liability; (iii) be fraudulent, false, misleading, or deceptive; (iv) be defamatory, obscene, pornographic, vulgar, or offensive; (v) promote discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (vii) promote illegal or harmful activities or substances.
You further agree not to (1) upload any content that contains software viruses or is designed to interrupt, destroy, or limit the functionality of any equipment or services, or that contains other harmful, disruptive, or destructive files or content; (2) use or attempt to use another user’s account without authorization, or impersonate any person or entity; (3) harvest, solicit, or collect information of other users for any reason whatsoever, including, without limitation, for sending unsolicited communications; (4) post, advertise, or promote products or services commercially, or upload any content that is advertising, promotional material, junk mail, spam, or a contest or sweepstake, or that furthers or promotes criminal activity; or (5) use the Services in any manner that, in our sole discretion, is objectionable or restricts or inhibits any other person from using or enjoying the Services, or which may expose us or our users to any harm or liability of any type.
Sourcenext may, in its sole discretion at any time, alter, remove, or refuse to display any of Your Content, and may prohibit you from posting, uploading, storing, sharing, sending, or displaying Your Content to and via the Services.
6) INTELLECTUAL PROPERTY RIGHTS
“Sourcenext Materials” means any photos, images, graphics, video, audio, data, text, music, comments, software, and other information, content, or other materials that are posted, generated, provided, or otherwise made available through the Services. The Services and their underlying technology, and all Sourcenext Materials, are protected by copyright, trademark, patent, trade secret, and other laws of the United States, Japan, and other countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services or the Sourcenext Materials. You shall not copy or use in any way, Sourcenext names, logos, and any other Sourcenext trademarks, as well as the Services graphics, look and feel, and other elements of the user interface, including page headers, graphics, icons, and scripts, in whole or in part, without our prior written permission.
Other trademarks, product, and service names and company names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark owner.
If you submit comments, suggestions, or other feedback (collectively, “Feedback”) to us, you hereby assign to Sourcenext all rights, title, and interest in and to such Feedback. Accordingly, without limiting the foregoing, you agree that we can use, disclose, reproduce, distribute, and exploit any and all Feedback without any restriction or compensation to you.
Sourcenext hereby reserves all rights not expressly granted to you in these Terms.
7) USE OF SERVICES AND RESTRICTIONS
The Services are intended for your personal, non-commercial use. Subject to all requirements and restrictions of these Terms, Sourcenext grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (1) access and use the Services, (2) access and view the Sourcenext Materials, (3) access and use the software and applications provided by the Services, and (4) use the software that is embedded into Devices, each solely as necessary to use the Services in accordance with these Terms. This license is provided solely for your personal, non-commercial use of the Services solely as expressly permitted in these Terms.
You shall not use, sublicense, copy, adapt, modify, translate, disclose, prepare derivative works based upon, distribute, license, sell, rent, lease, assign, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Sourcenext Materials, the Services or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Sourcenext or its licensors, except for the licenses and rights expressly granted in these Terms.
Except to the extent permitted by law or as expressly permitted by Sourcenext in writing, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Services: (1) use, display, mirror, or frame the Services or any individual element within the Services, including the layout and design of any page; (2) use Sourcenext’s name or any Sourcenext trademark, logo, or other intellectual property; (3) access or tamper with non-public areas of the Services or Sourcenext’s or its providers’ systems; (4) test the vulnerability of the Services or Sourcenext Materials or breach any security or authentication measures; (5) circumvent or tamper with any technological measure implemented by Sourcenext, a Sourcenext provider, or any other third party to protect the Services or Sourcenext Materials; or (6) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that is part of the Services, Sourcenext Materials, or is otherwise provided to you.
Sourcenext may, but is not obligated to, monitor access or use of, or review or edit, the Services or the Sourcenext Materials. We may consult with and disclose unlawful conduct to law enforcement authorities and, pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law.
