Date of Last Revision: July 20, 2020
1.1 Pointgenie Products
These Terms & Conditions (these “Terms”) contain the terms and conditions on which we supply content, products or services listed on www.PointGenie.com (the “Website”), through our applications (the “Apps”) or via other delivery methods to you (the Website and such content, products, services and the Apps are collectively referred to herein as the “Product” or “Products”, which may be updated from time-to-time at the sole discretion of PointGenie). Please read these terms and conditions, carefully before ordering any Products from the Website or third party App stores (e.g. the Apple App Store, the Android Play Store, Amazon, etc.). The terms “PointGenie,” “us” or “we” refers to PointGenie, LLC The term “Device” refers to the device which is used to access the Products including but not limited to computers, smart phones and tablets. The term “you” refers to the user of the Products. When you order (“Order”) any Products, or otherwise use or access the Products, you agree to be bound by these Terms and all applicable laws, rules and regulations. By using the Products, you indicate that you accept these Terms and that you agree to abide by them. If you do not agree to these Terms, please refrain from using the Products.
PointGenie makes no warranties, expressed or implied, concerning the accuracy, completeness or suitability of the information and data provided through the Products, and such information and data should not be construed or used as a legal description.. PointGenie is not responsible for the misuse or misrepresentation of the information and/or data provided through the Products, and any reliance you place on such information and/or data is therefore strictly at your own risk.
Our contact email address is support@PointGenie.com. All correspondence to PointGenie including any queries you may have regarding your use of the Products or these Terms should be sent to this contact email address.
1.2 Arbitration Notice And Class Action Waiver
Please Note That These Terms Contain An Arbitration Clause. Except For Certain Types Of Disputes Mentioned In The Arbitration Clause, You And Pointgenie Agree That Disputes Relating To These Terms Or Your Use Of The Products Will Be Resolved By Mandatory Binding Arbitration, And You And Pointgenie Waive Any Right To Participate In A Class-Action Lawsuit Or Class-Wide Arbitration.
1.3 Basis Of License
a. These Terms and the Order set out the whole agreement between you and us for the supply of the Products. In order to participate in certain Products, you may be required to agree to additional terms and conditions; those additional terms are hereby incorporated into these Terms. Where such terms are inconsistent with these Terms, the additional terms shall control.
b. Please check that the details in these Terms and on the Order are complete and accurate before you use or commit yourself to purchase the Products. If you think that there is a mistake, please make sure that you ask us to confirm any changes in writing, as we only accept responsibility for statements and representations made in writing by an officer of PointGenie.
c. As Part Of Your Use Of The Products, You Affirmatively Consent To The Processing And Storage Of Your Personal Information In The United States Including The Processing And Storing Of Your Personal Information In The United States For The Purposes Of Processing Payments And Tracking Individual Use Of The Products. By Using The Products, You Acknowledge That You Understand And Agree That The United States May Not Have The Same Level Of Protections For Your Personal Information That Exist In Your Country Of Residence, And You Nonetheless Consent To The Processing And Storage Of Your Personal Information In The United States. We Will Take Measures As Required To Comply With Applicable Law Regarding The Transfer, Storage And Use Of Certain Personal Information.
1.4 Changes To Terms
PointGenie reserves the right, in its sole discretion, to change or update these Terms, or any other of our policies or practices, at any time. If we do this, we will notify users by posting such changed or updated Terms on this page, and indicate the date these Terms were last revised. We will also notify you, either through the Products’ user interface, in an email notification or through other reasonable means. Any changes or updates will be effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Products for changes made for legal reasons will be effective immediately upon posting to www.PointGenie.com. Your continued use of the Products constitutes your agreement to abide by the Terms as changed.
2.1 Becoming A Member
a. You may sign up as a registered user of the Products free of charge (a “Member”). To become a Member you need to go to the relevant section of the Products, then submit your email address to us, and create a password to be used in conjunction with that email address. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your Device.
c. By placing an Order through the Products, you warrant that:
i. You are legally capable of entering into binding contracts.
ii. All registration information you submit is truthful and accurate.
iii. You will maintain the accuracy of such information.
iv. Your use of the Products does not violate any applicable law or regulation.
