Terms of Service

Welcome, and thank you for your interest in the mobile application Panion and the websites www.getpanion.com and www.panion.io. Panion (“us” or “we”) and our services are made available through the mobile application and tools (collectively, the “App”) and the website (the "Website" or the “Site”) together with the App, the service(s) (“Service(s)”). Unless otherwise specified, all references to the Service or Services include the services available through the Panion App or Website, as well as any other software that Panion provides that allows you to access the Services. The term “you” refers to the user of the Service. The following Terms of Service are a legally binding contract between you and Panion regarding your use of the Service. Panion is owned and operated by Panion, Inc, a Delaware corporation.

 

Please read the following Terms of Service ("Terms") carefully before accessing or using the Service. Each time you access or use the Service, you, or if you are acting on behalf of a third party or your employer, such third party or employer, agree to be bound by these Terms whether or not you register with us. If you do not agree to be bound by all of these Terms, you may not access or use the Service. Panion may change this Agreement at any time by posting an updated Terms of Service on this site. If any amendment to these Terms is unacceptable to you, you shall cease using this App or the Site. If you continue using the App or the Site, you will be conclusively deemed to have accepted the changes. 

 

In addition, certain areas of the Service may be subject to additional Terms of Service that will be available for your review. By using such areas, or any part thereof, you are expressly indicating that you have read and agree to be bound by the additional Terms of Service applicable to such areas. In the event that any of the additional Terms of Service governing such areas conflict with these Terms, the additional terms will control.

 

 

PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER PROVISIONS IN THE DISPUTE RESOLUTION SECTION OF THESE TERMS. IT AFFECTS HOW DISPUTES ARE RESOLVED.

 

1.    Description of Service

a.       Panion is a mobile application that connects users of our Service based on common interests by allowing them to search for specific keywords linked to other users' profiles. The Service includes (i) Panion systems, procedures, processes and technologies, and (ii) any hardware, software, applications, data, reports, and other content made available by or on behalf of Panion.

b.       The Service does not include any software application or service that is provided by you or a third party, which you use in connection with the Service.

c.        Any modifications and new features added to the Service are also subject to this Agreement.

d.       Panion reserves the right to modify or discontinue the Service or any feature or functionality thereof at any time without notice to you. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to Panion.

2.    Eligibility for Our Service

By using our Service, you represent that you are at least 18 years of age. Persons who are at least 13 years of age but under the age of 18 may only use our Service with legal parental or guardian consent.  Accordingly, you agree that you are at least 18 years of age or older or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, representations and warranties set forth in the Terms.

3.    Your Access and Use of our Services

a.       Your right to access and use our Service is personal to you and is not transferable by you to any other person or entity. Access to our Service may not be available in all locations. You are entitled to access and use our Service only for lawful purposes and pursuant to the terms and conditions of this Agreement and our Privacy Policy. Any action by you that, in our sole discretion: (i) violates the terms and conditions of this Agreement and/or the Privacy Policy; (ii) restricts, inhibits or prevents any access, use or enjoyment of our Service; or (iii) through the use of our Service, defames, abuses, harasses, offends or threatens others, shall not be permitted and may result in your loss of the right to access and use our Service.

b.       The rights granted to you in these Terms are subject to the following restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service; (ii) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (iii) you shall not access the Service in order to build a similar or competitive Service; and (iv) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Service shall be subject to these Terms.

c.        Furthermore, you agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, programs, algorithms or methodologies to access, acquire, copy or monitor our Services or any portion of our Service or for any other purpose, without our prior written permission.  Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from our Service without our prior written permission and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of our Service or any activities conducted on our Service; (iv) bypass any robot exclusion headers or other measures we may use to prevent or restrict access to our Service, or (v) interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature.

d.       Except as expressly permitted in this Agreement, you shall not collect or harvest any personally identifiable information, including account names, from our Service. 