Sourcenext may, but is not obligated to, remove or disable access to the Services, any Sourcenext Materials, or Your Content at any time and without notice, and in our sole discretion, if we suspect or determine that your use of the Services or Sourcenext Materials, or Your Content, is in violation of these Terms or is otherwise objectionable or inappropriate.
As part of your use of the Services, you understand and agree that you may receive notifications, text messages, alerts, emails, and other electronic communications, such as service announcements and administrative messages (collectively, “Notifications”). You are responsible for any messaging or data fees you may be charged by your wireless carrier for any Notifications. Any Notification that we send to you electronically shall be deemed to satisfy any legal communication requirements, including that the communication be in writing.
10) THIRD PARTY SERVICES
11) CHANGES TO THE SERVICES
Sourcenext may change or discontinue, temporarily or permanently, any feature or component of the Services at any time without notice. We are not liable to you or to any third party for any modification, suspension, or discontinuance of any feature or component of the Services. Sourcenext reserves the right to determine the timing and content of software updates, which may be automatically downloaded and installed by the Services, including but not limited to the Devices, without prior notice to you.
Sourcenext reserves the right to suspend or terminate your account or your access to certain parts or all of the Services, or to terminate these Terms, in our sole discretion, at any time and without notice or liability to you. Upon any such suspension or termination, we may delete or remove Your Content and other information related to your account. You may close your account at any time by contacting firstname.lastname@example.org. Upon any termination of the Services, your account, or these Terms, those provisions that by their nature should survive such termination shall survive such termination, including Sections 1, 2, 5, 6, 10, 12, 13, 14, 15, 16, 17. 18, and 19.
The Services and Sourcenext Materials are provided “as is” and without warranty of any kind. If you rely on any portion of the Services or Sourcenext Materials for any reason, you do so at your own risk. Sourcenext makes no endorsement, representation, or warranty of any kind about any Services or Sourcenext Materials, including but not limited to any translations made available via the Pocketalk Device. Accordingly, you acknowledge and agree that Sourcenext is not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through the Services, including but not limited to any translations. In addition, you are required to read and comply with all safety notices that accompany the Devices, including those located in the Product User Guide.
THE SERVICES AND SOURCENEXT MATERIALS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING: (A) SOURCENEXT EXPLICITLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; AND (B) SOURCENEXT makeS no warranty (I) that the Service or SOURCENEXT MATERIALS will meet your requirements or be available on an uninterrupted, secure, or error-free basis, or (ii) regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of the services or any sourcenext materials.
You agree to indemnify and hold harmless Sourcenext and its officers, directors, employees, affiliates, agents, licensors, and contractors (the “Indemnified Parties”) from and against any claims, complaints, actions, demands, or allegations brought against any or all of the Indemnified Parties (collectively, “Claims”) and all liabilities, damages, costs, and expenses, including without limitation reasonable attorneys’ fees arising out of or in any way related to (i) your access to or use of the Services, (ii) Your Content, (iii) your breach of these Terms, or (iv) your violation of any law or regulation or the rights of any third party. We reserve the right to assume control of the defense of any Claim that is subject to indemnification by you, and you agree to cooperate with us with respect to any such Claim. In addition, you shall not settle or otherwise dispose of any Claim without express prior written consent from Sourcenext.
15) LIMITATION OF LIABILITY
IN NO EVENT SHALL SOURCENEXT, ITS SUPPLIERS, OR ITS LICENSORS BE LIABLE FOR: (A) ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR SOURCENEXT MATERIALS, WHETHER BASED ON CONTRACT, TORT, PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY; OR (B) MAXIMUM DAMAGES IN THE AGGREGATE OF THE GREATER OF (I) THE AMOUNTS YOU HAVE PAID TO SOURCENEXT FOR USE OF THE SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM OR (II) ONE HUNDRED DOLLARS ($100).