2.2 User Information
You are responsible for maintaining the confidentiality of your account, password and other User Information and for restricting access to your Device to further help protect such information. You are responsible for updating your User Information. PointGenie will not be liable for any loss or damage arising from your failure to comply with this Section.
2.3 Use Of Pointgenie By Minors
You must be 18 years of age, or the age of majority in your province, territory or country, to sign up as a registered user of the Products. Individuals under the age of 18, or the applicable age of majority, may utilize the Products only with the involvement and consent of a parent or legal guardian, under such person's account and otherwise subject to these Terms.
As an PointGenie Member you will receive access to certain features and functions of the Products that are not available to non-members. By agreeing to become a Member you opt-in to receiving occasional special offer, marketing, survey and Product based communication emails. You can easily unsubscribe from PointGenie commercial emails by following the opt-out instruction in these emails. PointGenie memberships and subscriptions are not transferable and therefore cannot be sold or exchanged or transferred in any way whatsoever.
a. PointGenie users may access the Products in three ways:
i. Browsing the Website or using the “Apps”(coming soon) without creating an account: we make some features and information available to users without creating an account.
ii. Free PointGenie Member account: additional information and many Product features are available to holders of free accounts.
iii. Paid PointGenie Starter, Pro or Enterprise subscription: a subscription fee-based program, which gives you access to premium Product features. You can become a PointGenie Starter/Pro/enterprise subscriber by purchasing a subscription to the Products from the Website, or within the Apps(coming soon) after completing the 30 days trial or immediately. If you purchase a subscription through the Website, we offer a 30 day money back guarantee. If you are not satisfied with any PointGenie Starter/Pro/enterprise service within 30 days of your initial purchase, email support@PointGenie.com and we will refund your payment.
b. Our “Monthly” subscriptions are paid for by an upfront one-off payment with automatic Monthly renewal. You acknowledge and agree that PointGenie is authorized to charge the applicable payment instrument (the “Payment Method”) used for
i. the initial Monthly subscription fee at the rate secured at the time of purchase
ii. the renewal subscription fee(s) at the effective rate in effect at the time of any such renewal. You must cancel your subscription before it renews in order to avoid billing of the renewal subscription fee to the Payment Method you provided. If your original purchase of a Monthly plan was through the Website, and you mistakenly renewed your subscription, email support@PointGenie.com within 30 days of your renewal payment and we will refund your renewal payment. Refunds cannot be claimed for any partial subscription period after the first 30 days from any such renewal.
c. You may cancel automatic renewals of your Monthly subscription at any time in your account at PointGenie.com, or by emailing support@PointGenie.com.
d. You agree to promptly notify PointGenie of any changes to the Payment Method you provided while any subscriptions remain outstanding. You are responsible for all applicable fees and charges incurred, including applicable taxes, and all subscriptions purchased by you.
e. In the course of your use of the Products, PointGenie and its third party payment service provider may receive and implement updated credit card information from your credit card issuer in order to prevent your subscription from being interrupted by an outdated or invalid card. This disbursement of the updated credit card information is provided to PointGenie and PointGenie’ third party payment service provider at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt-out of the update service. Should you desire to do so, please contact your credit card issuer.
f. Our obligation to provide the Products only comes into being when we take receipt of your Order, and we confirm your purchase to you by email. We shall confirm your Order and send you an email to confirm your access to the subscription purchased. Please quote the Order number in all subsequent correspondence with us. Prices in US Dollars and Euros include local taxes. All prices in Pound Sterling include VAT unless otherwise stated. You agree not to hold us responsible for banking charges incurred due to payments on your account. If payment is not received by us from the Payment Method you provided, you agree to pay all amounts due upon demand by us. You agree that you are not permitted to resell any Products purchased through PointGenie for commercial purposes.
2.6 Device Requirements
The Products includes certain services that are available via a mobile device, including (i) the ability to browse the Site from a mobile device and (ii) the ability to access certain features through an application downloaded and installed on a Device (collectively, the “Mobile Services”). To the extent you access the Products through a Device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Company and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your PointGenie account information to ensure that your messages are not sent to the person that acquires your old number.
