2. Changes to the Terms of Service
We may modify these Terms from time to time. The most current version of the Terms will be located on WWW.HEATCITY.IO (the “Site”). You understand and agree that your access to or use of the Services is governed by the Terms effective at the time of your access to or use of the Service. If we make material changes to these Terms, we will notify you by email or by posting a notice on the Services prior to the effective date of the changes. We will also indicate at the top of this page the date that revisions were last made. You should revisit these Terms on a regular basis, as revised versions will be binding on you. Any such modification will be effective upon our posting of new Terms. You understand and agree that your continued access to or use of the Services after the effective date of modifications to the Terms indicates your acceptance of the modifications.
3. Our License to You
Subject to these Terms and our policies, we grant you a limited, non-exclusive, non-transferable, and revocable license to use the Services.
We may translate these Terms into other languages for your convenience. Nevertheless, the English version governs your relationship with Poplr. To the extent any translated version of these Terms conflicts with the English version, the English version controls.
5. Use of Services
You must be 21 years of age or older to use the Services. By using the Services you represent that you are 21 or older, and that you will not permit a minor under the age of 21 to use the Services, your account, or otherwise interact with the Services. Poplr will never knowingly solicit or accept personally identifiable information or other content from a user or visitor who Poplr knows is under 21 years of age. If Poplr discovers that a user under 21 years of age has created an account, or that a user or visitor under 21 years of age has posted personally identifiable information or other content to the Services, Poplr will terminate the account and remove the information or other content. Some of the Services may be software that is downloaded to your computer, phone, tablet, or other device. You agree that we may automatically upgrade those Services, and these Terms will apply to such upgrades.
Permission to use Poplr
We grant you permission to use the Services subject to the restrictions in these Terms. You understand and agree that your use of Services is at your own risk.
Availability of Services or any Portion of the Services
The Services or any portion of the Services, including any and all mobile apps and applications, may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability.
In order to use any mobile apps or applications that are part of the Services, you are required to have a compatible device, Internet access, and the necessary minimum specifications specified below (“System Requirements”).
You hereby acknowledge that the System Requirements may change from time to time, without notice, and that Poplr makes no representations as to the accuracy of the System Requirements. You may be required to obtain software and/or hardware updates or upgrades from time to time, as may be necessary for the continued use of the Services. You hereby acknowledge and agree that such System Requirements as specified, remains your responsibility. We will use reasonable efforts to make the mobile apps or applications that are part of the Services available at all times. However, you acknowledge that the mobile apps or applications that are part of the Services are provided over the Internet and mobile networks, and so the quality and availability of the mobile apps or applications that are part of the Services may be affected by factors outside our reasonable control. You further understand that we cannot guarantee that mobile apps or applications are part of the Services. You acknowledge that the Services, with your opt-in consent, may interoperate with several third party sites and services, including but not limited to Twitter, Foursquare, Instagram, Facebook and Snapchat (the “Supported Platform(s)”), and that some of the Services provided are highly dependent on the availability of such Supported Platforms (including the facilitation of any third party customer rewards programs or offers). If at any time any Supported Platforms cease to make their programs available to Poplr on reasonable terms, Poplr may cease to provide such features to you without entitling you to refund, credit, or other compensation. In order to use the features of the Services related to the Supported Platforms, you may be required to register for or log into such Supported Platforms on their respective websites. By enabling such Supported Platforms within the Service, you are allowing Poplr to pass your log-in information, if any, to these Supported Platforms for this purpose. We will use reasonable efforts to make the mobile apps or applications that are part of the Services available at all times. However, you acknowledge that we cannot guarantee that the mobile apps or applications that are part of the Services shall always be available, error-free, or fully functional, and therefore cannot be held liable for any loss of data, content, etc. that results from any such unavailability or non-functionality.
Characteristics of the Services and Location Based Features
While use of most of the Services is free, Poplr may offer in-app purchases or a paid version of the mobile app or application with additional features beyond the free version. You agree that all purchases of Poplr Services are final and that Poplr will not refund any transaction once it has been made. You are responsible for paying all taxes associated with such purchases. If Poplr suspends, disables, or terminates your account in accordance with Section 16 of this Agreement, you will lose access to any Services that you have purchased and Poplr will not compensate you for this loss or make any refund to you. Poplr reserves the right to change its fee policy at any time. You acknowledge that you are bound by the terms of agreement with your mobile network or Internet provider (collectively, the “Mobile Provider”), which will continue to apply when using the Services. As a result, you may be charged by the Mobile Provider for access to network connection services for the duration of the connection while accessing the Services or any such third party charges as may arise. You hereby acknowledge that Poplr is not responsible such charges or services. If you are not the authorized party to make payment for any Mobile Provider charges incurred to access the Services, you hereby warrant and represent that you have all necessary authority from such authorized party to use the Services.