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SOURCENEXT AND YOU AND SHALL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHETHER OR NOT A PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, OR IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR CERTAIN EXCLUSIONS OR LIMITATIONS OF LIABILITY, SO CERTAIN OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
16) GOVERNING LAW
These Terms and all Disputes shall be construed in accordance with and governed by the laws of the State of California without regard to conflict of laws principles.
17) DISPUTE RESOLUTION
Each party agrees that, except as set forth under the Exceptions paragraph below, any dispute between you and Sourcenext 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), the Services, the Sourcenext Materials, or any other Sourcenext products or services (collectively, “Disputes”) will be subject to arbitration in accordance with this Section 17. You can decline this agreement to arbitrate by contacting email@example.com within thirty (30) days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration provision. In the event that you so decline this arbitration provision, or this arbitration provision is otherwise found not to apply to you or your Dispute, you and Sourcenext agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Santa Clara County, California. Both you and Sourcenext agree to the exclusive jurisdiction of, and that venue is proper in, such courts.
Any Dispute shall be resolved by arbitration in Palo Alto, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The JAMS Rules are available at www.jamsadr.com. In the event a provision of this Section conflicts with the applicable arbitration rules, such provision of this Section shall control. Under no circumstances will class action procedures or rules apply to the arbitration. In addition, because these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. The arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. The party initiating the arbitration for a Dispute will be required to 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.
Class Action Waiver
Except as otherwise provided in this Section 17, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Sourcenext specifically agree to do so following initiation of the arbitration. If you choose to pursue a Dispute in court by opting out of the arbitration provision, as specified above, this class action waiver will not apply to you. Neither you, nor any other user of the Services is permitted to be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by accepting the arbitration provision in these Terms, you and Sourcenext are each waiving the right to a jury trial or a trial before a judge in a public court.
If any clause within this Section 17 (other than the Class Action Waiver paragraph above) is found to be illegal or unenforceable, that clause will not apply, but all enforceable provisions will remain valid. If the Class Action Waiver paragraph is found to be illegal or unenforceable, this entire Section 17 will be unenforceable and the dispute will be decided by a court.
Either you or Sourcenext may assert claims, if they qualify, in small claims court in Palo Alto, California or in any United States county where you live or work. Either party may bring a lawsuit solely for injunctive or other equitable relief to stop unauthorized use of the Services or Sourcenext Materials, or infringement of intellectual property rights without first engaging in arbitration.
Limitation on Claims
Regardless of any law to the contrary, any claim or cause of action arising out of a Dispute must be filed within one (1) year after such claim or cause of action arose, or such claim or cause of action will be forever barred.
18) GENERAL PROVISIONS
Except as otherwise expressly stated herein, these Terms constitute the complete and exclusive agreement between Sourcenext and you regarding the Services, the Sourcenext Materials, and any other subject matter of these Terms. Accordingly, these Terms supersede and replace any and all prior oral or written understandings or agreements between Sourcenext and you related to the Services, the Sourcenext Materials, and any other subject matter of these Terms.
Sourcenext may modify these Terms in its sole discretion. Such modified Terms will specify their effective date. We will notify you before we make material changes to these Terms and give you an opportunity to review the modified Terms before continuing to use the Services. By using the Services after a modification to these Terms becomes effective, you are accepting the modified Terms. You can review previous versions of these Terms in our archive.
If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign, delegate, or transfer these Terms, by operation of law or otherwise, without Sourcenext’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be of no effect. Sourcenext may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Any notices or other communications provided by Sourcenext under these Terms, including those regarding modifications to these Terms, will be given (i) via email or (ii) by posting to the Services. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
Sourcenext’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Sourcenext. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
19) DMCA/COPYRIGHT POLICY
Sourcenext respects the intellectual property of others and asks that users of our products and services do the same. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe the rights of copyright holders. Please see our Copyright Policy.
20) CONTACTING US
If you have any questions about these Terms, please contact us at firstname.lastname@example.org.