2.7 Changing Fees And Charges
We may at any time and from time to time, in our sole discretion, change the fees and charges, or add new fees and charges, in relation to any of the Products. We will notify you at least 30 calendar days in advance of any such change. Your continued use of the Products after the price change becomes effective constitutes your agreement to pay the changed amount. If you do not agree to the change, you may cancel your membership or subscription in your account settings or by emailing support@PointGenie.com.
3.1 Cancellation By You
You may cancel the auto-renewal of your PointGenie subscription that you purchased on the Website in your account settings or by emailing support@PointGenie.com
3.2 Cancellation By Us
You agree that PointGenie, in its sole discretion, may suspend or terminate your use of the Products, for any reason, including, without limitation, as a result of your fraud or breach of any obligation under these Terms. Such termination or suspension may be immediate and without notice. PointGenie may also in its sole discretion and at any time discontinue providing the Products, or any part thereof, with or without notice. You agree that any termination of your access to the Products under any provision of these Terms may be effected without prior notice, and acknowledge and agree that PointGenie may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Products. Further, you agree that PointGenie will not be liable to you or any third party for any termination of your access to the Products. A breach of these Terms, includes without limitation, the unauthorized copying or download of our trail content from the Products.
3.3 Promotion Codes
Any promotion code or offer provided by us may not be used in conjunction with any other promotion code or offer, past or present. Introductory offers are only available to new users of the Products, except where expressly stated otherwise. Unless otherwise set forth in the terms of any promotion, all pricing promotions or discounts will apply to the initial period of the subscription, and any renewals will be charged at the rate in effect at the time of renewal for the type of subscription purchased.
4.1 You agree not to upload, post, email or otherwise send or transmit or introduce any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly with the Products or the Products themselves. You agree not to interfere with the servers or networks underlying or connected to the Products or to violate any of the procedures, policies or regulations of networks connected to the Products. You may not access the Products in an unauthorized manner.
4.2 You agree not to impersonate any other person while using the Products, conduct yourself in an offensive manner while using the Products, or use the Products for any illegal, immoral or harmful purpose.
4.3 By breaching the provisions of this section 4, you may commit a criminal offense under applicable laws. We may report any such breach to the relevant law enforcement authorities and we may cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Products will cease immediately.
a. All materials (including software and content whether downloaded or not) contained in the Products are owned by PointGenie (or our affiliates and/or third party licensors, where applicable), unless indicated otherwise. You agree and acknowledge that the materials are valuable property and that other than any specific and limited license for use of such materials, you shall not acquire any ownership rights in or to such materials. The materials may not be used except as provided for in these Terms, and any other relevant terms and conditions provided to you without our prior written permission.
b. You acknowledge and agree that certain materials on or in the Products are the property of third party licensors and, without prejudice to any and all other rights and remedies available, each such licensor has the right to directly enforce relevant provisions of section 12 against you.
c. The Products are not intended for your commercial use. Commercial advertisements, affiliate links, and other forms of solicitation may be removed by us without notice and may result in termination of privileges. You must not use any part of the materials used in or on the Products for commercial purposes without obtaining a written license to do so from us. Material from the Products may not be copied or distributed, or republished, or transmitted in any way, without our prior written consent. Any unauthorized use or violation of these Terms immediately and automatically terminates your right to use the Products and may subject you to legal liability. You agree not to use the Products for illegal purposes (including, without limitation, unlawful, harassing, libelous, invasion of another’s privacy, abusive, threatening or obscene purposes) and you agree that you will comply with all laws, rules and regulations related to your use of the Products. Appropriate legal action may be taken for any illegal or unauthorized use of the Products.
