PONDDY EDUCATION, INC  

PONDDY READER TERMS OF SERVICE

Last Updated: July 25th, 2018

IMPORTANT: PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THESE TERMS OF SERVICE ARE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND PONDDY. Ponddy Education, Inc. (“Ponddy,” “us,” “we,” or “our”) proprietary Ponddy Reader online platform enables users to share teaching materials and simplifies the process of learning the Chinese language for students (the Ponddy Reader Platform”). These Terms of Service (“TOS”) govern your use of: (i) the Ponddy Reader Platform (which includes any and all underlying software and technology); (ii) the website owned or operated by Ponddy located at http://reader.Ponddy.com (“Ponddy Reader Website”); and (iii) any other Ponddy Reader Platform products or services (clauses (i)-(iii) collectively referred to as, the “Ponddy Reader Services”) offered by Ponddy to you, the user of the Ponddy Reader Services (“you” or “your”). The website at www.Ponddy.com and other Ponddy services are governed by separate Terms of Service. Your access and use of the Ponddy Reader Services is also subject to the Ponddy Reader Services privacy policy located here (the “Privacy Policy”). Please review the Privacy Policy to learn about how we treat your personal information. The Privacy Policy is hereby incorporated by reference into this TOS. When using particular services or materials through or in connection with the Ponddy Reader Services, you shall be subject to any posted rules applicable to such services or materials that may contain terms and conditions or other operating rules, policies and procedures in addition to those in the TOS (“Additional Terms”).  The Additional Terms are hereby incorporated by reference into the TOS.

By accessing or using the Ponddy Reader Services you affirm that you are thirteen (13) years of age or older. If you are not of legal age to accept this TOS in your jurisdiction, you affirm that your legal guardian is agreeing to this TOS on your behalf.  You or your legal guardian must accept this TOS to create a user account for the Ponddy Reader Services. If you do not have a user account, you or your legal guardian (as applicable) accepts this TOS by visiting the Ponddy Reader Website.  IF YOU, OR YOUR LEGAL GUARDIAN (AS APPLICABLE), DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS TOS, OR IF YOU OR YOUR LEGAL GUARDIAN DOES NOT HAVE AUTHORITY OR MEET THE ELIGIBILITY REQUIREMENTS AS SET FORTH ABOVE, DO NOT CLICK “I ACCEPT,” DO NOT CREATE A USER ACCOUNT, AND DO NOT USE THE PONDDY READER SERVICES. THE PONDDY READER SERVICES ARE NOT DIRECTED AT USERS UNDER THIRTEEN YEARS OF AGE. If for any reason, we, in our sole discretion, believe you do not meet the eligibility requirements set forth above, we reserve the right, with or without provision of any notice to you, to terminate your user account and this TOS. If you do not meet these eligibility requirements, we have no obligations to you under the TOS. If you are a competitor of Ponddy you may not access or use the Ponddy Reader Services without Ponddy’s prior written consent.

PLEASE NOTE: THIS TOS ALSO CONTAINS AN AGREEMENT TO ARBITRATE IN SECTION 20.4 BELOW WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. THIS TOS ALSO CONTAINS A WAIVER OF CLASS ACTION IN SECTION 21 AND A WAIVER OF JURY TRIAL IN SECTION 22.

1.                             Your Access and Use of the Ponddy Reader Services

1.1.                      Creating an Account.  In order to access and use some portions of the Ponddy Reader Services you must create and register a user account on the Ponddy Reader Website.  By registering a user account for the Ponddy Reader Services, you agree to provide and maintain up to date information that is true, accurate, current, and complete. You agree that you will not: (a) create a user account using a false identity or information; or (b) create a user account or use the Ponddy Reader Services if you have been previously removed or banned by us from use of the Ponddy Reader Services.

1.2.                      Account Activity. You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your password to your user account. You are solely responsible for any activity originating from your user account, regardless of whether such activity is authorized by you. You agree to notify us immediately of any unauthorized use of your user account.

1.3.                      Account Listings.  Registered user accounts may list up to three Content Offerings free of charge on or through the Ponddy Reader Services. Content Providers who wish to simultaneously list more than three Content Offerings must purchase a Subscription in accordance with Section 10.

1.4.                      Authorized Use of the Ponddy Reader Services. Subject to the terms and conditions of this TOS, including payment of applicable fees, Ponddy grants you a limited, non-exclusive, non-transferable, non-sublicensable license to: (i) access and use the Ponddy Reader Services; and (ii) view the Ponddy Content (defined below in Section 3.1).