e.       Our Service may now, or in the future, have "publicly accessible areas" that allow users to post User Content that will be accessible by the public or the general user population. As a user of the Service, you acknowledge and affirmatively agree that in the course of using the Service you may be exposed to User Content that might be offensive, harmful, inaccurate or otherwise inappropriate. You further agree that Panion shall not, under any circumstances, be liable in any way for any User Content.

f.         You understand that Panion may issue upgraded versions of any mobile App and you consent to receiving automatic upgrades on your mobile device.  You also acknowledge and agree that standard carrier data charges may apply to your use of the Service including, without limitation, text messages.

g.       You shall not use any communication systems provided on our Service including, without limitation, email for any commercial or solicitation purposes. You shall not solicit for commercial purposes any users of our Service without our prior written permission.

h.       You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Service.

4.        Accounts and Registration

a.           To access some features of the Service you may be required to register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your name, date of birth, email address, physical address, phone number, newsletter preference or other personal information). Some of this information may be of a confidential nature and may include personal identifying information (all "Your Information"). 

b.           If you provide Your Information to us, then you agree to provide true, current, complete and accurate information and not to misrepresent your identity.  You also agree to keep Your Information current and to update it with any changes. 

c.            Our collection, use and disclosure of Your Information is governed by this Agreement and our Privacy Policy which you may access here (include link to Privacy Policy page here).

5.        Account Management

a.           Keep Your Password Secure. If you have been issued an account by Panion in connection with your use of the Service, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Panion, are responsible for any activity occurring in your account, whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify Panion immediately.

b.           Keep Your Details Accurate. Panion may send notices to the email address or text messages to the mobile phone registered with your account. You must keep your email address, mobile phone number and, when applicable, your contact details and payment details associated with your account current and accurate.

c.            We reserve the right to modify, suspend, or terminate the Service, or any user account and access to the Service for any reason, without notice, at any time, and without liability to you.

d.           You can cancel your account at anytime. Upon termination or cancellation, all licenses and other rights granted to you in these Terms will immediately cease.

e.           We reserve the right to refuse to issue an account or permit access to the Service to anyone for any reason at any time.

 

6.        Free Account

Panion offers a version of its Service for free, as well as several premium paid Subscription Plans.  The terms and prices of these Subscription Plans change from time to time and the most current terms and prices may be found on our Website (insert link to subscription pricing page or FAQ).

7.        Subscription Trials

a.           Panion may, from time to time, offer the paid Subscription Plan Service on a trial basis. If you are currently on a free trial, you may cancel your account, free of charge, at any time until your trial period expires. (The day of creation constitutes the first day of the trial.) Upon expiration of the trial period, your account will automatically renew as a paid Subscription Plan Service.

b.           The last day of the trial signifies the due date of the first payment. If payment is not received by Panion on the due date, your account will be frozen and inaccessible, and all shared links will be turned off until all outstanding payments have been processed by Panion. You retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information. If you fail to do so within 90 days, your account will be deactivated.

c.            Unless we notify you otherwise, if you are participating in any trial period offer, you must cancel the Service by the end of the trial period to avoid incurring charges. If you do not cancel your Service and we have told you the Service will convert to a paid subscription service at the end of the trial period, you authorize us to charge you for the Service and no credits or refunds will be available. You may, however, cancel your Subscription Plan before the next billing in accordance with the terms of this Agreement.

d.           If you are a paid subscription (non-trial) user, you will not be issued a refund for your most recent (or any previous) billing period.