d. A limited amount of content may be marked and authorized for the user to share in their personal social channels (Facebook, Twitter, etc.). With respect to content made available by PointGenie through the Products that is specifically identified as available for distribution by you (“Distribution Content”) as part of your blog or other online commentary, analysis or review (“User Commentary”), PointGenie grants you a limited right to download, reproduce and distribute Distribution Content over the internet as part of your User Commentary. You may also modify such Distribution Content but only as required to technically enable the display and distribution of such content through your computer systems and over the Internet (e.g. a change in video format or file size) provided such modification does not materially alter the substance or quality of such content. Your display and distribution of Distribution Content may also be subject to other terms and conditions that are set forth in the description of such content in the Products, such as display and distribution of Distribution Content only within specified usage dates. You agree not to publish the Distribution Content with other content that is known by you to be false, inaccurate, or misleading or that is, or that encourages activity or conduct that is, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable. Distribution Content may contain trackers that enable us to collect information with respect to the distribution and consumption of such content.
e. You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials in the Products. If you make other use of the Products, or the content, code, data or materials thereon, except as otherwise provided above, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. PointGenie will enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.
PointGenie®, the PointGenie logo and all other PointGenie product or service marks are trademarks of PointGenie. All intellectual property, other trademarks, logos, images, product and company names displayed or referred to on or in the Products are the property of their respective owners. Nothing grants you any license or right to use, alter or remove or copy such material. Your misuse of the trademarks displayed on the Products is strictly prohibited. PointGenie will enforce its trademark rights to the fullest extent of the law, including the seeking of criminal prosecution.
6.1 Although we aim to offer you the best service possible, we make no promise that the Products will meet your requirements and we cannot guarantee that the Products will be fault free. If a fault occurs in the Products, please report it to us at support@PointGenie.com and we will review your complaint and, where we determine it is appropriate to do so, correct the fault. If the need arises, we may suspend access to the Products while we address the fault. We will not be liable to you if the Products are unavailable for a commercially reasonable period of time.
6.1 Your access to the Products may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Products. We will restore the Products as soon as we reasonably can. In the event that the Products are unavailable, our usual Order and cancellation deadlines apply; please notify us of changes to your Order by emailing support@PointGenie.com.
7.1 The Products may let you submit material to us: for example, in various parts of the Products you may be able to upload a photo to your profile, write reviews of trails, upload photos of your outdoor activities, or upload files that record your activities. In these Terms, we use the term “User Material” to refer to any publicly available material of any kind that you submit to us, including text, files, images, photos, and recorded activity information. User Material does not include the account information, Product purchase, or Product use information which you provide in registering for and using Products.
7.2 This section 7 sets out the rights and obligations that each of us have in connection with User Material. If you review or submit User Material, you are agreeing to do so in accordance with these Terms. If you do not want to review or submit User Material in accordance with these Terms, then you should not do so.
7.3 We do not always review User Material submitted by you or other users. We are not responsible for the content of User Material provided by you or any other user. We do not necessarily endorse any opinion contained in such material. We make no warranties or representations, express or implied, about User Material, including as to its legality or accuracy.
7.4 We reserve the right, in our sole discretion, to refuse to post or to remove or edit any of your User Material, or to restrict, suspend, or terminate your access to all or any part of the Products, particularly where User Material breaches this section 7, and we may do this with or without giving you any prior notice.
7.5 We may link User Material or parts of User Material to other material, including material submitted by other users or created by PointGenie or other third parties. We may use User Material for our internal business purposes, for example, to examine trends or categories or to promote, market or advertise PointGenie. You acknowledge that we may commercially benefit from use of your User Material.
7.6 Each time you submit User Material to us, you represent and warrant to us as follows:
a. You own your User Material or have the right to submit it, and in submitting it you will not be infringing any rights of any third party, including intellectual property rights (such as copyright or trademark), privacy or publicity rights, rights of confidentiality or rights under contract.
b. Your User Material is not illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, and does not encourage conduct that would be considered a criminal offense, and does not give rise to civil liability, violate any law, or is otherwise deemed inappropriate.
c. Your User Material does not advertise any product or service or solicit any business.
d. Your User Material does not identify any individual (including by way or name, address or a still picture or video) under the age of 18 and if User Material identifies any individual over the age of 18, you have that person’s consent to being identified in exactly that way in your User Material; and in submitting your User Material you are not impersonating any other person.