7. User Accounts and User information
8. Communication from Poplr
By creating an account, you agree to receive certain communications in connection with the Services. For example, we may periodically send you emails including but not limited to information related to your Poplr account and the Supported Platforms.
Poplr and its licensees may publicly display advertisements and other information adjacent to or included with User Content (as such term is defined below). Such advertisements may be targeted to the Content or information on the Services, queries made through the Services, or any other information. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you. The Services may contain links to other websites maintained by third parties. These links are provided solely as a convenience and do not imply endorsement of, or association with, the third parties by Poplr.
10. Content Submissions
The Services may permit you and other users to create, submit, share, post, copy, link, store and otherwise distribute certain information, video, images, photos, drawings, icons, text and/or other content (“Content”). You are responsible for the Content that you provide (“User Content”) or otherwise make available to the Service, including without limitation its legality, reliability, and appropriateness. You warrant that either: (a) your User Content is wholly original to you and you exclusively own the rights to your User Content, including the right to grant all of the rights and licenses in this Agreement; or (b) all parties whose materials are included in your User Content, or who contributed in any way, are depicted in, or have any rights to your User Content, have granted you permission to submit and license your User Content to Poplr as set forth herein, with full knowledge that Poplr may exploit it in any manner whatsoever. You make such warranties without Poplr incurring any third party obligations or liability arising out of its exercise of the rights thereto granted herein by you. You grant to Poplr the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sub-license, display, perform, transmit, publish, broadcast, modify, make derivative works from, re-title, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content, for any purpose whatsoever, in any and all formats; on or through any and all media, software, formula or medium now known or hereafter known; and with any technology or devices now known or hereafter developed and to advertise, market and promote the same. You further agree that Poplr is free to use any ideas, concepts, know-how or techniques contained in any User Content you send to the Site or Poplr, for any purposes whatsoever, including, without limitation, developing, producing, marketing and otherwise exploiting products and/or services using such User Content; and without remuneration of any kind. You further perpetually and irrevocably grant Poplr the unconditional right to use and exploit your name, persona and likeness included in any User Content. You also grant to Poplr the right to sub-license and authorize others to exercise any of the rights granted to Poplr. You authorize Poplr to publish your User Content so that it may be accessed by users of the Supported Platforms and the Internet, and you waive any rights of attribution and/or any so-called moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you. You may not imply that your User Content is in any way sponsored or endorsed by Poplr. You represent that you own, or have the necessary permissions to use and authorize the use of your User Content as described herein. You cannot resell, reproduce, duplicate, copy or trade the Services for any purpose unless Poplr has given explicit permission for you to do so. You agree not to access these Services by any other means other than the applications, mobile apps, and/or other software provided by Poplr. Following termination or deactivation of your account, or upon removal any User Content from Poplr, we may retain your User Content for backup, archival, or audit purposes. Furthermore, Poplr and its users may retain and continue to use, store, display, reproduce, modify, create derivative works, perform, and distribute any of your User Content that other users have stored or shared through Poplr. We value hearing from our users, and are always interested in learning about ways we can improve the Poplr Services. If you choose to submit comments, ideas or feedback, you agree that we are free to use them without any restriction or compensation to you. By accepting your submission, Poplr does not waive any rights to use similar or related feedback previously known to Poplr, or developed by its employees, or obtained from sources other than you.