8.        Subscription Period

You may elect one of the following subscription plans and billing options:

a.           A monthly subscription plan (“Monthly Subscription Plan”). The subscription period for the Monthly Subscription Plan is constituted by a period of 30 days and will automatically renew unless you cancel your Monthly Subscription Plan in accordance with these Terms at least three (3) business days prior to the renewal date. You will be billed monthly for the Monthly Subscription Plan on or about the same day each month until such time that you cancel your Monthly Subscription Plan.

b.           An annual subscription plan (“Annual Subscription Plan”). The subscription period for the Annual Subscription Plan is constituted by a period of one year (365 days) and will automatically renew each year on the anniversary of your Annual Subscription Plan unless you cancel your Annual Subscription Plan in accordance with these Terms at least ten (10) days prior to your renewal date. You will be billed annually for the Annual Subscription Plan on or about the same day each year until such time that you cancel your Annual Subscription Plan. For the avoidance of doubt, please note, you will not be permitted to cancel or downgrade the Panion Service you have selected until the anniversary of your Annual Subscription Plan. There will be no refunds for Annual Subscription Plan payments. Please be aware that you are committing to a one (1) year period if you select the Annual Subscription Plan. If you are not certain about your commitment, we recommend that you choose the Monthly Subscription Plan.

c.            If you select the Monthly Subscription Plan, you can switch to the Annual Subscription Plan at any time. If you select the Annual Subscription Plan, you may not change to the Monthly Subscription Plan until the end of the one-year term of your Annual Subscription Plan.

9.        Suspension and Termination of Services

a.           By You. If you terminate a Subscription Plan (monthly or annual) in the middle of a billing cycle, you will not receive a refund for any period of time you did not use in that billing cycle unless you are terminating these Terms for any of the following reasons: (a) we have materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing; or (b) a refund is required by law.

b.           By Panion. Panion may terminate your Monthly Subscription Plan at the end of a billing cycle by providing at least 30 days prior written notice to you. Panion may terminate your Annual Subscription Plan for any reason by providing at least 30 days written notice to you and will provide a pro rata refund for any period of time you did not use in that billing cycle. Panion may suspend performance or terminate your Subscription for any of the following reasons: (a) you have materially breached these Terms and failed to cure that breach within 30 days after Panion has so notified you in writing; (b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (c) you fail to pay fees for 30 days past the due date. Additionally, Panion may limit or suspend the Service to you if you fail to comply with these Terms, or if you use the Service in a way that incurs legal liability to us or disrupts others’ use of the Service. Panion may also suspend the Service to you if we are investigating suspected misconduct on your part. Panion will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. Panion has no obligation to retain your User Content upon termination of the applicable Service.

10.  Privacy and Your Personal Information

For information about Panion data protection practices and privacy policies, please read our Privacy Policy where you have accessed these Terms of Service or on our website (include link to Privacy Policy page here). This policy explains how we treat your personal information, and protect your privacy when you use the Service. You agree to the use of your data in accordance with the Panion Privacy Policy.

11.  Information Accuracy

a.           We make no representation as to the completeness, accuracy, or currency of any information on the Service or other content available on this Site or App.

b.           We attempt to ensure that information on this Service is complete, accurate and current, however, despite our best efforts, the information on our Service may occasionally be inaccurate, incomplete or out of date, and Panion disclaims any responsibility or liability for such information. By using the Service, you agree to accept such risks.

12.  Proprietary Rights

a.           As between Panion and you, Panion or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with these Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by Panion.

13.  Intellectual Property Rights

a.           Our names, graphics, videos, logos, page headers, button icons, scripts, and service names are our trademarks or trade dress in the United States and/or other countries (collectively, the "Proprietary Marks"), and are owned by Panion. You may not use the Proprietary Marks without our prior written permission.

b.           We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Service. Any third-party names, trademarks, and service marks are property of their respective owners.

c.            The information, descriptions, advice, data, software and content viewable on, contained in, or downloadable from our Service (collectively, "Our Content"), including, without limitation, all text, graphics, pictures, photographs, images, videos, line art, icons and renditions, are copyrighted by, or otherwise licensed to us or Our Content suppliers.

d.           We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of Our Content (the "Collective Work").

e.           All software used on or within our Service is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using Our Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to Our Content, the Collective Work, or the Software.

f.             You are solely responsible for any damages resulting from your infringement of our, or any third-party’s, intellectual property rights regarding the Trademarks, Our Content, the Collective Work, the Software and/or any other harm incurred by us or our affiliates as a direct or indirect result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.

14.  Use of Our Content

a.           We grant you a limited license to access, print, download or otherwise make personal use of Our Content and the Collective Work for your non-commercial personal use; provided, however, that you shall not delete any proprietary notices or materials with respect to the foregoing.

b.           You may not modify Our Content or the Collective Work or utilize them for any commercial purpose or any other public display, performance, sale, or rental; you may not decompile, reverse engineer, or disassemble Our Content and the Collective Work, or transfer Our Content or the Collective Work to another person or entity.

15.    User Content Rights and Related Responsibilities; License

a.           "User Content" means, without limitation, any messages, texts, reviews, digital files, images, photos, personal profile (including a photo of yourself), artwork, videos, audio, comments, feedback, suggestions, reviews and documents, or other content you upload, transmit or otherwise make available to Panion and its users via the Service. You represent and warrant that you own or otherwise control the rights to your User Content and agree to indemnify Panion and its affiliates for all claims arising from or in connection with any claims to any rights in your User Content or any damages arising from your User Content.

b.           By submitting User Content on or through the Service, you grant Panion a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such User Content without attribution, and without the requirement of any permission from or payment to you or to any other person or entity, in any manner including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes, and in any and all media now known or hereafter devised, and to prepare derivative works of, or incorporate into other works, such User Content.

c.            In order for us to provide the Service to you, we require that you grant us certain rights with respect to User Content, including the ability to transmit, manipulate, process, store and copy User Content in order to provide our Service. Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you.

d.           You agree that any User Content you submit to our Service may be viewed by other users, any person visiting or participating in the Service and by the public in general.

e.           Panion expressly disclaims any liability for the loss or damage to any User Content or any losses or damages you incur as a result of the loss or damage of any User Content. It is your responsibility to backup any User Content to prevent its loss.

f.             You are solely responsible for User Content, including, without limitation, reviews, comments and feedback, and any damages suffered by Panion resulting therefrom.

g.           Panion may remove or return any User Content at any time for any reason whatsoever, or for no reason at all. We are not responsible for the authenticity, accuracy, completeness, appropriateness, or legality of User Content.

h.           You represent and warrant that all information that you submit is authentic, accurate and truthful and that you will promptly update any information provided by you that subsequently becomes inaccurate, misleading or false.

i.              User Content is not considered to be confidential. You agree not to submit User Content in which you have any expectation of privacy.

j.              Panion has no control over User Content once posted, and it is possible that visitors to the App or Site may copy User Content and repost it elsewhere.

k.           You agree not to post as part of the Service any offensive, inaccurate, incomplete, abusive, obscene, profane, threatening, intimidating, harassing, racially offensive, or illegal material. The following includes, without limitation, examples of the things you may not do:

§  Impersonate any person or entity.

§  Stalk, harass, defame, abuse, bully, threaten or otherwise violate the legal rights of others.

§  Advocate for, harass, or intimidate another person.

§  Promote information that is false or misleading.

§  Promote illegal activities or conduct that is defamatory, libelous or otherwise objectionable.

§  Promote violence, racism, bigotry, hatred or physical harm of any kind against any group or individual.

§  Transmit anything that exploits children or minors or that depicts cruelty to animals.

§  Solicit personal information from anyone under the age of 18.

§  Use the service in an illegal manner or to commit an illegal act.

§  Transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware.

§  Transmit any content that contains video, audio, or images of another person without his or her permission or that of their legal guardian.

§  Promote material that exploits people in a sexual, pornographic or violent manner.

§  Provide instructional information about illegal activities.

§  Infringe upon someone else's trademark, copyright or other intellectual property or other rights.

§  Promote commercial activities including without limitation sales, contests, sweepstakes, barter, advertising, business offers and competitor softwares and services.

16.  Monitoring Use Of Service, User Content, Communications

a.           Panion respects your privacy, however, you are responsible for your use of the Service and for any User Content you provide or communication you engage in, including compliance with applicable laws, rules, and regulations.

b.           While we have no obligation to monitor User Content or in-Service communications, and we are not responsible for monitoring the Service for inappropriate or illegal User Content, communication or conduct by users of our Service, we nevertheless have the right, in our sole discretion, to monitor, edit, refuse to post, or remove any User Content or communication.

c.            Panion may also, at our sole discretion, choose to monitor and/or record your interaction or your communications with other users of the Service or the Service (including without limitation messaging, chat text and voice communications) when you are using the Service, in order to prevent harm to other users, the public or to the Service.

d.           Panion will not take the measures provided in this section unless we deem it necessary to prevent harm or injury to other users, the public or Panion.

e.           Panion disclaims any responsibility and liability for an action taken by any user resulting from any communication using the Panion Service or from any User Content provided to, and posted on the Service.

f.             We do not endorse, support or approve any opinions expressed by users, including any User Content posted or any communications conducted between users using the Service. All User Content and communication is the sole responsibility of the person who originated such User Content or communication.

g.           Users may report any User Content, communication or actions of users that violate any of the terms of this Agreement by contacting us at support@panion.io.

17. Software

a.           If you receive software from us, its use is governed in one of two ways: If you're presented with license terms that you must accept in order to use the software, those terms apply; if no license is presented to you, these Terms apply. We reserve all other rights to the software.

b.           Any license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by Panion, in the manner permitted by these terms. You may not copy, modify, distribute, sell, or lease any part of our Service or included software, nor may you reverse engineer or attempt to extract the source code of that software.

c.            We may automatically check your version of the software. We may also automatically download to your device or computer new versions of the software.

d.           Any software is licensed, not sold. Unless we notify you otherwise, the software license ends when your Service ends. You must then promptly uninstall the software, or we may disable it. You may not work around any technical limitations in the software.

e.           The software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the software or Service without U.S. government permission to anyone on U.S. government exclusion lists. You represent and warrant that you're not on any of those lists or under the control of, or an agent for, anyone on those lists.

18.  Interruption of Service

a.           Your access and use of our Service may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of our Service or other actions that we, in our sole discretion, may elect to take.

b.           You agree that we will not be liable to you or to any third party for any interruption of the Service or any part thereof.

19.  Third Party Links, Services and Content

a.           The Service may contain features, services and functionalities linking you or providing you with access to third party services and content, websites, directories, servers, networks, systems, information, databases, applications, software, programs, products, services, and the Internet as a whole. Because we have no control over such sites and resources, we are not responsible for the availability of such external sites or resources and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. When you visit or use a third party’s website, you agree to read and consent to the third party’s Terms of Service and Privacy Policy and you release us from any liability.

b.           You acknowledge that we are not responsible for any third-party content or services and that we are not an agent of any third party. Nor are we a direct party in any such transaction with a third party. Any such activities, and any terms associated with such activities, are solely between you and the applicable third party. Should you have any problems resulting from your use of any third-party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our actions.

20.  Electronic Communications

a.           Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by electronic means including, without limitation, email, telephone, text, SMS, chatbot, or by posting notices on our Service.  When you use our Service, you consent to communicating with us electronically. 

b.           You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

c.            When you use our Services, you consent to communicating with us and with other users electronically including a chat service facilitated by the App or our third-party service providers technology.  While we respect your privacy, you consent to Panion's right to review such communication in the event of a dispute between you and another user, or to prevent harm or injury to another user or to Panion. 

21.  Electronic Transactions

a.           Your use of the Service includes the ability to enter into agreements, including these Terms, and to effect transactions electronically, including financial transactions and purchases. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by such agreements, financial transactions and purchases.

b.           Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this site, including purchases, financial transactions, notices of cancellation, policies, contracts, and applications.

c.            In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.

22.  Third Party Social Networking

If you access our Service through a third party social networking site or application including, but not limited to, Facebook, LinkedIn, or Twitter, you authorize Panion to access certain information about you that is made available through that third party social networking site and further authorize us to collect, store, retain and use, your information in accordance with our Privacy Policy.

23.  Mobile Application from a Third-Party App Store

The following applies to any App Store Sourced Application accessed through or downloaded from a Third-Party App Store:

a.           You acknowledge and agree that (i) the Terms are concluded between you and Panion only, and not the Third-Party App Store, and (ii) Panion, not the Third-Party App Store, 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.  

b.           You acknowledge that the Third-Party App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

c.            In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the Third-Party App Store, and the Third-Party App Store will refund the purchase price for the App Store Sourced Application to you, and to the maximum extent permitted by applicable law, the Third-Party App Store will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Panion and the Third-Party App Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Panion.

d.           You and Panion acknowledge that, as between Panion and the Third Party App Store, the Third Party App Store 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.

e.           You and Panion 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 Panion and the Third-Party App Store, Panion, not the Third-Party App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.

f.             You and Panion acknowledge and agree that the Third-Party App Store, and their subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, the Third Party App Store will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

g.           Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

24.  Security

Violating the security of our App, Site and Service is prohibited and may result in criminal and civil liability. Panion may investigate incidents involving such violations and may involve, and will cooperate with law, enforcement if a criminal violation is suspected. Security violations include, without limitation, unauthorized access to or use of data or systems including any attempt to probe, scan, or test the vulnerability of the Service or to breach security or authentication measures, unauthorized monitoring of data or traffic and interference with service to any user, host, or network.

25.  Copyright and Intellectual Property Policy

We respect the intellectual property rights of others. We reserve the right to remove any User Content on the Service which allegedly infringes upon another person's copyright, trademark or other intellectual property right, and/or terminate, discontinue, suspend and/or restrict the account or ability to visit and/or use the Service or remove, edit, or disable any User Content on the Service which allegedly infringes upon another person's intellectual property rights. We provide this policy pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act ("DMCA").

A valid complaint under the DMCA must provide the following information in writing:

a.           An electronic or physical signature of a person authorized to act on behalf of the copyright owner.

b.           Identification of the copyrighted work that you claim has been infringed.

c.            Identification of the material that is claimed to be infringing and where it is located on the Service.

d.           Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and email address.

e.           A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law.

f.             A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

FEDERAL LAW PROVIDES THAT IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEY’S FEES.

The above information must be submitted to Panion at: support@panion.io

26.  Disclaimers; No Warranties

a.            ALL PRODUCTS AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW. PANION AND ITS PARENTS, SUBSIDIARIES, PARTNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (COLLECTIVELY, THE “PANION PARTIES”), DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

b.           WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (I) THE SERVICES AND PRODUCTS WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (III) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM US WILL MEET YOUR EXPECTATIONS.

c.            THE SERVICE CAN INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. FURTHERMORE, THE INFORMATION OR SERVICES ON THIS SITE OR APP MAY BE OUT OF DATE. WE MAY MAKE CHANGES TO THE PRODUCTS, INFORMATION AND SERVICES ON THIS SITE OR APP, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY SERVICES OR PRODUCTS LISTED HEREIN AT ANY TIME WITHOUT NOTICE. HOWEVER, WE HAVE NO OBLIGATION TO DO SO.

d.           THE PANION PARTIES DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY PRODUCT DESCRIPTIONS OR OTHER CONTENT OFFERED AS PART OF THE SERVICE, ARE ACCURATE, RELIABLE, CURRENT OR COMPLETE.

e.           YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. IF YOU DOWNLOAD ANY CONTENT FROM THE SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT THROUGH THE SERVICE.