e. You will not collect usernames and/or email addresses of users for the purpose of sending unsolicited email.
f. You will not engage in criminal or tortious activity, including fraud, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or attempt to impersonate another user or person.
g. You will not engage in any automated use of the system, such as using scripts to alter our content.
h. You will not, without authorization, access, tamper with, or use non-public areas of the Products, PointGenie’ computer systems, or the technical delivery systems of PointGenie’ providers.
i. Except as necessary to maintain your own computer security by use of commercial-off-the-shelf anti-virus or anti-malware products, you will not attempt to probe, scan, or test the vulnerability of the Products or any other PointGenie system or network or breach any security or authentication measures.
7.7 We are entitled to identify you to third parties who claim that their rights have been infringed by User Material you have submitted.
7.8 User Material is not considered to be confidential. You agree not to submit any content as User Material in which you have any expectation of privacy. By submitting User Material you hereby grant PointGenie an irrevocable, perpetual, non-exclusive, royalty free, worldwide license to use, telecast, copy, perform, display, edit, distribute and otherwise exploit the User Material you post on the Products, or any portion thereof, and any ideas, concepts, or know how contained therein, with or 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 Material, and to grant and authorize sublicenses of the foregoing without any payment of money or any other form of consideration to you or to any third party. PointGenie may include your User Material in PointGenie’ Distribution Content that is made available to others through the Products. Be aware that PointGenie has no control over User Material once it leaves the Products, and it is possible that others may duplicate material found on the Products, including, but not limited to, on other sites on the Internet. You represent and warrant that you own or otherwise control the rights to your User Material. You agree to indemnify PointGenie and its affiliates for all claims arising from or in connection with any claims to any rights in your User Material or any damages arising from your User Material.
7.9 Any inquiries, feedback, suggestions, ideas, other information which is not part of your use of the Products or User Material that you provide to us (collectively, “Submissions”) will be treated as non-proprietary and non-confidential. By transmitting, uploading, posting, e-mailing, or otherwise submitting Submissions to the Products, you grant, and you represent and warrant that you have the right to grant, to PointGenie an irrevocable, perpetual, non-exclusive, royalty free, worldwide license to use, telecast, copy, perform, display, edit, distribute and otherwise exploit the Submissions, or any portion thereof and any ideas, concepts, or know how contained therein, with or 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 Submissions, and to grant and authorize sublicenses of the foregoing without any payment of money or any other form of consideration to you or to any third party. You also acknowledge that your Submissions will not be returned to you and that PointGenie has no obligation to acknowledge receipt of or respond to any Submissions. If you make a Submission, you represent and warrant that you own or otherwise control the rights to your Submission. You agree to indemnify PointGenie and its affiliates for all claims arising from or in connection with any claims to any rights in any Submission or any damages arising from any Submission.
8.1 We may provide links to other websites or services for you to access. You acknowledge that any access is at your sole discretion and for your information only. We do not review or endorse any of those websites or services. We are not responsible in any way for:
a. the availability of
b. the privacy practices of
c. the content, advertising, products, goods or other materials or resources on or available from
d. the use to which others make of these other websites or services. We are also not responsible for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on such websites or services.
8.2 You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. The Products must not be framed on any other website, nor may you create a link to any part of the Products unless you have written permission to do so from PointGenie. We reserve the right to withdraw linking permission with written notice. The website from which you are linking must comply in all respects with the content standards set out in our acceptable use policy. If you wish to make any use of material on or in the Products other than that set out above, please address your request to support@PointGenie.com.
The information contained in the Products is for general information purposes only. While we endeavor to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, accessibility (including rights of entry and/or use), security or availability with respect to the Products or the information contained on the Products for any purpose. In some cases, the Products are designed to reduce, but not eliminate, certain risks, but you hereby acknowledge and agree that the Products are not sufficient to warrant or guarantee that either no loss, no damage, or no physical harm will occur. You understand that PointGenie cannot and does not assume responsibility for any such personal injury, death, or property damage resulting from your use of the Products. PointGenie is not responsible for the misuse or misrepresentation of the information and/or data provided through the Products. Any reliance you place on such information is therefore strictly at your own risk.
