Effective Date: 17 October, 2019
Please read these Terms of Service (“Terms”) carefully as they contain important information that relates to you.
We provide a service for authenticating your identity for the purposes of connecting you to employee HR systems, customer accounts and loyalty programs, making payments, obtaining physical entry in to structures and other activities (the “POPID Gateway”) as well as additional web-based and/or mobile software that we make available from time to time, including the Mobile Services (defined below) (collectively with the POPID Gateway, the “Service”).
These Terms constitute a legally binding agreement between you (“User” and “you”) and POPID, Inc, a Delaware company doing business as “POPID” (“POPID”, “we” and “us”)and by using the Service, clicking a button or checking a box marked “I Agree” or something similar, or otherwise manifesting your assent to these Terms, you acknowledge and agree that you have read, understood, and agree to be bound by these Terms. If you do not agree with these Terms, then you should immediately cease using the Service.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Registration of Account
Your use of the Service is subject to and conditional upon your successful registration of an account (“Account”) with POPID. You agree to ensure that at all times, the account has true, accurate, current and complete information about yourself. You must immediately notify POPID if any information is incorrect.
2. Age Restrictions.
Persons aged 12 years or under are prohibited from using our Service. If you are aged under 13 years, then you should immediately cease using the Service. Persons aged 13years to up to 18 years of age may use the Service solely subject to and conditional upon consent from a parent or legal guardian. We may request, and you must provide, verification of such consent from time to time at our discretion.
3. Member Account, Password and Security.
4. Use of the Service; Provision of Biometric Information.
The Service may be used by you for various purposes including, but not limited to, clocking in at the workplace, logging into loyalty programs, making payments, obtaining physical entry into buildings and other physical structures (including by checking personal body temperature to ensure health safety), and connecting to Third Party Services (defined below).
5. Third Parties.
The Service contains connections to employee management systems, websites, applications, loyalty programs, payment systems, entry systems, and similar platforms, as well as services provided by our third party service providers, such as NEC, Amazon, Dwolla, Plaid, and our credit card processing partners (collectively, the “Third Party Services”) that are provided or hosted by POPID’s merchant partners, service providers, and other third parties (collectively, the “ThirdParties”). You acknowledge and agree that: a) the Third Parties are solely and exclusively responsible for the Third Party Services and any content offered on or in connection therewith; b) your use of the Third PartyServices is subject to and conditional upon your acceptance of any terms, conditions or policies implemented by the applicable Third Parties, from time to time; c) under no circumstances shall we be liable in any way for any disconnections to, content provided by, or errors or omissions in, the ThirdParty Services; d) we will share your identity and personal information (including your Biometric Information) with such Third Parties solely in relation to your use of the Third PartyServices; and e) we reserve the right, in our sole and absolute discretion, to discontinue and / or remove any Third Party Services from the Service.
