Last Updated 2.13.18
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
We provide Visitors and Registered Users with access to our services through the Platform as described below.
Visitors. Visitors, as the term implies, are people who do not register with us, but want to explore the Website. No login is required for Visitors. Visitors can view all publicly-available content on the Website. Visitors do not have access to the Apps.
Registered Users. Registered Users are people who create an account in order to use the Platform. Registered Users can do all the things that Visitors can do, and: (i) access non-public features/functionality on the Platform available only to Registered Users; (ii) create, access, manage, and update their own personal accounts on the Platform; and (iii) post videos, comments, and other content on the Platform and/or interact with other Registered Users of the Platform (all content and information provided in connection with the foregoing is collectively referred to herein as “Registered User Content”.
Packagd is under no obligation to accept any individual as a Registered User and may accept or reject any registration in its sole and complete discretion. In addition, Packagd may deactivate any account at any time, including, without limitation, if it determines that a Registered User has violated this Agreement.
Packagd’s community, like any community, functions best when its users follow a few simple rules. By accessing and/or using the Platform, you agree to comply with the following community guidelines (the “Community Guidelines”):
We have the right, but not the obligation, to review and reject or remove Registered User Content that, in our sole discretion, does not adhere to these Community Guidelines. We also reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or to any portion of the Platform, at any time without notice.
If you are a Registered User and do not log into the Platform using a third-party login provider (e.g., Facebook), you will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Registered User. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered or payments made through the Platform using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action.
The Platform contains material, such as software, text, graphics, images, designs, sound recordings, audiovisual works, and other material provided by or on behalf of Packagd (collectively referred to as the “Content”). The Content may be owned by us or third parties. For avoidance of doubt, Content does not include your Registered User Content, but does include the Registered User Content of other Registered Users. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors.
The trademarks, service marks, and logos of Packagd (the “Packagd Trademarks”) used and displayed on the Platform are registered and unregistered trademarks or service marks of Packagd. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Packagd Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Packagd Trademarks inures to our benefit.
As noted above, the Platform provides Registered Users the ability to post and upload Registered User Content. You expressly acknowledge and agree that once you post or upload your Registered User Content, it will be accessible by others, and that there is no confidentiality or privacy with respect to such Registered User Content, including, without limitation, any personally identifying information that you may make available. By uploading any Registered User Content to the Platform, you warrant and covenant that such Registered User Content shall comply with all applicable laws, rules, and regulations (including, but not limited to, the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, which can be found here: https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf).
YOU, AND NOT PACKAGD, ARE ENTIRELY RESPONSIBLE FOR ALL REGISTERED USER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE PLATFORM.
You retain all copyrights and other intellectual property rights in and to your own Registered User Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, irrevocable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your Registered User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. You also grant us and our sublicensees the right, but not the obligation, to use your Registered User Content, your Sign-In Name, name, likeness, and photograph in connection with any use of the related Registered User Content permitted by the previous sentence and/or to advertise and promote the Platform, Packagd, and our products and services. Without limiting the foregoing, you acknowledge and agree that uses of your Registered User Content, name, likeness, and photograph permitted by the foregoing rights and licenses may include the display of such Registered User Content, name, likeness, and photograph adjacent to advertising and other material or content, including for profit.
If you submit Registered User Content to us, each such submission constitutes a representation and warranty to Packagd that such Registered User Content is your original creation (or that you otherwise have the right to provide the Registered User Content), that you have the rights necessary to grant to Packagd the license to the Registered User Content as set forth above, and that the Registered User Content and its use by Packagd and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guidelines.
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
Packagd makes available for sale on the Platform various products which are produced, manufactured, and/or sold by third parties (the “Products”). Packagd reserves the right to remove any Product offered for sale on the Platform at any time without notice to you. All Product images and descriptions on the Platform, including product pages, are shown for informational purposes only, and may not be wholly representative of the Products and their features. Products may have slight variations, including, but not limited to, variations in color, size and packaging, from the images shown on the Platform. From time to time, there may be Product information on the Platform that contains typographical errors, inaccuracies, or omissions that may relate to Product descriptions, Product prices, promotions, offers, and availability. Packagd reserves the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders, if any information on the Platform is inaccurate at any time without prior notice, even after you have received an order confirmation or shipping notification.
All orders for Products are subject to Packagd’s written acceptance, which shall be communicated to you in an order confirmation email. Orders are subject to Product availability, as provided to Packagd by the applicable Product provider (the “Third Party Seller”). We reserve the right, at any time for any reason, to cancel an order, or refuse to process or accept and order, even after an order confirmation has been sent to the buyer. We shall not be liable to the buyer or any third party as a result of an order cancellation or refusal to process or accept an order, provided, however, that you may be eligible for a refund, at our reasonable discretion.
Your right to return and/or exchange a Product shall be subject to (i) the applicable Third Party Seller Terms, and (ii) Packagd’s receipt of confirmation from the Third Party Seller that your return has been accepted. Please read the Third Party Seller Terms, and in particular any return policy therein, before making a purchase. To the extent the Third Party Seller accepts returns, you must initiate the Product return process by contacting us directly at [firstname.lastname@example.org]. Once you initiate the return, Packagd will determine, in its sole discretion, whether the return meets the requirements of this paragraph, and will notify you in writing (including by email) of its determination. We reserve the right to refuse to accept any Product return, or to issue a refund, if we determine that the return does not meet the requirements of this paragraph.
The Platform may contain links to third-party websites, including, but not limited to, those of Third Party Sellers (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content or products available through such External Sites. The External Sites may offer third-party goods and services (the “Third Party Products”), and you acknowledge and agree that: (i) Packagd does not manufacture or sell the Third Party Products and thus has no control over the quality, safety, legality or efficacy of any Third Party Product; (ii) Packagd has no involvement in any transaction involving any Third Party Products; and (iii) Packagd shall have no liability with respect to any Third Party Product or any transaction or interaction between you and the provider of any Third Party Product.
The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
THE PLATFORM, THE CONTENT, AND THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE PLATFORM WILL OPERATE ERROR-FREE, THAT THE PLATFORM, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES, OR THAT THE PRODUCTS ARE FREE OF DEFECTS OR MALFUNCTIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, WE SHALL NOT BE SUBJECT TO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS OF THE PLATFORM FROM WHATEVER CAUSE OR FOR ANY DEFECTS, MALFUNCTIONS, OR FAILURE OF THE PRODUCTS, OR FOR ANY DELAYS IN SHIPPING OR DAMAGE DURING SHIPMENT, AND YOU AGREE THAT YOU USE THE CONTENT, THE PRODUCTS AND THE PLATFORM AT YOUR OWN RISK.
WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT THE PRODUCTS ARE MANUFACTURED, SUPPLIED, AND SHIPPED BY THIRD PARTY SELLERS, AND NOT BY PACKAGD, AND THAT PACKAGED DOES NOT MAKE ANY WARRANTIES, AND SHALL NOT HAVE ANY LIABILITY, WITH RESPECT TO THE PRODUCTS. OTHER THAN AS EXPRESSLY PROVIDED HEREIN, ANY ISSUES THAT YOU MAY HAVE WITH ANY PRODUCT MUST BE ADDRESSED BETWEEN YOU AND THE APPLICABLE THIRD PARTY SELLER, WITHOUT ANY INVOLVEMENT BY PACKAGD.
WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS, WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR (I) ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO ACCESS AND USE THE WEBSITE OR THE CONTENT REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) WE SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, NOT ATTRIBUTABLE TO PERSONAL INJURIES, THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITE IN EXCESS ONE HUNDRED DOLLARS ($100). NO COMMON-LAW CAUSE OF ACTION ARISING UNDER TORT, CONTRACT, OR WARRANTY RELATED TO THE WEBSITE OR OTHERWISE ARISING UNDER THIS AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES; THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS LISTED ON THE PLATFORM. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE PLATFORM AT ANY TIME WITHOUT NOTICE.
You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assigns harmless from and against any claims, actions, or demands, together with all related damages, fees, costs, expenses and other losses (including, without limitation, reasonable legal and accounting fees), arising or resulting from your breach of this Agreement or your misuse of the Content, the Platform, or any Product. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right, at your expense, to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
The Platform is based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access or use the Platform or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Platform, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform at any time without prior notice or liability.
Packagd respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
2750 Sand Hill Road
If you believe that your work has been copied on the Platform in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Platform where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
The following terms apply when you download the Apps from Apple’s Apps Store. These terms are in addition to all other terms contained in the Agreement.
In the event of a dispute arising under or relating to this Agreement, the Content, or the Platform (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court in San Mateo County, California may enforce the arbitrator’s award. The arbitration shall be administered by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”). Such disputes will be resolved by the arbitrator as determined under the JAMS Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in San Mateo County, California. The parties may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. In addition, we may litigate in court to seek injunctive relief.
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The following provisions will survive any expiration or termination of this Agreement: “Intellectual Property,” “Registered User Content; Licenses,” “Communications with Us,” “No Warranties; Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 2018 Packagd Corp. All rights reserved.