1.5.                      Prohibited Use of the Ponddy Reader Services.  Except to the extent permitted by applicable law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Ponddy Reader Services:

                                                                    i.     modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that Ponddy provides to you or any other part of the Ponddy Reader Services;

                                                                  ii.     gain, or attempt to gain, unauthorized access to any servers, computer systems, user accounts or databases utilized in connection with the Ponddy Reader Services;

                                                                iii.     post, list or upload false, inaccurate, misleading, deceptive, defamatory, or libelous content;

                                                                iv.     post, list or upload User Content or Content Offerings in inappropriate categories or areas;

                                                                  v.     fail to pay for Content Offerings purchased by you;

                                                                vi.     fail to accurately describe Content Offerings;

                                                              vii.     distribute or post spam, unsolicited or bulk links, electronic communications, chain letters, or pyramid schemes;

                                                            viii.    manipulate the price of any Content Offering or interfere with any other user's listings;

                                                                ix.     distribute viruses or any other technologies that may harm Ponddy or the interests or property of users;

                                                                  x.     circumvent any technological measure implemented by Ponddy or any of Ponddy’s providers or any other third party to protect the Ponddy Reader Services or Ponddy Content;

                                                                xi.     use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access the Ponddy Reader Services or Ponddy Content for any purpose, except with the prior express permission of Ponddy;

                                                              xii.     harvest or otherwise collect information about users without their consent;

                                                            xiii.     disable, overload, or impair the infrastructure or proper functioning of the Ponddy Reader Services; or

                                                            xiv.     copy, reproduce, modify, use, display, mirror or frame the Ponddy Reader Services or any individual element within the Ponddy Reader Services, the Ponddy Content, Ponddy’s name, any Ponddy trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Ponddy’s prior express written consent.

1.6.                      Ponddy’s Privacy Practices.  You understand and agree that Ponddy collects information and data, which may include personal data, in connection with your use of the Ponddy Reader Services.  Any information or data that Ponddy collects through your use of the Ponddy Reader Services is subject to the Privacy Policy, which is made a part of and incorporated into this TOS.

1.7.                      Ponddy Communications.  We may need to contact you about your use of the Ponddy Reader Services. You may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications and you are responsible for any messaging or data fees you may be charged by your wireless carrier.  You can manage and opt-out from receiving other communications from your account settings.

2.                             Changes to this TOS and the Ponddy Reader Services.  Ponddy reserves the right to change the terms and conditions of this TOS in its sole discretion from time to time. All such changes will be effective when posted on the Ponddy Reader Website or emailed to you at the e-mail designated in your user account. You agree to review the Ponddy Reader Website periodically for changes. We reserve the right to change or discontinue the Ponddy Reader Services, in whole or in part, including without limitation, the Ponddy Content, the Internet based services, pricing, and technical support options. Your continued use of the Ponddy Reader Services after such changes are made to this TOS and posted on the Ponddy Reader Website or emailed to you will indicate your acceptance to such changes.

3.                             Ponddy’s Rights

3.1.                      Ownership.  Ponddy and its suppliers retain all right, title and interest in and to: (i) the Ponddy Reader Services, (ii) any and all software made available or a part of the Ponddy Reader Services, including, without limitation, the Ponddy Reader Platform and its underlying technology, and (iii) any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Ponddy Reader Services (“Ponddy Content”). Ponddy reserves all rights and licenses not expressly granted to you in this TOS and no implied license is granted by Ponddy. The Ponddy Content, the Ponddy Reader Services and their underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Ponddy Content or Ponddy Reader Services.

3.2.                      Trademarks. The Ponddy name, the terms Ponddy Chinese, Word Pond, Character Pond, Radical Pond, Pondlets, the Ponddy logo and all related names, logos, product and service names, designs and slogans are trademarks of Ponddy’s or its affiliates or licensors. You must not use such marks without the prior written permission of Ponddy. All other names, logos, product and service names, designs and slogans on the Ponddy Reader Services are the trademarks of their respective owners.

3.3.                      Feedback and Submissions.  Ponddy shall be entitled to unrestricted use of any and all comments, suggestions, ideas, notes, drawings, concepts, problems or other information disclosed or offered by you to us with respect to the characteristics or performance of the Ponddy Reader Services or Ponddy Content (collectively, “Feedback”). You agree that we may use the Feedback for any and all purposes whatsoever, commercial or otherwise, without any payment or other obligation to you or any other person involved with the creation of the Feedback.

4.                             User Content.  The Ponddy Reader Services may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials, excluding Content Offerings as defined in Section 7 (collectively, “User Content”) on or through the Ponddy Reader Services. All User Content must comply with the Content Restrictions set forth below in Section 6. PONDDY SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO THE INTERACTIVE SERVICES AND ANY ACTIONS, LIABILITIES, LOSSES, OR DAMAGES RESULTING FROM YOUR PARTICIPATION IN ANY INTERACTIVE SERVICES.

4.1.                      License Grant. Any User Content you post to the Ponddy Reader Services will be considered non-confidential and non-proprietary. By posting any User Content on or through the Ponddy Reader Services, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the non-exclusive, transferable, worldwide, perpetual, royalty free and fully paid up license and right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties your User Content in connection with the Ponddy Reader Services. 

4.2.                      Monitoring. Ponddy has no obligation to monitor the Interactive Services. However, Ponddy reserves the right to review User Content posted to the Interactive Services and to remove or edit any User Content, in whole or in part, in its sole discretion. Ponddy reserves the right to terminate your access to any or all of the Interactive Services at any time with or without notice for any or no reason whatsoever.

5.                             Disclosure.  At all times, Ponddy reserves the right to disclose any information including User Content, listings, and Content Offerings as necessary to satisfy any applicable law, regulation, legal process or governmental request.

6.                             Content Restrictions. These content restrictions apply to any and all User Content, Content Offerings, use of the Interactive Services, and listings.  All User Content, Content Offerings, use of Interactive Services, and listings must comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, all User Content, Content Offerings, use of Interactive Services and listings must not: 

                                                                    i.     contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable;

                                                                  ii.     promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

                                                                iii.     infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person;

                                                                iv.     violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this TOS or our Privacy Policy;

                                                                  v.     be likely to deceive any person;

                                                                vi.     promote any illegal activity, or advocate, promote or assist any unlawful act;

                                                              vii.     cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person;

                                                            viii.     impersonate any person, or misrepresent your identity or affiliation with any person or organization;

                                                                ix.     involve contests or sweepstakes; or

                                                                  x.     give the impression that they emanate from or are endorsed by Ponddy or any other person or entity, if this is not the case.

7.                             Content Offerings. Subject to this TOS, you (“Content Provider”) may create original course material (“Content Offerings”) and list Content Offerings to the Ponddy Reader Services. Subject to the guidelines posted on the Ponddy Reader Services, including this TOS, you may create your Content Offerings in accordance with your own schedule and using your own facilities and resources. You are not required to become a Content Provider and you may cease your activities as a Content Provider at any time provided that we may continue to use Content Offerings as described in Section 7.2.

7.1.                      Listing Conditions. When listing a Content Offering, you agree that:

                                                                    i.     You, as the Content Provider, are responsible for the accuracy and content of the listing and Content Offerings you are listing;

                                                                  ii.     listings may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances);

                                                                iii.     Content Offerings that violate any of Ponddy's policies may be modified, obfuscated or deleted at Ponddy's sole discretion;

                                                                iv.     Ponddy may revise data associated with listings to supplement, remove, or correct information;

                                                                  v.     to drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the user;

                                                                vi.     we strive to create a platform where content purchasers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including:

1.           search query and history;

2.           Ponddy’s software analysis which provides the appropriate skill level for Content Offerings;

3.           listing format, price, history, and relevance to the user query;

4.           number of listing views, the number of shares and likes;

5.           the number of purchases (if the Content Offering is not free);

6.           Content Provider's history, including listing practices, Content Provider’s ratings, Ponddy policy compliance, Feedback; and

7.           number of listings matching the user's query.

7.2.                      License Grant. Any Content Offerings you list or have listed as a Content Provider are owned by you (subject to us retaining ownership of the existing Ponddy course, including, without limitations, all Ponddy Content therein). By listing any Content Offerings, you grant us a fully paid up, royalty-free, transferable, perpetual, worldwide license to reproduce, display, perform, modify, create derivative works of, and distribute Content Offerings on or through the Ponddy Reader Services and Ponddy tutoring services.

7.3.                      Monitoring. Ponddy has no obligation to monitor Content Offerings. However, Ponddy reserves the right to review Content Offerings and to remove or edit any Content Offerings in its sole discretion. Ponddy reserves the right to terminate your right to list Content Offerings on or through the Ponddy Reader Services at any time with or without notice for any, or, for no reason whatsoever.

