Terms and Conditions

Terms and Conditions: Pogoapp Alpha

01 November 2012

1.1 Introduction and definitions

1.1.1 These terms and conditions (the "Terms") set out the rules which apply to your use of the Pogoapp Alpha services (the "Services"). "Our", "we", "us" or "Pogoapp" means Pogoapp Limited, a company registered in Delaware, USA (Company Number 5230561 ). You should read the Terms carefully as your use of the Services confirms your agreement to all of these terms, conditions, and notices. . If you do not agree to the Terms please do not use these Services.

1.1.2 The Services are always evolving and the form and nature of the Services may change from time to time without prior notice to you. We may stop (permanently or temporarily) providing the Services (or any features within the Service) to you or to users generally and may not be able to let you know before we do. We also retain the right to create limits on use and storage at our discretion at any time without letting you know before we do. Your only recourse if you don’t like changes like these will be to stop using the Services.

1.1.3 We explain in the headings what each clause covers. These headings are for guidance only and are not legally binding. When we say "including", we mean "including without limitation".

1.1.4 The following have particular meanings in the these terms and conditions:

"Content" information, documents, text, software, music, sound, photographs, graphics, video, messages and other materials of any kind and in any form;
"Exceptional Circumstances" where we consider that:
1. you have breached the contract;
2. it is necessary to protect us or our other customers or the public and/or to minimize our exposure to breach of Regulation or the risk of civil or criminal proceedings and /or to respond to claims of violation of third party rights; or
3. your account has become the target of denial of service, hacking or other malicious activities.
"Personal Data" as defined in the Data Protection Act 1998
"Regulation" all applicable laws, statutes, regulations, standards or codes of conduct, whether or not compulsory
"Services" any services which we supply to you
"Software" any Software which we supply or make available to you in connection with the Services
"Your Content" means Content which you (a) run on the Services, (b) cause to interface with the Services, or (c) upload to the Services; or otherwise transfer, process, use or store in connection with the Services.

1.2 Changes to the terms and conditions

1.2.1 We may need to change the terms and conditions. If so, we will post notice on our website for a reasonable period before the change takes effect. Please check our site constantly. If you continue to use our Services after the effective date of the revised terms and conditions, you will be bound by them.

1.3 The Private Alpha Services

1.3.1 You understand and acknowledge that the Services are provided as an Alpha service, meaning that it is experimental in nature and is provided “AS IS” for the purpose of providing Pogoapp with feedback on the quality and usability of the Services. The Services may contain errors or inaccuracies that could cause failures, corruption or loss of data from your pogoapp account. YOU EXPRESSLY ACKNOWLEDGE AND CONSENT THAT BY TAKING PART IN THE SERVICE YOUR CONTENT STORED IN YOUR #POGOAPP ACCOUNT COULD FORESEEABLY BE COMPROMISED AND YOU CONFIRM THAT YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO, LOSS OR ACCIDENTAL PUBLICATION OF ANY INFORMATION OR DATA.

As part of using the Service, Pogoapp requests that you provide feedback, as and when given the opportunity by Pogoapp, on the quality and usability of the Service. You agree that Pogoapp will be free to use any feedback you provide for any reasonable business purpose.

1.3.2 For the avoidance of doubt, we do not promise:

that the Services will be uninterrupted, secure or error-free; or
that any Content generated, stored, transmitted or used via or in connection with the Services will be complete, accurate, secure, up to date, received or delivered correctly or at all; or
that particular results will be achieved or that any results will be accurate or reliable.

1.3.3 You acknowledge that we may have to suspend the Services for repair, maintenance or improvement. If so, we will restore them as quickly as is reasonably possible.

1.3.4 We may change or discontinue any part of the Services at any time.

1.4 Support

1.4.1 You acknowledge that Pogoapp is not obligated to provide any maintenance, technical or other support for the Service.

We will use reasonable endeavours to respond to support requests and to rectify specified faults or problems but do not guarantee that response times or rectification will be achieved.

