INTRODUCTION
These Terms of Use (the “Terms” or “this Agreement”), and any policies incorporated by reference, including but not limited to the Polka Dot Sky Software Privacy Policy, are a legal agreement between you and Polka Dot Sky Software, Inc. (“Polka Dot Sky Software”, “we”, “our”, or “us”) governing your access to and use of the Polka Dot Sky Software website polkadotskysoftware.com (the "Site"), any Polka Dot Sky Software mobile applications (the “Apps”), and any other technology platform owned or operated by Polka Dot Sky Software (collectively, the “Platform”) and the services we agree to provide to you in connection with the Site, the Apps and the Platform (the “Services”).
If you are accessing the Site or the Apps using the Service on behalf of a third party that has entered into a separate agreement with Polka Dot Sky Software in connection with the Services (“Services Agreement”), your use of the App, the Site and Services will also be subject to the terms and conditions of the Services Agreement.
PLEASE BE ADVISED THAT THESE TERMS OF USE CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED (SEE DISCLAIMERS (SECTION 10), INDEMNITY (SECTION 13) AND LIMITATION OF LIABILITY (SECTION 14) PROVISIONS BELOW). THESE TERMS ALSO CONTAIN AN ELECTION TO ARBITRATE, WHICH WILL, UPON ELECTION BY YOU OR US, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (SEE DISPUTE RESOLUTION AND ARBITRATION AGREEMENT, SECTION 15.3). UNLESS YOU OPT OUT, IN THE EVENT OF AN ELECTION BY POLKA DOT SKY SOFTWARE TO ARBITRATE YOUR CLAIMS: (1) DIPUTES BETWEEN YOU AND POLKA DOT SKY SOFTWARE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF ON AN INDIVIDUAL BASIS AND YOU WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
BY ACCESSING THE SITE, THE APPS OR USING ANY OF THE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS AND THE CODE OF CONDUCT. YOU UNDERSTAND THAT BY ACCESSING OR USING THE SITE, THE APPS OR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE LEGALLY BOUND BY AND COMPLY WITH THESE TERMS OF USE AND THE CODE OF CONDUCT. IF YOU DO NOT OR CANNOT AGREE WITH ANY PART OF THESE TERMS OF USE AND THE CODE OF CONDUCT YOU MAY NOT USE THE SITE, THE APPS OR ANY SERVICES PROVIDED ON OR THROUGH THE SITE.
1. Privacy.
Polka Dot Sky Software respects the privacy of its users. Polka Dot Sky Software collects, uses and discloses information about you in accordance with the Polka Dot Sky Software Privacy Policy found at polkadotskysoftware.com/privacy/ (“Privacy Policy”). You and your family's privacy is very important to Polka Dot Sky Software. We do not share your information except under certain circumstances as outlined in the Privacy Policy. You understand and agree that, notwithstanding any measures taken to prevent unauthorized disclosure, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to confidential information. Accordingly, Polka Dot Sky Software cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.2. Registration.
You may access certain online features of the Services by creating a personal profile on the Site or the Apps (your “Account”).You may log into your Account using a unique username and password. You are responsible for safeguarding your password and you agree not to disclose your password to any third party. You are solely responsible for any actions taken under your username. You agree that the information that you provide to Polka Dot Sky Software about yourself upon registration of your Account, and at all other times, (“Customer Data”) will be true, accurate, current and complete, and you further agree that you will maintain and promptly update the Customer Data to ensure that it remains true, accurate, current and complete.
YOU MAY NOT IMPERSONATE ANY OTHER PERSON OR USE A USERNAME OR PASSWORD THAT YOU ARE NOT AUTHORIZED TO USE. OTHER THAN ANY MINOR CHILD OF YOURS FOR WHOM YOU HAVE LEGAL AUTHORITY TO ACT, YOU MAY NOT SIGN UP ANY OTHER INDIVIDUAL ON YOUR PERSONAL PROFILE.
Polka Dot Sky Software reserves the right to require you to change your password for any reason at any time. If you become aware of any unauthorized use of your Account, you agree to notify Polka Dot Sky Software immediately at privacy@pdspsoftware.com.3. Your Content and Derivative Works.
