Pick1™ – Terms of Sevice (“TOS”)
Last modified: July 15, 2014
This Pick1 service agreement (“Agreement”) is a legal document that explains your rights and obligations as a subscriber of the Pick1 services. Please read it carefully.
1. Registration and Activation
Pick1 is a service (“Service”) offered by Pragmatic Solutions, Inc. (“Pragmatic”). By installing Pick1 and registering and activating your account you become a subscriber of Pick1. As a Subscriber you may obtain access to certain services, and are deemed to have entered into a contract between You and Pragmatic as soon as you access Pick1 after accepting this Agreement.
When you register on Pick1 and activate your account ("Account"), you are solely responsible for all activity on your Account and for the security of your computer system. You may not reveal, share or otherwise allow others to use your password or Account. You agree that you are personally responsible for the use of your password and Account and for all of the communication and activity on Pick1 that results from use of your login credentials. You may not sell or charge others for the right to use your Account, nor is your Account transferable.
You are hereby granted and You accept a limited, non-exclusive license to Pick1 that may be terminated subject to the terms within this Agreement. Use of Pick1 is for personal use in accordance with this Agreement, and use of Pick1 is licensed, not sold. Your license confers no title or ownership in the software.
You are additionally granted a limited, terminable, non-exclusive license to reproduce and distribute an unlimited number of exact copies of the Pick1 software via download; provided that the following conditions are met:
You understand that for reasons that include, without limitation, system security, stability, and multiplayer interoperability, Pick1 may need to automatically update, pre-load, create new versions or otherwise enhance Pick1 and accordingly, the system requirements to use Pick1 may change over time. You understand that neither this Agreement nor the terms associated with a particular Subscription entitles you to future updates, new versions or other enhancements of Pick1.
You are not required to use new versions of Pick1, but You acknowledge that certain services may not operate properly without the current version of Pick1 running on your mobile device.
You are entitled to use Pick1 for your own use, but you are not entitled to: (i) sell, grant a security interest in or transfer reproductions of Pick1 to other parties in any way, nor to rent, lease or license Pick1 to others without the prior written consent of Pragmatic.
You may not use data produced via Pick1 for commercial purposes without the express written consent of Pragmatic.
Use of Pick1 may also grant you access to the Leverage software development kit (“SDK”). a. Restrictions You may only use the SDK in the manner to which it is intended, and may not copy, modify, decompile, reverse engineer or in any other way interfered in the proper use of the SDK. Failure to comply shall result in the revocation of license and may deem Pick1 inoperable. b. Commercial Use If you are interested in Leverage SDK for commercial purposes, please contact firstname.lastname@example.org.
All rights, title, and ownership to the intellectual property of Pick1 and any and all copies thereof are owned by Pragmatic Solutions, Inc. and/or its licensors. All rights reserved, except as expressly stated herein. Pick1 and Leverage are protected by the copyright laws of the United States, international copyright treaties and conventions and other laws. • The Pick1 name and logo are trademarks of Pick1, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Pick1.
6. Reporting Copyright and Other IP Violations
7. Authorized Providers
You may download Pick1 from authorized Pick1 Providers such as iTunes. In the event that Pick1 provides links to any of these Provider web sites, you are on notice that you may incur separate obligations unrelated to Pick1 and Pragmatic makes no representations or warranties either express or implied regarding any third party sites.
8. Free Subscriptions
In the event that You are offered a free subscription to Pick1 by Pragmatic, You would still be responsible for any and all service fees such as Internet connection fees, telephone charges or Licensing Fees associated with using Pick1 or its services.
9. Third Party Sites
Pragmatic may from time to time offer items (ie; apparel, virtual goods, books, etc…) other than software content and services for purchase via Pick1 ("Merchandise"). Pragmatic may offer Merchandise together with or separate from Subscriptions, but such Merchandise is incidental to Subscriptions and the purpose of Pick1. All offers to purchase Merchandise via Pick1 are made and accepted subject to the terms and conditions of this Agreement.