1.4.2 We shall not in any event be obliged to supply support:

in respect of faults or problems directly or indirectly arising from:
1. incorrect use of the Services;
2. products or services not supplied by us; or
3. any cause external to the Services;
where you are using anything other than the most recent version of, any relevant software; or
where you or any third party not authorized by us has modified the relevant software or attempted to resolve the problem.

1.4.3 Any support which we agree to supply in addition to that covered by agreement between us shall be charged at our then current standard rates and such fees shall be payable within 7 days of invoice.

1.5 Your obligations and promises

1.5.1 You promise that you have power and authority to enter into this agreement.

1.5.2 You promise that you are at least of the legal age to form a binding contract with us.

1.5.3 You must comply with the current technical documentation applicable to the Services (including the applicable developer guides) as posted and updated from time to time on our website. In addition, if you create technology that works with a Service, you must comply with the current technical documentation applicable to that Service (including the applicable developer guides) as posted and updated from time to time on our website. You must comply with our reasonable instructions, requests and guidelines concerning the Services, including on our website.

1.5.4 You will provide information or other materials related to Your Content (including copies of any client-side applications) as reasonably requested by us to verify your compliance with the Agreement. We may monitor the external interfaces (e.g., ports) of Your Content to verify your compliance with the Agreement. You will not block or interfere with our monitoring, but you may use encryption technology or firewalls to help keep Your Content confidential. You will reasonably cooperate with us to identify the source of any problem with the Services that we reasonably believe may be attributable to Your Content.

1.5.5 You promise that all information including contact and payment information (eg email and postal addresses, credit card numbers) which you provide in connection with the Services is accurate, complete and not misleading and that you will update it so that it remains so.

1.5.6 You must comply with our Acceptable Use Policy as outlined in our General Terms and Conditions (located at pogodan.com/terms_and_conditions ) and bring it to the attention of your authorised users. You acknowledge that this policy may change from time to time and that it is your responsibility to check it regularly.

1.5.7 You acknowledge that there is a risk that Your Content may be irretrievably damaged or lost if there is a fault or on suspension or termination. It is your responsibility to make appropriate back-ups of all of Your Content that you wish to save.

1.5.8 In the case of third party goods or services which we supply, you undertake to comply with any third party licenses or end user agreements which we bring to your attention.

1.5.9 You promise that you have sufficient technical knowledge to use and configure our Services.

1.5.10 You bear sole legal and other responsibility for the development, content, operation, maintenance, and use of Your Content. We do not, and are not obliged to, check Your Content (without prejudice to our rights to remove and take other steps in relation to Your Content).

1.5.11 You promise to us that you or your licensors own all right, title, and interest in and to Your Content and that you have all rights in Your Content necessary to grant the rights contemplated by this agreement.

1.5.12 You must observe the limitations on bandwidth and disk usage specified when you ordered. If such limits are exceeded, we are entitled to suspend or terminate some or all of the relevant Services.

1.6 Security

1.6.1 You promise:

to keep any login details confidential (and you acknowledge that we may change these at any time for good reason);
if requested, to use your password or security phrase when giving instructions (and we are authorised to comply with instructions containing your password or security phrase);
to take reasonable steps in respect of matters in your control to minimize any risk of security breaches in connection with the Services;
to notify us immediately of any actual or suspected security breaches in connection with the Services; and
to comply with our reasonable security checks.

1.6.2 You acknowledge that you are responsible for all persons who use your password or other log-in details to access the Services, whether authorised or not, unless we are at fault.

1.6.3 You are responsible for taking your own steps to maintain appropriate security of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving Your Content.

1.6.4 We may change or discontinue the Services at any time.

1.7 Content

1.7.1 We may access, copy, preserve, disclose, remove, suspend or delete any Content:

in the event of Exceptional Circumstances concerning that Content;
if we are required to do so by Regulation or competent authority; or
it is otherwise permitted under this agreement.