10.1 Subject to the terms of this license agreement (“License Agreement”), as set out in this section 11, and these other Terms, and your payment of applicable subscription fees, PointGenie grants you a limited, non-exclusive, revocable license to stream, download and make personal non-commercial use of the Products.
10.2 The Products contain or embody copyrighted material, proprietary material or other intellectual property of PointGenie or its licensors. All right, title and ownership in the Products remain with PointGenie or its licensors, as applicable. The rights to download and use the Products are licensed to you and are not being sold to you, and you have no rights in them other than to use them in accordance with this License Agreement and our other Terms.
10.3 You agree that you will not and you will not assist or permit any third party to:
a. Copy, store, reproduce, transmit, modify, alter, reverse-engineer, emulate, de-compile, or disassemble the Products in any way, or create derivative works of the Products;
b. Use the Products or any part of them to create any tool or software product that can be used to create software applications of any nature whatsoever;
c. Rent, lease, loan, make available to the public, sell or distribute the Products in whole or in part;
d. Tamper with the Products or circumvent any technology used by PointGenie or its licensors to protect any content accessible through the Products;
e. Circumvent any territorial restrictions applied to the Products; or
f. Use the Products in a way that violates this License Agreement or the other Terms.
g. Use the Products for any commercial purpose without the express written consent of PointGenie.
10.4 You may not make the Products available to the public. The Products made available (in whole or in part) are owned by PointGenie or its licensors and your use of them must be in accordance with these Terms.
11.1 We are committed to complying with copyright and related laws, and we require all users of the Products to comply with these laws. Accordingly, you may not store any material or content on, or disseminate any material or content over, the Products in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by copyright law. Owners of copyrighted works in the United States who believe that their rights under copyright law have been infringed may take advantage of certain provisions of the US Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is our policy to terminate privileges of any user who repeatedly infringes the copyright rights of others upon receipt of proper notification to us by the copyright owner or the copyright owner’s legal agent.
11.2 If you feel that a posted message is objectionable or infringing, we encourage you to contact us immediately. Upon our receipt of a proper notice of claimed infringement under the DMCA, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue. Our designated agent (i.e., the proper party) to whom you should address such notice is listed below.
11.3 3 If you believe that your work has been copied and posted on the Products in a way that constitutes copyright infringement, please provide our designated agent with the following information:
a. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
b. A description of the copyrighted work or other intellectual property that you claim has been infringed;
c. A description of where the material that you claim is infringing is located on the Products;
d. Your address, telephone number, and email address;
e. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
f. A statement by you, made under penalty of perjury, that the information contained in your report is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
g. Our designated agent for notice of claims of copyright infringement can be reached as follows:
By Mail: PointGenie, LLC Attn: Copyright Agent 530 Bush St Suite 900 San Francisco, CA, 94108
By E-Mail: support@PointGenie.com Subject line: DMCA
12.1 Assignment By Us
PointGenie may assign or transfer its rights and obligations under these Terms to any company, firm or person at any time and without restriction. You may not assign or transfer your rights or obligations under these Terms to anyone else without the prior written consent of PointGenie. These Terms are personal to you and no third party is entitled to benefit under these Terms except as set out here.
12.2 Indemnity By You
You agree to defend, indemnify and hold PointGenie and its directors, officers, members, investors, managers, employees and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from your use of the Products, your placement or transmission of any message, content, information, software, or other submissions through the Products, or your breach or violation of the law or of these Terms. PointGenie reserves the right, at its 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 PointGenie defense of such claim. If you are a California resident, you waive California Civil Code Section 1542, which says: “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.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
12.3 Warranties And Limitations
a. We warrant to you that any Product purchased from us will, on delivery, conform in all material respects with its description and be of reasonably satisfactory quality.
b. Nothing in this sections 13.3 or otherwise in these Terms shall exclude or in any way limit PointGenie’ liability that may not be excluded or limited as a matter of law.