Prices are subject to change at any time without notice. Charges for shipping, handling and tax may not be included in displayed prices for Merchandise but will be displayed during the purchase process, although such displayed prices may not include all taxes, duties, and other fees that you may be obligated to pay to applicable government authorities. Shipping and handling charges displayed on Pick1 may or may not reflect the actual charges paid by Pragmatic.
You must pay all applicable sales and use taxes, value added taxes and other taxes levied on you by any taxing authority on any Merchandise purchase in any country where such transactions are otherwise subject to tax, regardless of the method of delivery. Any taxes owed by you (i) as a result of purchasing Merchandise or the payment of any fee, (ii) that are required or permitted to be collected from you by Pragmatic under applicable law, and (iii) that are based upon the amounts payable under this Agreement, must be remitted by you to Pragmatic. Failure on Pragmatic's part to invoice you for any such taxes does not relieve you of the liability to pay such taxes. You will promptly reimburse Pragmatic for all taxes or other charges imposed upon Pragmatic by any national, state or municipal government upon the sale, use, production, or transportation of Merchandise.
This is a shipment contract. All Merchandise will be shipped FOB Westlake Village, California, unless otherwise designated in connection with a particular order. If you are an international customer, you acknowledge that Merchandise will be shipped from the United States and that you are responsible for any applicable import duties, customs fees, and taxes. Pragmatic's liability as to delivery ceases, and title and risk of loss for the Merchandise will pass upon Pragmatic's delivery of the Merchandise to a transportation carrier at the designated shipping point. No items may be picked up from Pragmatic’s offices unless approved in advance, and You assume all responsibility for risk of loss or damage in that event.
The terms of this Section do not apply to European Union consumers. You will have a period of thirty (30) days after the date of receipt of any Merchandise to examine the Merchandise to confirm that it conforms to this Agreement and the offer for such Merchandise presented to you. If the Merchandise does not conform to this Agreement and the offer for such Merchandise presented to You, You may reject the Merchandise by returning, at your expense, the Merchandise to Pragmatic. Such Merchandise should contain a copy of the receipt or other proof of purchase, and Merchandise must be in a good merchantable condition. Pragmatic may replace or repair the Merchandise in a reasonable time, or may issue a credit to the credit card used to pay for the product an amount equal to the value of the Merchandise (as determined by Pragmatic in its reasonable discretion), or provide another remedy that Pragmatic determines in good faith is appropriate in the circumstances.
All claims whether based on contract, negligence, strict liability or otherwise are waived unless made in writing and received by Pragmatic within thirty (30) days after your receipt of the Merchandise.
You agree that you shall be personally responsible for the use of your account and for all of the communication and activity on Pick1. Your conduct and interaction with other subscribers should be guided by common sense and basic etiquette.
Pragmatic may terminate your account or a particular Subscription for any conduct or activity that Pragmatic believes is illegal, constitutes a cheat, or which otherwise negatively affects the enjoyment of Pick1 by other Subscribers. You acknowledge that Pragmatic is not required to provide you notice before terminating your Subscriptions(s) and/or account, but it may choose to do so.
THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF PICK1, THE SERVICES, AND MERCHANDISE REMAINS WITH YOU, THE USER. PRAGMATIC EXPRESSLY DISCLAIMS (I) ANY WARRANTY FOR PICK1, THE SERVICES, AND THE MERCHANDISE, AND (II) ANY COMMON LAW DUTIES WITH REGARD TO PICK1, THE SERVICES, AND MERCHANDISE, INCLUDING DUTIES OF LACK OF NEGLIGENCE AND LACK OF WORKMANLIKE EFFORT. PICK1, THE SERVICES, AND MERCHANDISE, AND ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, "WITH ALL FAULTS" AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ALSO, THERE IS NO WARRANTY OF TITLE, INTERFERENCE WITH YOUR ENJOYMENT, OR AUTHORITY IN CONNECTION WITH PICK1, THE SERVICES, AND MERCHANDISE OR INFORMATION AVAILABLE IN CONNECTION THEREWITH. THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
NEITHER PRAGMATIC, ITS LICENSORS, NOR THEIR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OR INABILITY TO USE PICK1, YOUR ACCOUNT, YOUR SUBSCRIPTIONS AND PICK1 INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL PRAGMATIC SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH PICK1, THE SERVICES, AND MERCHANDISE THAT YOU ACQUIRE VIA PICK1, ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH, OR THE DELAY OR INABILITY TO USE MERCHANDISE OR ANY INFORMATION, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF PRAGMATIC'S WARRANTY AND EVEN IF PRAGMATIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS.