In connection with your access to, or use of, the Site, the Apps or the Services, you may have the opportunity to upload to the Site or the Apps certain information, reviews, or other materials (“Pre-Existing Content”). As between you and Company, you remain the owner of all Pre-Existing Content that you make available in connection with the Services. You unconditionally grant to Polka Dot Sky Software a non-exclusive perpetual royalty-free license to use your Pre-Existing Content on the Site or the Apps or otherwise (the “License”). You represent and warrant to Polka Dot Sky Software that you have all rights necessary to provide the license and make the Pre-Existing Content available on the Site and the Apps and that you are the owner of the Pre-Existing Content. You grant Polka Dot Sky Software full authority to develop Derivative Works using the Site and the Apps and Services based on the Pre-Existing Content, whether made by Polka Dot Sky Software staff or by others, including you, using the Site, the Apps and Services. You acknowledge and agree that all Derivative Works developed using the Site, the Apps and Services shall belong solely to Polka Dot Sky Software and you shall have a non-exclusive license to use the Derivative Works through the Site, the Apps and Services. For the purposes of these Terms, “Derivative Works” shall mean: (i) for material subject to copyright, registered or unregistered design protection, any work which is based on Pre-Existing Content, such as revision, modification, improvement, upgrades, translation, abridgment, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted using the Site, the Apps and Services; and (ii) for material subject to trade secret protection, any new material, information or data relating to and derived from the Pre-Existing Content using the Site, the Apps and Services, including new material which may be protected by copyright, patent or other proprietary right, and, with respect to each of the above, the preparation and/or use of which, in the absence of this Agreement or other authorization from the owner, would constitute infringement under applicable law. Notwithstanding anything in the foregoing, to the extent you have a separate Agreement with Polka Dot Sky Software governing your use of the Site, the Apps and Services, in the event of any conflict between such Agreement and these Terms, the Agreement shall govern.4. Review of Content and Materials.
We may review your conduct and content for compliance with these Terms and our Code of Conduct. However, we have no obligation to do so. We aren't responsible for your compliance with these Terms or the Code of Conduct, or any other party’s compliance with these Terms or the Code of Conduct.5. Third Party Software and Linking.
5. Although we may make software, hyperlinks, and other products of third-party companies available to you, your use of such products is subject to the respective terms and conditions imposed by the third party owning, manufacturing or distributing such products, and the agreement for your use will be between you and such third party. Polka Dot Sky Software makes no warranty with regard to the products or websites of any other entity. Polka Dot Sky Software has no control over the content or availability of any third-party software or website. In particular, (a) Polka Dot Sky Software makes no warranty that any third-party software you download or web site you visit will be free of any contaminating or destructive code, such as viruses, worms or Trojan horses and (b) it is your responsibility to become familiar with any web site's privacy and other policies and terms of service, and to contact that site's webmaster or site administrator with any concerns.6. App Store Usage Rules.
6. With respect to the Service accessed through or downloaded from the Apple App Store or Google Play Store (each an “App Store” and references to the App Store include the corporate entity and its subsidiaries making the App Store available to you), you agree to comply with all applicable third-party terms of the App Store (the “Usage Rules”) when using any of the Apps. To the extent these Terms provide for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an“App Store-Sourced Application”), you will only use the App Store-Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.7. Accessing and Downloading an App Store-Sourced Application.
The following applies to any App Store-Sourced Application:
- 7.1 You acknowledge and agree that (i) these Terms are concluded between you and Polka Dot Sky Software only, and not Apple, and (ii) Polka Dot Sky Software, not Apple, is solely responsible for the App Store-Sourced Application and content thereof. Your use of the App Store-Sourced Application must comply with the App Store Terms of Service.
- 7.2 You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Application.
- 7.3 In the event of any failure of the App Store-Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-Sourced Application to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Application. As between Polka Dot Sky Software and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Polka Dot Sky Software.