c. The Products and their content are otherwise provided on an “as is” basis and we make no representations or warranties of any kind with respect to them, including as to the accuracy, completeness or currency of the Products or their content. We assume no liability or responsibility for any errors or omissions in the content of the Products, or any failures, delays, or interruptions in the provision of the Products. We disclaim and exclude any express or implied warranties or representations, including any warranties as to merchantability or fitness for a particular purpose of the Products to the broadest extent permitted by law. We make no warranties or representations, express or implied, as to the timeliness, accuracy, quality, completeness or existence of the content and information posted on the Products. We make no warranties or representations, express or implied, for technical accessibility, fitness or flawlessness of the Products. We make no warranties or representations that your use of content and information posted on the Products will not infringe rights of third parties.
d. All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity are, to the extent permitted by law, excluded.
12.4 No Waiver
If we delay exercising or fail to exercise or enforce any right available to us under these Terms, such delay or failure does not constitute a waiver of that right or any other rights under these Terms.
12.5 Force Majeure
We will not be liable to you for any lack of performance, or the unavailability or failure, of the Products, or for any failure or delay by us to comply with these Terms, where such lack, unavailability or failure arises from any cause beyond our reasonable control.
In these Terms, unless the context requires otherwise: i) any phrase introduced by the words “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and ii) references to the singular include the plural and to the masculine include the feminine, and in each case vice versa.
12.7 Electronic Communications
a. Applicable laws require that some of the information or communications we send to you should be in writing. When using the Products, you agree to transact with us electronically, and that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on the Products. You agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing.
b. In order to retain a copy, please select “Print,” and select the appropriate printer. If you do not have a printer, you can copy the text and the underlying agreement(s) and paste them into a new document in a word processor or a text editor on your computer and save the text.
c. You have the right to receive a paper copy of the communications. To receive a paper copy, please request it by emailing us at support@PointGenie.com
d. We may charge you a reasonable service charge to mail you a paper copy of any communication. We will either include such service charge on our fee schedule or we will first inform you of the charge and provide you with the choice as to whether you still want us to send you a paper copy. Please be sure to state that you are requesting a copy of the particular communication.
e. To receive and view an electronic copy of the communications you must have the following equipment and software:
i. A personal computer or other device which is capable of accessing the Internet. Your access to this page verifies that your system/device meets these requirements.
f. To retain a copy, you must either have a printer connected to your personal computer or other device or, alternatively, the ability to save a copy through use of printing service or software such as Adobe Acrobat®. If you have a word processor or text editor program on your computer, then you can also copy the text and paste the text into a new document in the word processor or text editor and save the text.
g. You can also contact us via email at support@PointGenie.com to withdraw your consent to receive any future communications electronically, including if the system requirements described above change and you no longer possess the required system. If you withdraw your consent, we may terminate your use of the Products.
h. We reserve the right, in our sole discretion, to discontinue the provision of your electronic communications, or to terminate or change the terms and conditions on which we provide electronic communications. We will provide you with notice of any such termination or change as required by law.
Unless otherwise specifically indicated, all notices given by you to us must be given to PointGenie at support@PointGenie.com. We may give notice to you at the e-mail address you provide to us when you register, or in any of the ways specified in section 13.7 above. Notice will be deemed received and properly served immediately when posted on the Products or when an e-mail or other electronic communication is sent. In proving the service of any notice via email, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee.
12.9 Entire Agreement
These Terms and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to their subject matter. We each acknowledge that neither of us relies on, or will have any remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms or the documents referred to in them. Each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) will be for breach of contract. Nothing in this section limits or excludes any liability for fraud.
12.10 Third Party Rights
A person who is not party to these Terms will not, subject to section 12 (DMCA), have any rights under or in connection with these Terms.