1.7.2 If we remove, suspend or delete your Content, you must not attempt to re-publish or re-send it using our Services.

1.8 Personal Data

1.8.1 If we process any Personal Data on your behalf, we promise that:

we shall do so only in accordance with this agreement or your written instructions, and
we will at all times have appropriate technical and organizational measures in place to protect all such Personal Data against unauthorised or unlawful processing, accidental loss, destruction or damage and that, having regard to the state of technological development and the cost of implementing any measures, the measures shall ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and to the nature of the data to be protected.

1.9 Intellectual property rights

1.9.1 We or our suppliers retain ownership of all intellectual property rights in any material (including our Content and Software) relating to the development or supply of the Services and to our website. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use such material solely in accordance with this agreement. You may not otherwise retrieve, display, modify, copy, print, sell, download, hire or reverse engineer (unless and to the extent permitted by applicable law) or use such material without our specific prior written consent. You may not transfer any of our Software outside the Services.

1.9.2 As between you and us, you or your licensors own all right, title, and interest in and to Your Content. Except as provided in this clause, we obtain no rights under this Agreement from you or your licensors to Your Content, including any related intellectual property rights. You consent to our use of Your Content to provide the Services. We may disclose Your Content to provide the Services or to comply with any request of a governmental or regulatory body (including subpoenas or court orders).

1.9.3 All licenses granted to you in this agreement are conditional on your continued compliance this agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this agreement.

1.10 Use of our website

1.10.1 Any Content which we ourselves make available on our website is intended for very general guidance but we cannot guarantee that it is accurate or up to date. Before acting on such information, you must make your own appropriate enquiries including as to its accuracy and suitability for your purposes and take appropriate professional or other advice. You rely on such information at your own risk.

1.10.2 Our website may link to third party websites which may be of interest to you. We do not recommend or endorse those sites or the products or services which they offer nor are we legally responsible for them as they are outside our reasonable control. You use such third party sites at your own risk.

1.11 Liability and indemnity

1.11.1 Nothing in this agreement in any way limits or excludes our liability for negligence causing death or personal injury or for fraudulent misrepresentation or for anything which may not legally be excluded or limited.

1.11.2 You must give us a reasonable opportunity to remedy any matter for which we are potentially liable before you incur any costs remedying the matter yourself.

1.11.3 We are not responsible for any loss or damage which results from your failure to comply with this agreement.

1.11.4 If you are a consumer (ie not acting in the course of a business):

we shall not be liable for any loss or damage caused by us or our employees or agents in circumstances where:
1. there is no breach of a legal duty of care owed to you by us or by any of our employees or agents;
2. such loss or damage is not a reasonably foreseeable result of any such breach;
3. such loss or damage is caused by you, for example by not complying with this agreement; or
4. such loss or damage relates to a business; and
you will liable for any loss or damage we suffer arising from your breach of this agreement or misuse of our Services.

1.11.5 If you are a business:

our aggregate liability of any kind (including our own negligence) with respect to our Service is limited to £100;
in no event (including our own negligence) will we be liable for any:
1. economic losses (including, without limit, loss of revenues, profits, contracts, business or anticipated savings);
2. loss of goodwill or reputation;
3. special, indirect or consequential losses; or
4. damage to or loss of Your Content
even if we have been advised of the possibility of such losses;
neither we nor any of our affiliates or suppliers will be responsible for: (a) your inability to use the services, including as a result of any (i) termination or suspension of this agreement or your use of or access to the Services, (ii) our discontinuation of any or all of the Services, or, (iii) any unanticipated or unscheduled downtime of all or a portion of the Services for any reason, including as a result of power outages, system failures or other interruptions; (b) the cost of procurement of substitute goods or services; (c) any investments, expenditures, or commitments by you in connection with this agreement or your use of or access to the Services; or (d) any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of Your Content;
to the extent allowed by law, we exclude all conditions, terms, representations and warranties, whether imposed by statute or by law or otherwise, that are not expressly stated in this agreement including, without limit, the implied warranties of satisfactory quality and fitness for a particular purpose; and
you will indemnify us against all claims and liabilities directly or indirectly related to Your Content, your use of the Services or breach of this agreement.