IF YOU ARE A RESIDENT OF A EUROPEAN UNION COUNTRY, THE ABOVE PARAGRAPH MAY NOT APPLY TO YOU.
PRAGMATIC DOES NOT GUARANTEE CONTINUOUS, ERROR-FREE, VIRUS-FREE OR SECURE OPERATION AND ACCESS TO PICK1, THE SERVICES, YOUR ACCOUNT AND/OR YOUR SUBSCRIPTIONS(S).
13. Exclusive Remedies
You acknowledge and agree that your sole and exclusive remedy for any dispute with Pragmatic with regard to this Agreement is to discontinue the use of Pick1 and cancel your account. Because some jurisdictions do not allow for the exclusion or limitation of liability for consequential or incidental damages, such jurisdictions allow for liability to be limited to the full extent permitted by law.
You agree to defend, indemnify and hold harmless Pragmatic, its licensors and their affiliates from all liabilities, claims and expenses, including attorneys' fees, that arise from or in connection with breach of this Agreement.
15. Time Limitation on Claims
You agree that any claim you may have arising out of or related to your relationship with Pick1 must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
Pragmatic may in its sole discretion amend this Agreement at any time. You agree that Pragmatic may amend the terms of this Agreement, and your continued use of the services subject to this Agreement shall serve as acceptance. If You don't agree to the amendments or to any of the terms in this Agreement, your only remedy is to cancel your Account or a particular Subscription.
17. Term and Termination
Either party has the right to terminate or cancel your account or a particular Subscription at any time. You understand and agree that the cancellation of your account or a particular Subscription is your sole right and remedy with respect to any dispute with Pragmatic.
The term of this Agreement (the "Term") will be effective as of the date that you agree to the terms of this Agreement and begin using its services. The term shall continue until otherwise terminated in accordance with this Agreement.
You may cancel subject to the terms of this Agreement, but agree that Pragmatic has the right to collect fees, surcharges or costs incurred prior to the cancellation of your account or a particular Subscription. You are also responsible for any charges incurred to third-party vendors or content providers before your cancellation.
In the event that your account is terminated by Pragmatic, Pragmatic may, but is not obligated to, provide a prorated refund of any prepaid Subscription fees paid to Pragmatic.
If the Customer cancels their service within five (5) days of the original order, Pragmatic Solutions, Inc. shall refund the fee, minus a fifteen percent (15%) cancellation fee. If Customer cancels their service after five (5) days, there shall be no refund
In the case of a free Subscription, Pragmatic may terminate use of the service or License at any time.
The laws of the State of California in the United States shall govern this Agreement. The terms of this section may not apply to European Union consumers
19. Survival of Terms
Sections 1,2,3,4,5,6,7,8,9,10,11,12,13, 14, 15, 17 and 18 shall survive any expiration or termination of this Agreement. In the event that any provision of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this Agreement shall remain in full force and effect.
If you have any issues or complaints regarding this Terms of Service, please contact: Pragmatic Solutions, Inc., Privacy Officer, 32123 Lindero Canyon Road, Suite 216A, Westlake Village, CA 91361, Fax: (818) 865-8920 or e-mail us at email@example.com
21. Entire Agreement
This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. You agree that this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement.