Updated September 26, 2015
Because this TOS contains legal obligations, please read this TOS carefully. Please print a copy of this Agreement for your records. It is important that you read carefully and understand the terms and conditions of this TOS. By accessing or using any part of the Services, you agree to be bound by this TOS. If you do not agree to this TOS, you will not have the right to access or use any component of the Services.
You represent that: (a) if you are entering into this TOS on behalf of your employer, or any other entity or person, you are duly authorized by your employer, such other entity or such person to enter into this TOS which will be binding upon both you individually and such employer, other entity or person (and “you” as used in this TOS shall refer to both), (b) you are of the legal age to form a binding contract with us, and © you are not a person barred from subscribing, using or accessing the Services under the laws of the United States or other applicable jurisdiction.
1. Acceptance of TOS; Changes to TOS. The Services are made available by Poll Everywhere subject to this TOS. We reserve the right to update or make changes to this TOS from time to time in our sole discretion, and we may notify you of changes by any reasonable means, including without limitation, by posting the revised version of this TSO on the Site, which changes will become effective immediately upon posting on the Site. You can determine when this TOS was last revised by referring to the “Updated” legend at the top of this TOS. Please return to this TOS to ensure familiarity with the most current version of this TOS. Your continued access or use of any components of the Service after any changes to this TOS have been posted shall constitute your agreement and consent to such changes.
2. Services. The App is intended to be used with slide presentation software (such as PowerPoint, Keynote, Google Slides) and allow you to embed any web content within any slide by inserting the URL for such web content within the slide. When the slide is being viewed, the App communicates with our systems to find an optimized version of the web content (such as content which does not include advertising) and delivers the optimized version, if any, to your slide where it is then streamed. The functionality of the App will not work if Internet access to our systems is delayed, blocked or encumbered. Updates to the App will be sent and installed automatically on your phone, tablet, wireless device or computer and you will not have the ability to elect not to install updates.
4. Modification, Termination, Suspension and Discontinuance of the Services. We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to modify, terminate, suspend or discontinue the Services (including the functionality of the App), with or without notice to you. You agree that (a) Poll Everywhere shall not be liable to you or to any third party for any modification, termination, suspension or discontinuance of the Services, in whole or in part, and (b) your continued use of the Services after any changes to the Services have been implemented will be deemed your acceptance of such changes. Without limiting the generality of the foregoing, you specifically acknowledge that Poll Everywhere has the right to terminate the functionality of the App for any reason or no reason at all.
5. License to Use the App and Site. Subject your compliance with this TOS, Poll Everywhere hereby grants to you a limited, personal, non-exclusive, non-assignable, non-sublicenseable license to download, install and operate a single copy of the App on your device, in object code format, only for your personal, non-commercial use. Poll Everywhere reserves all rights, including all intellectual property rights, not expressly granted to you under this TOS.
6. Code of Conduct. In accessing and using the Site, App and other components of the Services, you agree to abide by the following rules, restrictions and limitations:
You will not distribute, modify, adapt, port, translate, or create any derivative works based on the Site, App or any other component of the Services; nor sell, rent, lease, sublicense, pledge, assign, or otherwise transfer your rights to use the Site, App or any other component of the Services, in whole or in part, to any third party.
You will not decompile, disassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary, and only after you have notified us in advance of such intended activities), or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in, the Site, App or any other component of the Services.
You will not disseminate or transmit viruses, worms, Trojan horses, keyboard loggers, time bombs, spyware, adware, cancelbots, passive collection mechanisms, or any other malicious or invasive code or program or upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear gifts, pixels, web bugs, cookies or other similar devices.
You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures of the Services.
You will not use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services or any networks or security systems of Poll Everywhere or its service providers, or otherwise interfere with other users’ use of the Services.
You will not circumvent the navigational structure or presentation of the Services or interfere with or circumvent any security feature or any feature that restricts or enforces limitations on the use of, or access to, the Services;
You will not use any data mining software, robots, spiders or similar data gathering and extraction tools to retrieve, index, “scrape,” “data mine,” or in any way gather content or data from the Services or otherwise circumvent the navigational structure or presentation of the Services.
You will not remove, change or obscure any copyright, trademark notice, trademark, hyperlink or other proprietary rights notices contained within the Services.
You will not use of the Services to violate the security of any computer network.
You will not make any copies of the App.
7. Ownership. Poll Everywhere (and its licensors) shall own and retains all right, title and interest (including all intellectual property rights) in and to the Site, App and other components of the Services. The Services, and the underlying technology and software comprising the Services, are and shall remain the exclusive property of Poll Everywhere and its licensors and suppliers, and are protected by copyright, trademark, patent, and/or other proprietary rights and laws. All trademarks and service marks appearing within the Services not owned by Poll Everywhere are the property of their respective owners. The trade names, trademarks and service marks owned by Poll Everywhere, whether registered or unregistered, may not be used without our written consent or in any manner that is likely to cause confusion.
8. Disclaimers of Warranties; Limitation of Liability.
8.1. Disclaimers. THE SITE, APP AND OTHER COMPONENTS OF THE SERVICES ARE PROVIDED TO YOU “AS IS” AND YOUR USE THEREOF IS AT YOUR SOLE RISK. POLL EVERYWHERE DOES NOT WARRANT THAT: (A) THE SERVICES (OR THE RESULTS OBTAINED FROM THE USE THEREOF) WILL BE TIMELY, ERROR-FREE, SECURE OR UNINTERRUPTED; (B) THE SERVICES WILL MEET YOUR REQUIREMENTS; OR © ANY ERRORS OR MALFUNCTIONS IN THE SERVICES WILL BE CORRECTED. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, INTERRUPTIONS, DELAYS AND FAILURES OF THE SERVICES. POLL EVERYWHERE: (I) DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFATORY QUALITY, NONINFRINGEMENT, AND TITLE WITH RESPECT TO THE SERVICES, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND (II) SHALL NOT BE LIABLE IN THE EVENT OF ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR ANY PERSONAL INFORMATION TRANSMITTED THROUGH THE SERVICES, ANY INTERRUPTION, SUSPENSION OR CESSATION OF ACCESS TO THE SERVICES, ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED THROUGH THE SERVICES BY ANY THIRD PARTY, AND ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICES.
8.2. Limitation of Liability. POLL EVERYWHERE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR COST OF SUBSTITUTE PROCUREMENT, LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SERVICES OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, OR COST OF RECOVERY OR OTHER DAMAGES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, AND WITHOUT LIMITATION, POLL EVERYWHERE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE services. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE services IS TO STOP USING THE Services. UNDER NO CIRCUMSTANCES SHALL POLL EVERYWHERE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ANY CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OR OTHER NETWORK (including without limitation phone network or other telecommunications network) FAILURES OR “BROWNOUTS”, 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 NATURE, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING. NOTWITHSTANDING ANYTHING ELSE IN THIS TOS, POLL EVERYWHERE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS AND/OR THE SERVICES, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER THEORY, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO POLL EVERYWHERE DURING THE twelve (12) MONTH PERIOD pRECEDING THE DATE ON WHICH poll everywhere RECEIVES NOTICE OF A CLAIM FROM YOU.
8.3. Jurisdictional Limitations. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU
9. Term and Termination. This TOS is effective on the date you use or access any portion of the Services until it is terminated by you or Poll Everywhere. Poll Everywhere, in its sole discretion, may terminate this TOS and the Services (and any component thereof) or suspend any Service for any reason, with or without notice to you. You may terminate this TOS by ceasing to access or use the Site, App and/or other components of the Services. Upon any termination of this TOS, your right to access or use the Site, App and other components of the Services will immediately cease and terminate. You agree that Poll Everywhere shall not be liable to you or any third party for any termination of this TOS, whether by you or Poll Everywhere, and any termination or cancellation the Services. Upon any termination of this TOS, Sections 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, , 16, 17, 18 and 19 shall survive.
10. Governing Law; Dispute Resolution.
10.1. Governing Law. This TOS and all matters arising out of or relating to this TOS and/or the Services will be governed by the internal laws of the State of California, United States, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of Poll Everywhere and you. This TOS will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded.
10.2. Good Faith Efforts to Resolve Dispute; Venue. In the event that any dispute arises between you and Poll Everywhere relating in any way to the Services, which may include the interpretation, construction, coverage, scope, performance, non-performance, breach, termination, validity or enforceability of this TOS (“Dispute”), you and Poll Everywhere will make bona fide efforts to settle such Dispute amicably by good faith consultation and discussions. If you and Poll Everywhere are unable to resolve such Dispute after good faith consultation and discussions for thirty (30) days, such Dispute shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, in the State of California (except that either you or Poll Everywhere may seek injunctive relief in any court of competent jurisdiction), and the parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts.
11. Indemnity. You agree to defend, indemnify and hold harmless Poll Everywhere its employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers, from and against all claims, losses, costs and expenses (including attorneys fees) arising out of (a) your and any third party’s use of, or activities in connection with, the Site, App and any other component of the Services; or (b) any violation of this TOS by you.
12. Compliance with Applicable Law. In accessing and using the Services, you agree to comply with all applicable federal, state, local and international laws and regulations, including export and import laws, regulations, orders or other restrictions administered by the United States Commerce Department’s Bureau of Export Administration, the United States Department of Treasury’s Office of Foreign Assets Control or any other applicable government agency. You understand that use of the Services and transfer, posting and uploading of software, technology, and other technical data via the Services may be subject to the export and import laws of the United States and other countries.
13. Notice for California Residents. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Services, please send an e-mail to firstname.lastname@example.org. You may also contact us by calling us at (800) 617-3316 or writing to us at Poll Everywhere, 1550 Bryant Street, Suite 500, San Francisco, CA 94103. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail to: 1625 North Market Blvd., Suite N112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
15. Severability. If any provision of this TOS is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this TOS and will not affect the validity and enforceability of any remaining provision.
16. Notices. You authorize Poll Everywhere to send you notices and information regarding the Services via email to the most current email address, if any, we have in our systems for you. You agree that such notice will be deemed sufficient notice and you waive any rights to assert failure of notice. You agree that this Agreement and all notices provided to you may be sent in electronic form. You may send us notices regarding the Services at “Contact Us” below.
17. Assignment. You may not assign, transfer or sublicense any or all of your rights or obligations under this TOS without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this TOS, or relating to the Services, without restriction.
18. No Third Party Beneficiaries. Nothing in this TOS will be construed to confer upon any third party other than the parties hereto any third party beneficiary right of action whatsoever.
19. Captions and Headings. Any caption, heading or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
20. Contact Us. If you have any questions regarding the meaning of application of this TOS, please direct such questions to email@example.com. Please note that e-mail communications will not necessarily be secure; accordingly you should not include sensitive information in your e-mail correspondence with us.