We Do Not Review User Content On the Services
The User Content or any other content available through the Services has not been reviewed, verified or authenticated by Poplr, and may include inaccuracies or false information or be offensive, indecent or objectionable. Poplr cannot make any representations, warranties, or guarantees in connection with the Services or any Content on or available through the Services, including relating to the accuracy, quality, usability, suitability or completeness of any User Content. You hereby acknowledge and affirm that it is your sole responsibility for and assume all risk arising from your use or reliance of any User Content. If notified by a user or content owner that User Content allegedly does not conform to the Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
11. Copyright Policy
Poplr does not condone nor authorize activities on or through the Services that infringe copyright or intellectual property rights. We will delete any infringing User Content if properly notified that such User Content infringes on another’s intellectual property rights. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C §512(c)(3) for further detail):
You can contact our Copyright Agent via email at email@example.com or by mail at Copyright Agent, c/o POPLR, Inc., firstname.lastname@example.org. Poplr reserves the right to terminate your account or any user account that it determines to be “repeat infringers." A repeat infringer is a user who has repeatedly been notified of infringing activity and/or has had Content repeatedly removed from the Service.
We care about the data security and privacy of our users. While we work to maintain the security of your content and account, Poplr cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify us immediately of any compromise or unauthorized use of your account.
13. Third Parties
Third Party Beneficiary
You hereby acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
Third Party Links, Sites, and Services
The Services may include content, information, and/or data from, or links to, other apps, web apps, websites, or services, including but not limited to the Supported Platforms ("Third Party Content"). We do not control, assume responsibility for or endorse any Third Party Content. You agree that we are not responsible for the availability or contents of such Third Party Content. Your use of Third Party Content is at your own risk and you agree that Poplr will have no liability arising from your use of or access to any Third Party Content. When you access the Third Party Content, you will do so at your own risk. Any use of Third Party Content is governed solely by the terms and conditions of such Third Party Content provider (and you shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third Party Content provider or Supported Platform, is between you and the relevant third party, and not Poplr. Poplr makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third Party Content or any transactions completed and any contract entered into by you with any such third party.
The Services may, from time to time, access Third Party Content by accessing third party Application Programing Interfaces (“APIs”) within the Services. You understand and agree that the Services are not endorsed, certified or otherwise approved in any way by the third party providing such API and the provider of the API is not responsible for the Services. Notwithstanding any license provided under these Terms (including the end user license granted under these Terms), (i) any such third party API is provided “as-is,” without any warranties and all implied warranties, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement, are expressly disclaimed; (ii) you may not modify or create derivative works based on any part of any such third party API; (iii) you may not decompile, reverse-engineer, disassemble, and/or otherwise reduce any such third party API to source code or other human-perceivable form, to the full extent allowed by law; (iv) ownership of any such third party API and any services related to any such third party API remain with the owner of the API; and (v) the provider of any third-party API used in connection with the Services disclaims any and all liability on the part of the third-party API provider for any interruption in its services as accessed via the Services.
14. Proprietary Rights
You acknowledge and agree that Poplr owns all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist), and that the Services may contain information which may be of confidential nature to Poplr and you have no right to disclose such information. Poplr, the Poplr logo, and other Poplr trademarks, service marks, graphics and logos used in connection with the Services are trademarks or registered trademarks of Poplr, Inc. (collectively “Poplr Marks”). Other trademarks, service marks, graphics and logos used in connection with the Services are the trademarks of their respective owners (collectively “Third Party Marks”). The Poplr Marks and Third Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of Poplr or the applicable trademark holder. The Services and the Content (including Third Party Content) are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and may have security components that protect digital information only as authorized by Poplr or the owner of the Content. You may not use any of our domain names without prior written consent by Poplr. You will not use any trademark, service mark, trade name, and logo of any company or organization in a method that is likely to cause or intends to cause confusion about ownership and authority.
15. Restrictions and Guidelines
We are under no obligation to enforce the Terms on your behalf against another user. While we encourage you to let us know if you believe another user has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by the Terms. You agree not to, and will not assist, encourage, or enable others to use the Services to:
You also agree you will not assist, encourage, or enable any users or third parties to:
Your Interactions with Other Users
√OTHER USERS MAY BE ABLE TO DETERMINE YOUR EXACT LOCATION THROUGH YOUR USE OF THE SERVICES. POPLR DOES NOT SCREEN ITS USERS. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS. POPLR STRONGLY ADVISES YOU TO USE EXTREME CAUTION BEFORE MEETING OR SHARING PERSONALLY IDENTIFIABLE INFORMATION WITH OTHER USERS OF THE SERVICES. You agree to take all necessary precautions in all interactions with other users, particularly if you decide to communicate outside of the Services or meet in person. In no event shall Poplr, its affiliates or its partners 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 you or anyone else in connection with the use of the Services including, without limitation, death, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other users or persons you meet through the Services.