- 7.4 You and Polka Dot Sky Software acknowledge that, as between Polka Dot Sky Software and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store-Sourced Application or your possession and use of the App Store-Sourced Application, including, but not limited to: (i) product liability claims, (ii) any claim that the App Store-Sourced Application fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
- 7.5 You and Polka Dot Sky Software acknowledge that, in the event of any third-party claim that the App Store-Sourced Application or your possession and use of that App Store-Sourced Application infringes that third party’s intellectual property rights, as between Polka Dot Sky Software and Apple, Polka Dot Sky Software, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- 7.6 You and Polka Dot Sky Software acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as related to your license of the App Store-Sourced Application, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store-Sourced Application against you as a third-party beneficiary thereof.
- 7.7 Without limiting any other terms of these Terms, you must comply with all applicable third-party terms of agreement when using the App Store-Sourced Application.
8. Suspension and Termination.
Polka Dot Sky Software reserves the right to suspend, modify, or terminate your access to and use of the Site, the Apps and Services, at any time, without notice. Further, you agree that Polka Dot Sky Software shall not be liable to you or any third party for any termination, modification, or suspension of your access to the Site, the Apps or Services.9. Availability.
Polka Dot Sky Software uses reasonable efforts to ensure that the online features of the Service is available 24 hours a day, 7 days a week. However, there will be occasions when the Service will be interrupted for maintenance, upgrades, and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of Polka Dot Sky Software. Polka Dot Sky Software will use reasonable commercial efforts to minimize such disruption where it is within the reasonable control of Polka Dot Sky Software. You agree that Polka Dot Sky Software shall not be liable to you for any unavailability, modification, suspension, or discontinuance of the Service.10. Disclaimers.
- 10.1 THE SERVICES AVAILABLE THROUGH THE SITE AND THE APPS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. POLKA DOT SKY SOFTWARE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE, THE APPS OR SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- 10.2 POLKA DOT SKY SOFTWARE DOES NOT GUARANTEE THAT THE SITE, THE APPS, THE SERVICES AND SOFTWARE WILL BE SECURE, UNINTERRUPTED AND OPERATE WITHOUT ERRORS OR THAT THE SITE, THE APPS, THE SERVICES AND SOFTWARE ARE FREE OF COMPUTER VIRUSES OR OTHER MALWARE. YOU AGREE THAT POLKA DOT SKY SOFTWARE WILL NOT BE RESPONSIBLE FOR ANY ECONOMIC COSTS RELATING TO YOUR USE OF THE PLATFORM, THE SERVICES OR SOFTWARE.
- 10.3 POLKA DOT SKY SOFTWARE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE, THE APPS AND THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE SITE, THE APPS THE SERVICES AND/OR OTHER CONTENT ON THE PLATFORM. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
- 10.4 POLKA DOT SKY SOFTWARE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND POLKA DOT SKY SOFTWARE'S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. POLKA DOT SKY SOFTWARE IS NOT RESPONSIBLE FOR ANY DELAYS OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
11. Proprietary and Privacy Protection for Other Users’ Content on the Site and the Apps.
Polka Dot Sky Software hereby notifies you that all the information, content, image files, software and materials on the Site and the Apps may be protected by U.S. and international copyright and other intellectual property laws and by other applicable laws, including privacy laws. You may not copy or distribute such material without the written consent of Polka Dot Sky Software.12. Copyright Infringement.
- 12.1 Claims of Copyright Infringement. Polka Dot Sky Software has registered an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act of 1998 ("DMCA") and avails itself of the protections under the DMCA. Polka Dot Sky Software reserves the right to remove any content that allegedly infringes another person’s copyright. In appropriate circumstances, Polka Dot Sky Software will terminate the accounts of users who infringe copyright. Notices to Polka Dot Sky Software regarding any alleged copyright infringement should be directed to Polka Dot Sky Software via email at:
Service Provider: Polka Dot Sky Software Inc.
Designated Agent: Polka Dot Sky Software Inc.
Mailing Address: 8442 Bells Ridge Terrace, Rockville, MD 20854
E-mail:
privacy@pdspsoftware.com
- 12.2 Notice of Infringement. To be effective, the notification must be a written communication that includes the following:
- (a) A physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- (b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- (c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- (d) Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted;
- (e) A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- (f) A statement that the information in the notification is accurate, and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- 12.3 Takedown Notices. We may give you notice that we have removed or disabled access to certain material (which may include your content) by means of a general notice on the Service, electronic mail to your email address in our records, or by written communication sent by first-class mail to your physical address in our records.