6. Mobile Services.
You acknowledge that the Service may be available via a mobile device (“MobileServices”), including the ability to upload content to, or browse and other wise access, the Service or certain features thereof. You further acknowledge and agree that: (a) to the extent you access the MobileServices, your service carrier’s standard charges, data rates and other fees may apply; (b) by using the Mobile Services, we, the Third Party and / or your mobile provider may communicate with you by automated SMS, MMS, text message or other electronic means to your mobile device and that information about your usage of the Mobile Services may be communicated to us; (c) in the event you change or deactivate your mobile telephone number, you must promptly update your Account;(d) you will only access the Mobile Services on a mobile device number legally assigned to you by a service carrier; (e) you will be sent SMS messages from time to time as part of our provision of theMobile Services and the frequency of the same depends on your use of the Service.If, at any time, you desire to opt-out from such messages, you should immediately contact us at [email protected]
To use any Mobile Services, you must have a mobile device that is compatible with the MobileServices. POPID does not warrant that the Mobile Services will be compatible with your mobile device. You may use mobile data in connection with the MobileServices and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. POPID hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Services for one POPID Account on one mobile device owned or leased solely by you, for your personal use. You acknowledge and agree that you may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Services, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or other wise transfer the Mobile Services to any third party or use the MobileServices to provide time sharing or similar services for any third party; (iii)make any copies of the Mobile Services; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the MobileServices, features that prevent or restrict use or copying of any content accessible through the Mobile Services, or features that enforce limitations on use of the Mobile Services; or (v) delete the copyright and other proprietary rights notices on the Mobile Services. You acknowledge that POPID may from time to time issue upgraded versions of the Mobile Services, and may automatically electronically upgrade the version of the Mobile Services that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the MobileServices is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Services or any copy thereof, and POPID or its third-party partners or suppliers retain all right, title, and interest in the MobileServices (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in theseTerms, is void. POPID reserves all rights not expressly granted under theseTerms. If the Mobile Services are being acquired on behalf of the United StatesGovernment, then the following provision applies. The Mobile Services will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S.Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The MobileServices originates in the United States, and are subject to United States export laws and regulations. The Mobile Services may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Services maybe subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the MobileServices and the Service. The following applies to any Mobile Services you acquire from the Apple App Store(“Apple-Sourced Software”). You acknowledge and agree that these Terms are solely between you and POPID, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to POPID as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to theApple-Sourced Software or your possession and/or use of the Apple-SourcedSoftware, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to POPID as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, POPID, 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 theseTerms. You and POPID acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
7. User Content.
You understand that all non-personal information, data, text, software, music, sound, photographs, graphics, video, messages or other content or materials (collectively, the “Content”) which you publicly post or privately transmit on any Service, is your sole responsibility. You warrant to us that this Content is: (a) your own; (b) lawful; (c) not infringing upon any third party’s intellectual property rights; and (d) provided in good faith. By posting the Content on the Service, you grant us and our affiliates a non-exclusive, worldwide, royalty free, fully paid, transferable, sub-licensable, perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify and other wise use your Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
8. No Commercial Use.
You acknowledge and agree that the Service is for your personal use and you agree that you will not, without our prior written consent, display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or transmit for any commercial purposes, all or any portion of the Service.
9. Service Content, Software and Trademarks.
You acknowledge that the Service and the technology and software underlying it, may contain content which is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws (collectively the “Proprietary Content”). You acknowledge and agree that the Proprietary Content is the sole property of us, our affiliates and our partners. You warrant to us that you will not, without our prior written consent, modify, transfer, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works or use for the benefit of any third party, the Proprietary Content. You further warrant to us that you will not engage in or contract with or direct any third party to engage in or use any data mining, robots, scraping or similar data gathering or extraction methods with respect to our Service. Any use of the Service, except as specifically authorized herein, is strictly prohibited.
10. User Feedback.
We welcome comments, suggestions, ideas and feedback (collectively, the “Feedback”)with respect to the Service and you agree that in providing the Feedback, we may use the Feedback for any purpose, commercial or otherwise, without acknowledgement or compensation to you, unless you expressly prohibit such use.
11. Copyright Complaints.
In the event you believe, in your reasonable discretion, that any Content infringes upon your rights under The Digital Millennium Copyright Act of 1998 (the “DMCA”),then you may send us written notice of such purported infringement to [email protected] and request that such Content be removed from the Service. The aforementioned notice must be provided in accordance with the provisions of the DMCA.
12. Disclaimer of Warranties.
WE PROVIDE NO WARRANTIES NOR REPRESENTATIONS IN RELATION TO THE SERVICE THE THIRD PARTY SERVICES OR ANY OTHER MATTER OUTLINED IN THESE TERMS. YOUR USE OF THE SERVICE AND THE THIRD PARTY SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. WE EXPRESSLY DISCLAIM ALL WARRANTIES OR REPRESENTATIONS, OF ANY KIND AND WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE OR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
FURTHER,WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES, AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN IMPLIED WARRANTIES, SO THE EXCLUSIONS ABOVE MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13. Indemnity & Release.