The information and or features provided within the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Poplr to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of our Services or any portion of the Services, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities or features of any content, product, service or other feature that we provide. Services provided by Poplr may be subject to United States export controls. Thus, no software from the Services may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software or applications related to the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
You agree to indemnify, defend, and hold Poplr, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them harmless, including costs, liabilities, claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, and legal fees, from any claim or demand made by any third party arising out of or relating to (i) your access to or use of the Services or any portion thereof, (ii) your violation of the Terms, (iii) any products or services purchased or obtained by you in connection with the Services or any portion thereof, or (iv) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. Poplr reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without the prior written consent of Poplr. Poplr will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
18. Disclaimer of Warranty and Limitation of Liability
Poplr is not responsible for any Third Party Content, or any other Content posted on the Services or a Supported Platform, whether posted or caused by users of the Services, users of a Supported Platform, Poplr, third parties or by any of the equipment or programming associated with or utilized in the Services. Poplr is not responsible for the conduct, whether online or offline, of any user of the Services or a Supported Platform. Poplr assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. You understand that it is your duty to confirm and verify any information provided on or through the Site and Services, and that you bear the sole risk of relying on any such information, including but not limited to Content, Third-Party Content, or links. Poplr is not responsible for any problems or technical malfunction of any telephone network or lines, cellular data provider or network, computer online systems, servers or providers, computer equipment, software, Supported Platforms, failure of email or players on account of technical problems or traffic congestion on the Services or Site, including injury or damage to users or to any other person's computer, and/or mobile device. Neither Poplr nor any of its affiliates, advertisers, promoters or distribution partners shall be responsible for any loss or damage, including personal injury or death, resulting from anyone's use of the Services, any content posted on the Services or transmitted to users, or any interactions between users of the Services or Supported Platforms, whether online or offline. WE TRY TO KEEP SERVICES UP, BUG-FREE, AND SAFE, BUT YOU USE THEM AT YOUR OWN RISK. THE INFORMATION FROM OR THROUGH THE SITE AND THE SERVICES IS PROVIDED "AS IS," "AS AVAILABLE," AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED. THE CONTENT AND THE SERVICES MAY CONTAIN VIRUSES, BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. IN NO EVENT WILL POPLR OR ITS MEMBERS, EMPLOYEES OR AGENTS HAVE ANY LIABILITY WHATSOEVER FOR YOUR USE OF ANY CONTENT OR SERVICES. WE ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. POPLR DOES NOT CONTROL THE INFORMATION OR CONTENT PROVIDED BY THIRD PARTIES ON THE SERVICES, AND THEREFORE SHALL NOT BE RESPONSIBLE FOR YOUR RELIANCE ON ANY INFORMATION OR STATEMENTS MADE ON OR THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO THROUGH SUPPORTED PLATFORMS. POPLR IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD PARTY SERVICES OR SUPPORTED PLATFORMS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD PARTY SERVICES OR SUPPORTED PLATFORMS. POPLR’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE FEES, IF ANY, PAID BY YOU TO US FOR THE SERVICES WITHIN THE PRIOR THREE (3) MONTHS, BUT IN NO CASE WILL OUR LIABILITY TO YOU EXCEED $50. YOU AGREE THAT DISPUTES BETWEEN YOU AND POPLR WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR THE SITE AND THE SERVICES, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM US, REGARDLESS OF THE CAUSE OF ACTION. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: "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".
19. Time Limitation on Claims
You agree that any claim you may have arising out of or related to your relationship with Poplr must be filed within one (1) year after such claim arose; otherwise, your claim is permanently barred.
20. Dispute Resolution and Arbitration
For any dispute you have with Poplr, you agree to first contact us and attempt to resolve the dispute with us informally. You agree that, if Poplr has not been able to resolve the dispute with you informally, to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms by binding arbitration by except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by arbitrators appointed in accordance with such rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND POPLR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
21. Governing Law and Jurisdiction
The laws of the State of New York will govern these Terms, as well as any claim, cause of action or dispute that might arise between you and Poplr (a "Claim"), without regard to conflict of law provisions. For any claim brought by either party, you agree to submit and consent to the personal and exclusive jurisdiction in, and the exclusive venue of, the state and federal courts located within New York. The Services are controlled and operated from the United States, and we make no representations that they are appropriate or available for use in other locations.
23. General Terms