12.11 Our Liability
a. We will use reasonable endeavors to remedy faults in the Products. If we fail to comply with these Terms, we will be liable to you only for the purchase price of the Products in question. In addition, we will not be liable for:
i. Faulty operation of computers during the registration process or during completion of a subscription or during the transmission of any data and/or for incorrect or overly slow transmission of data by the internet provider and/or any damage that occurs due to information submitted by you not being received by us or not being received promptly or not being considered, as a consequence of technical faults with our software or hardware (whether or not they are within or outside of our control).
ii. Any loss or damage due to viruses or other malicious software that may infect your Device, computer equipment, software, data or other property caused by you accessing, using or downloading from the Products, or from transmissions via emails or attachments received from us.
iii. Any use of websites linked to the Products but operated by third parties.
b. YOU EXPRESSLY UNDERSTAND AND AGREE THAT POINTGENIE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF POINTGENIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM:
(I) THE USE OR THE INABILITY TO USE THE SERVICE OR PRODUCTS;
(II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE OR PRODUCTS;
(III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
(IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE OR PRODUCTS;
OR (V) ANY OTHER MATTER RELATING TO THE SERVICE or PRODUCTS. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID POINTGENIE IN THE LAST SIX
(VI) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR PRODUCTS OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE AND/OR PRODUCTS. IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY, AS THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH POINTGENIE, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM POINTGENIE.
a. Applicability of Arbitration Agreement. All disputes arising out of, relating to, or in connection with these Terms or your use of the Products that cannot be resolved informally or in small claims court will be resolved through binding arbitration on an individual basis, except that you and PointGenie are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.
b. Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association ("AAA"). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The AAA Consumer Arbitration Rules (“AAA Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single neutral arbitrator. If the claim is for $10,000 or less, the party initiating the arbitration may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county of your billing address. In the case of an in-person hearing, the proceedings will be conducted at a location which is reasonably convenient for both parties with due consideration of the ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by the arbitration institution. Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA Rules with the remainder paid by PointGenie. If the arbitrator finds that either the substance of your claim or the relief sought in the arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse PointGenie for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
c. Authority of Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and PointGenie. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award all remedies available under applicable law, the arbitral forum's rules, and the Terms. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and PointGenie.
d. Jury Trial Waiver. You and PointGenie waive any constitutional and statutory rights to go to court and have a trial in front of a judge or a jury. Rather, you and PointGenie elect to have claims and disputes resolved by arbitration. In any litigation between you and PointGenie over whether to vacate or enforce an arbitration award, you and PointGenie waive all rights to a jury trial, and elect instead to have the dispute be resolved by a judge.
e. Class Action Waiver. WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND POINTGENIE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR CONSOLIDATED ACTION. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor PointGenie are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in section 13.13 below.
f. Opt-out. YOU MAY OPT-OUT OF THIS ARBITRATION AGREEMENT. If you do so, neither you nor PointGenie can force the other to arbitrate. To opt-out, you must notify PointGenie in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, and the email address you used to set up your PointGenie account (if you have one), and an unequivocal statement that you want to opt-out of this arbitration agreement. You must send your opt-out notice to one of the following physical or email addresses: PointGenie, LLC, ATTN: Arbitration Opt-out, 530 Bush St Suite 900 San Francisco, CA, 94108; support@PointGenie.com
g. Small Claims Court. Notwithstanding the foregoing, either you or PointGenie may bring an individual action in small claims court.
h. Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with PointGenie.
12.13 Exclusive Venue
To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and PointGenie agree that all claims and disputes arising out of or relating to the Terms or the use of the Products will be litigated exclusively in the United States District Court for the Northern District of California. If, however, that court would lack original jurisdiction over the litigation, then all claims and disputes arising out of or relating to the Terms or the use of the Products will be litigated exclusively in the Superior Court of California, County of San Francisco. You and PointGenie consent to the personal jurisdiction of both courts.
12.14 Choice Of Law
Except to the extent they are preempted by U.S. federal law, the laws of California, other than its conflict-of-laws principles, govern these Terms and any disputes arising out of or relating to these Terms or their subject matter, including tort claims.
If any provision of these Terms is found unenforceable, then that provision will be severed from these Terms and not affect the validity and enforceability of any remaining provisions.
PointGenie, LLC is located at 11201 NW 89th St Ste 211, Doral Fl 33178