1.11.6 If we or our affiliates or suppliers are obligated to respond to a third party subpoena or other compulsory legal order or process, you will reimburse us for reasonable attorneys' fees, as well as our employees' and contractors' time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.

1.11.7 We have no liability for any third party goods or services.

1.12 Suspension / termination

1.12.1 We may suspend some or all of the Services in the event of Exceptional Circumstances or if we are required to do so by Regulation or competent authority or it is otherwise permitted under this agreement and we may decline to reinstate suspended Services unless we have received any assurances from you which (acting reasonably) we consider satisfactory.

1.12.2 You or we may terminate this agreement at any time upon giving notice in writing to the other.

1.12.3 The consequences of termination of this agreement for any reason are:

we will immediately stop supplying, and will terminate access to, the relevant Services;
we are entitled to irretrievably delete Your Content within 14 days of termination;
all licences granted by us terminate; and
accrued rights and liabilities will be unaffected.

1.12.4 The clauses in this agreement which are expressed or intended to survive the termination of this Agreement shall survive.

1.13 Confidentiality

1.13.1 We both agree that during the period of this agreement and for five years thereafter we will not use for any purpose apart from this agreement, or disclose, any Confidential Data received from the other party. "Confidential Data" means Content identified as, or which clearly is intended to be, confidential.

1.13.2 This clause does not apply to Content which:

enters the public domain other than through breach of this clause;
is or becomes independently known to the receiving party free from any confidentiality restriction;
is required to be disclosed by Regulation or competent authority;
is reasonably disclosed to employees, suppliers or others for the proper performance of the agreement;
is reasonably disclosed to professional advisers; or
which we are otherwise permitted to disclose in accordance with this agreement.

1.13.3 You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this agreement.

1.14 Notices

1.14.1 We may send any notices in accordance with the most recent contact information which you have provided to us. After the termination of this agreement we will only send you notices if legally obliged to do so, or if you expressly provide your consent to further communication (for example by signing up for our Services again)

1.14.2 Any notice required by this agreement to be given by any party in writing may be given by hand or sent (by special delivery within the UK or by international signed for post outside the UK) to another party at its registered office or such other address as that party may notify to the other party for this purpose from time to time or by fax (provided a transmission slip is retained), or by email (provided that the email has not been returned).

1.15 General

1.15.1 This agreement (and any incorporated documents) represents the entire agreement of the parties relating to its subject matter.

1.15.2 If you are a business, you agree that agreement (and any documents incorporated herein) constitutes the entire agreement between us with respect to its subject matter and supercedes any previous communications or agreements between us. We both acknowledge that there have been no misrepresentations and that neither of us has relied on any pre-contractual statements. Liability for misrepresentation (excluding fraudulent misrepresentation) relating to the terms of this agreement is excluded.

1.15.3 If any part of this agreement is deemed void or ineffective for any reason, the offending words shall be deemed deleted and the remainder shall continue in full force.

1.15.4 We may assign (ie transfer) all or part of our rights or duties under this agreement. As this agreement is personal to you, you may not assign any of your rights or duties under it without our prior written consent.

1.15.5 Neither party shall be liable for failure to perform or delay in performing any obligation (excluding payment) under this agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to failure of any communications, telecommunications or computer system.

1.15.6 We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.

1.15.7 No variation or amendment to this agreement is effective unless agreed in writing and signed by our authorised representative.

1.15.8 The failure to exercise or delay in exercising a right or remedy under this agreement shall not constitute a waiver of the right or remedy.

1.15.9 Nothing in this agreement shall be construed as creating a partnership or joint venture of any kind between us.

1.15.10 A person who is not a party to this agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement except insofar as expressly stated otherwise.

1.16 English law and jurisdiction

1.16.1 This agreement is governed by English law and and any disputes will be decided only by the courts of the United Kingdom.