You hereby irrevocably agree to indemnify, release, defend and hold harmless us and our affiliates, officers, employees and directors, from all damages, losses, demands, actions, suits and similar claims (“Claims”), of whatsoever nature and whether known or unknown, arising out of or in relation to: a) a breach of these Terms; b) your use of the Service; c) your use of the Third Party Services; d) the termination or modification of your Account by us. If you are a California resident, you waive your rights under Section 1542 of the California Civil Code which stipulates that “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party..”If you are a resident of another jurisdiction, you waive any comparable statute, doctrine or law.
We reserve the right to implement a loyalty or rewards program, at any time and in our absolute discretion.
You acknowledge and agree that we may, in our sole and absolute discretion, suspend or terminate your Account or use of the Service, for any reason and without notice. Upon termination of your Account or the Service, your Account and all of your related rewards, if any, will be deleted and you must immediately cease using the Service and any other services or products provided by us.
16. Limitation of Liabilities.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE FOR ANY INDIRECT,INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR DAMAGES FOR LOSS OF PROFITS, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATAOR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES),WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR IN RELATION TO: A) YOUR USE OF THE SERVICE; B) YOUR USE OF THE THIRD PARTY SERVICES; C) THE TERMINATION OR MODIFICATION OF YOUR ACCOUNT, THE SERVICE OR THE MOBILE SERVICES; D) ANY INCORRECT INFORMATION PROVIDED BY YOU ONYOUR ACCOUNT; E) ANY OTHER MATTER OUTLINED OR CONTEMPLATED IN THESE TERMS.IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS EXCEED ONE THOUSAND UNITED STATES DOLLARS (US$1,000.00). FURTHER YOU AGREE THAT ANY CLAIM, REGARDLESS OF ANY STATUE OR LAW TO THE CONTRARY, ARISING OUT OF OR BROUGHT IN RELATION TO THE SERVICE, MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM ARISES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
17. User Disputes.
You acknowledge and agree to use the Service in common with the other users of the Service(“Users”) and such use must be legal, honest and in good faith. You are solely and exclusively responsible for your interactions with the Users.
18. Governing Law, Arbitration, and Class Action/Jury Trial Waiver.
You agree that: (i) the Service shall be deemed solely based in California; and(ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to these Terms shall be governed by the Federal Arbitration Act (9U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Los Angeles County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm.You agree that Los Angeles County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from POPID. For any dispute with POPID, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that POPID has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy(excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof, by binding arbitration by JAMS, under theOptional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Los Angeles County, California, unless you and POPID agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing POPID from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUSTBE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT,YOU AND POPID ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
19. Modifications to Our Services.
We reserve the right, in our sole and absolute discretion, to modify or discontinue, either temporarily or permanently, the Service (or any part thereof) without notice to you.
We reserve the right, in our sole and absolute discretion, to amend or modify these Terms (“Amended Terms”) from time to time. We will use reasonable efforts to provide you with notice of the Amended Terms via a manner reasonably designed to provide you such notice. The Amended Terms will go into effect thirty (30) days from the date that we notify Users of theAmended Terms. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Regardless of whether you actually receive such notice, your continued use of the Service after the effective date of such Amended Terms constitutes your acceptance of the AmendedTerms. If you do not agree to theAmended Terms, then you should immediately cease using the Service and delete your Account.
21. Entire Agreement.
These Terms constitute the entire agreement between you and us with respect to the Service and may only be amended by us, in accordance with clause 20. These Terms supersede any prior agreements between you and use with respect to the Service.
The failure by us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is found by a court of competent jurisdiction to be invalid, then that provision is deemed severed from these Terms and you and us will remain bound by the remainder of the Terms.
24. Electronic Copies.
An electronic copy of these Terms shall be binding on you and us and will be admissible in judicial and administrative proceedings based upon or relating to these Terms.
25. Notices.Any notice required to be given under these Terms may be sent to us at [email protected] and to you, at the email address provided by you during the registration process of your Account. If you are a California resident, in accordance with Cal. Civ.Code §1789.3, you may report complaints to the Complaint Assistance Unit of theDivision of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.