f.             WE RESERVE THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SERVICE OR ANY FEATURE OR PART THEREOF AT ANY TIME.

g.            THE PANION PARTIES ASSUME NO RESPONSIBILITY FOR THE DELETION, MISDELIVERY OR FAILURE TO STORE ANY CONTENT OR PERSONALIZATION SETTINGS.

h.           SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME PARTS OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

27.  Limitations of Liability

a.            IN NO EVENT SHALL WE BE RESPONSIBLE TO, OR LIABLE TO, YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR ACCESS AND USE OF OUR SERVICE; (II) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICE FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF OUR CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; OR (V) YOUR RELIANCE UPON OR USE OF OUR CONTENT OR THE COLLECTIVE WORK, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. 

b.           THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED IN THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICE.

c.            WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES.

d.           OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY USER IN THE PURCHASE GIVING RISE TO SUCH CLAIM.

e.           YOU AND PANION AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

f.             CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

28.  Interaction with Others

a.            YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE IDENTITY, SUITABILITY, AND INTERACTIONS WITH THE PEOPLE YOU CHOOSE TO ENGAGE WITH THROUGH THE SERVICE. YOU UNDERSTAND THAT WE CURRENTLY DO NOT CONDUCT ANY BACKGROUND CHECKS INCLUDING, BUT NOT LIMITED TO, CRIMINAL, FINANCIAL, SEX OFFENDER OR ANY OTHER BACKGROUND CHECKS OR SCREENINGS. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF THE PEOPLE YOU CHOOSE TO INTERACT WITH. WHILE NOT OBLIGATED TO DO SO, PANION RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO CONDUCT ANY CRIMINAL OR SEX OFFENDER BACKGROUND CHECKS OR OTHER SCREENINGS AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.

b.           YOU ASSUME ALL RISK WHEN USING THE SERVICE, INCLUDING, WITHOUT LIMITATION, ALL RISKS ASSOCIATED WITH ANY ONLINE OR OFFLINE PERSONAL INTERACTIONS WITH OTHERS.

c.            IN NO EVENT SHALL PANION, ITS EMPLOYEES, CONSULTANTS, EXECUTIVES OR OFFICERS BE LIABLE (DIRECTLY OR INDIRECTLY) FOR ANY LOSSES OR DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF A USER OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE INCLUDING, WITHOUT LIMITATION, THEFT, BODILY INJURY, EMOTIONAL DISTRESS, DEATH AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS WITH, CONTACT WITH OR PERSONAL INTERACTION WITH OTHER USERS.

d.           USERS SHOULD NOT PROVIDE THEIR FINANCIAL INFORMATION, INCLUDING, BUT NOT LIMITED TO, CREDIT CARD, BANK ACCOUNT, OR WIRE INFORMATION, OR OTHERWISE SEND MONEY TO OTHER USERS.

e.           PANION DOES NOT MAKE ANY GUARANTEE, EITHER EXPRESS OR IMPLIED, REGARDING YOUR COMPATIBILITY WITH USERS YOU MEET THROUGH THE SERVICE.

29.  Indemnity

a.           You agree that you will be personally responsible for your use of the Service and you agree to defend, indemnify and hold harmless Panion and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorney’s and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of or alleged use of the Service; (ii) your violation of these Terms of Service or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your infringement upon the property rights, intellectual property rights (copyrights and trademarks) or other rights of others; (iv) your violation of any third party right, including without limitation publicity, confidentiality, or privacy right; (v) any death, or serious physical or serious emotional harm, to you or any third party resulting from your use of the Services, or (vi) any disputes or issues between you and any third party.

b.           We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.