13. Indemnity.
You agree to indemnify, and hold Polka Dot Sky Software, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney's fees and costs, arising out of or in any way connected with (a) your access to or use of the Site, the Apps or Services; (b) your violation of these Terms; (c) your violation of any third party right, including without limitation any intellectual property right or any publicity, confidentiality, property or privacy right; (d) any claim that your use of the Site, the Apps or Services caused damage to a third party, or (e) any incorrect or fraudulent statements or information you provide in connection with the Services.14. Limitations on Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR ANY LIABILITY FOR POLKA DOT SKY SOFTWARE’S FRAUD, FRAUDULENT MISREPRESENTATION, OR GROSS NEGLIGENCE, IN NO EVENT WILL POLKA DOT SKY SOFTWARE, ITS OFFICERS, DIRECTORS, EMPLOYEES AGENTS, AFFILIATES, SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, REGARDLESS OF LEGAL THEORY.
THIS LIMITATION APPLIES REGARDLESS OF WHETHER OR NOT POLKA DOT SKY SOFTWARE OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES AGENTS, AFFILIATES, SUPPLIERS OR DISTRIBUTORS HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
POLKA DOT SKY SOFTWARE, ITS OFFICERS, DIRECTORS, EMPLOYEES AGENTS, AFFILIATES, SUPPLIERS AND DISTRIBUTORS WILL NOT BE LIABLE TO YOU FOR ANY REASON IF YOU KNOWINGLY ALLOW SOMEONE TO CREATE A PROFILE FOR YOU ON THEIR ACCOUNT.
ADDITIONALLY, POLKA DOT SKY SOFTWARE, ITS OFFICERS, DIRECTORS, EMPLOYEES AGENTS, AFFILIATES, SUPPLIERS AND DISTRIBUTORS WILL NOT BE LIABLE FOR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES FOR MORE THAN THE GREATER OF TWENTY DOLLARS ($20) OR THE AMOUNTS PAID BY YOU TO POLKA DOT SKY SOFTWARE FOR THE PAST TWELVE (12) MONTHS OF THE SERVICES IN QUESTION.15. General.
CODE OF CONDUCT
This Code of Conduct is a part of the Terms of Use governing your access to, and use of, the Services provided by Polka Dot Sky Software. Capitalized terms used but not disclosed in this Code of Conduct have the meaning provided in the Terms of Use.
You agree not to misuse the Services or help or encourage any other party to misuse the Services. For example, and without limitation, you may not:
- • interfere, disrupt or attempt to gain unauthorized access to other accounts on the Site, the Apps or any other computer network;
- • breach or otherwise circumvent any security or authentication measures;
- • circumvent storage space limits;
- • create user accounts by automated means or under fraudulent or false pretenses;
- • create or transmit unsolicited electronic communications such as spam to users or promote any products or services;
- • sell the Services unless specifically authorized to do so;
- • harass, threaten or intentionally embarrass or cause harm or distress to another person or group;
- • distribute, upload, or otherwise make available any Content or other materials that: (a) are defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) are bigoted, hateful, or racially or otherwise offensive; (c) are illegal or encourage or advocate illegal activity; (d) infringe or violate the rights of any party (e) are violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (f) harm or can reasonably be expected to harm any person or entity;
- • collect and publish any information about any of our users;
- • adapt, modify or reverse engineer any portion of the Services, the Site or the Apps;
- • use any spider, robot, retrieval application, or any other device to retrieve any portion of the Site or the Apps;
- • disseminate, store or transmit viruses, worms, Trojan horses or other malicious code or program;
- • encourage conduct in connection with the Services that would constitute a criminal or civil offense;
- • violate any applicable federal, state, local or international law or regulation;
- • exploit any person;
- • invade the privacy of any person, including but not limited to submitting personally identifying or otherwise private information about a person without their consent;
- • submit false or misleading information to Polka Dot Sky Software or other users;
- • engage in any other activity deemed by Polka Dot Sky Software to be in conflict with the spirit of the Terms, the Privacy Policy, the Notice of Privacy Rights or this Code of Conduct; or
- • attempt to do any of the foregoing or encourage or enable any third party to do any of the foregoing.