30.  Release

a.           By using the Service, you release, to the maximum extent allowed by law, Panion, its officers, directors, employees, affiliates, and agents from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of the Service, and any interaction with other users through the Service, including, without limitation, any death or serious emotional or serious physical harm.

b.           If you are a California resident, you waive California Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

31.  Our Remedies

a.           You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement. 

b.           For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of the Commonwealth of Massachusetts, or a United States District Court for the Commonwealth of Massachusetts, Middlesex County. You consent to the jurisdiction of such court and waive any objection to the venue of any such action or proceeding in such court. 

32.  Dispute Resolution

THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICE. EACH TIME YOU ACCESS OR USE THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE MANDATORY ARBITRATION PROVISION AND THE CLASS ACTION WAIVER, YOU MAY NOT ACCESS OR USE THE SERVICE.

 

For any dispute, you have with Panion, you agree first to contact us at support@panion.io and to attempt to resolve the dispute with us informally. If Panion has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy as follows:

a.           You and Panion agree that any claim or dispute at law or equity between us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to the Services will be resolved in accordance with the provisions set forth in this Legal Disputes section. Please read this section carefully. It affects your rights and will have a substantial impact on how claims are resolved between you and Panion.

b.           Applicable Law. You agree that the laws of the Commonwealth of Massachusetts, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us, except as otherwise stated in this Agreement.

c.            Agreement to Arbitrate. You and Panion both agree that any and all disputes or claims between you and Panion relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to our Service, or any products or services delivered, sold, offered, or purchased through our Service shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify.

d.           Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND PANION AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND PANION AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OUR OTHER USERS.

e.           Arbitration Procedures. Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement as a court would. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of this Agreement including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or this Agreement is void or voidable. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The arbitrator will decide the substance of all claims in accordance with the laws of the Commonwealth of Massachusetts, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

f.             Judicial Forum for Legal Disputes. Unless you and Panion agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the Commonwealth of Massachusetts, Middlesex County. You and Panion agree to submit to the personal jurisdiction of the courts located within Massachusetts for the purpose of litigating all such claims or disputes. You also agree that: (i) our Service shall be deemed solely based in the Commonwealth of Massachusetts; and (ii) our Service shall be deemed passive services that do not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the Commonwealth of Massachusetts.

33.  Law Enforcement

a.           Panion is committed to cooperating with law enforcement while respecting each individual’s right to privacy. If Panion receives a request for user account information from a government agency investigating criminal activity, we will review the request to be certain that it satisfies all legal requirements before releasing information to the requesting agency.

b.           Furthermore, under 18 U.S.C. §§ 2702(b)(8) and 2702(c)(4) (Voluntary Disclosure Of Customer Communications or Records), Panion may disclose user account information to law enforcement, without a subpoena, court order, or search warrant, in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone. Panion will not release more information than it prudently believes is necessary to prevent harm in an emergency situation.

34.  Amendments to this Agreement

We reserve the right to update, amend and/or change this Agreement at any time in our sole discretion and without notice. Updates to this Agreement will be posted here. Amendments will take effect immediately upon us posting the updated Agreement on our website and App.  You are encouraged to revisit this Agreement from time to time in order to review any changes that have been made. The date on which this Agreement was last updated will be noted immediately below this Agreement.  Your continued access and use of our Service following the posting of any such changes shall automatically be deemed your acceptance of all changes.

 

Miscellaneous

35.  Severability

If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.

36.  No Waiver

Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.

37.  Survival

All covenants, agreements, representations and warranties made in this Agreement, as may be amended by us, from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.

38.  Statutory Rights; Notice to California Residents

If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing, currently at: 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone, currently at (800) 952-5210 in order to resolve a complaint regarding our Site or to receive further information regarding use of our Site.

39.  Entire Understanding

This Agreement and the Privacy Policy represent the entire understanding and agreement between you and Panion regarding the subject matter of the same and supersede all other previous agreements, understandings and/or representations regarding the same.

If you have questions, comments, concerns or feedback regarding this Agreement or our Services, please contact us at support@panion.io.

 

Last updated: August 1, 2017