8.                             Your Representations and Warranties.  You represent and warrant that with respect to any User Content and/or Content Offerings, submitted, posted or listed by you on or though the Ponddy Reader Services:

                                                                    i.     you own or control all rights in and to the User Content and/or Content Offerings and have the right to grant the licenses granted above;

                                                                  ii.     all of your User Content and/or Content Offerings do and will comply with this TOS; and 

                                                                iii.     you understand and acknowledge that you are responsible for any User Content and/or Content Offerings you post or list, and you, not Ponddy, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness notwithstanding any modifications made by Ponddy to your User Content and Content Offering that does not materially alter your User Content or Content Offering.

9.                             Purchase and Sale of Content Offerings. In order to purchase or sell a Content Offering, you must create and register a user account. When you purchase or sell a Content Offering on or through the Ponddy Reader Services, you and the Content Provider or the purchaser of the Content Offering enter into a separate sales contract based on this TOS (as applicable) with each other.

9.1.                      Pricing and Availability.  Pricing and availability of Content Offerings are subject to change at any time prior to purchase.

9.2.                      Payment. You must abide by any relevant terms and conditions of the third party payment processor. Ponddy is not responsible for any duties, customs fees, levies or taxes associated with the purchase or sale of Content Offerings.

9.3.                      Refunds. Ponddy does not offer refunds when you purchase Content Offerings.

10.                        Subscriptions.  Ponddy offers subscriptions to the Ponddy Reader Services (each a “Subscription”) if you would like to list more than 3 Content Offerings simultaneously.

10.1.                 Renewal. Subscriptions shall automatically renew following the end of each Subscription term unless you cancel the Subscription prior to the expiration of your then-current Subscription. Subscriptions shall renew at Ponddy’s then-current pricing for Subscriptions.

10.2.                 Payment Terms. If you have purchased a Subscription to the Ponddy Reader Services, you shall pay to Ponddy the fees according to the payment terms specified in the Subscription order submitted by you to Ponddy. All fees are non-refundable. 

10.3.                 Fees. Subscription fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and you will be responsible for payment of all such taxes (other than taxes based on Ponddy’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Ponddy Reader Services, or performance of any services by Ponddy. Ponddy may increase the amount of fees and rates payable by you upon 30 days written notice to you to the email listed in your account, provided that any such increase shall not be more than once in any twelve (12) month period.

10.4.                 Subscription Refunds. When cancelling a month-to-month Subscription, your Subscription can be cancelled within 7 days of your initial Subscription purchase date for a full refund. If you cancel your Subscription after 7 days from the initial Subscription purchase date, all Subscription fees are non-refundable and your Subscription will continue until the end of that month’s Subscription period. When cancelling an annual Subscription, your Subscription can be cancelled within 7 days of your initial Subscription purchase date for a full refund. If you cancel your Subscription after 7 days from the initial Subscription purchase date, all fees are non-refundable and your Subscription will continue until the end of your annual Subscription period.

11.                        Privacy of Others. If Ponddy provides you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose, sell, rent, or distribute any user's information to a third party for purposes unrelated to the Ponddy Reader Services. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.

12.                        Release.  If you have a dispute with one or more users, Content Providers, or Content Offering purchasers, you release us and our affiliates, and our and our affiliates’ respective officers, directors, employees and agents, from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. With respect to this release, you further waive all rights under Section 1542 of the California Civil Code, and any law or legal principle of similar effect in any jurisdiction, as such rights that may relate to the releases in this section.  Section 1542 of the California Civil Code, provides as follows: 

“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.”

13.                        Copyright Infringement.  If you believe that any User Content, Content Offerings or use of Interactive Services violate your copyright, please see our Copyright Policy for instructions on sending us a notice of copyright infringement. It is the policy of Ponddy to terminate the user accounts of repeat infringers.

14.                        Indemnity.  You agree to indemnify and hold harmless Ponddy, and our officers, directors, employees and agents, affiliates, successors, and assigns from and against any claims, disputes, demands, liabilities, deficiencies, damages, losses, judgments, settlements, interest, awards, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the Ponddy Content or Ponddy Reader Services, or (ii) your breach of any warranties made by you hereunder or your violation of any other provision of this TOS. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses. You agree to not settle any claims without Ponddy’s prior written consent.

15.                        Termination.  You may cancel your account at any time by submitting your request to support(at)ponddy-edu(dot)com with the subject line: “Termination of Account.” We reserve the right to deactivate your account or terminate this TOS, at our sole discretion, at any time and with or without notice or liability to you, if you violate this TOS. Upon any such termination, we may delete your data and any other information related to your account.  The following Sections shall survive any termination or expiration of this TOS: 1.5, 2, 3, 4, 5, 7.2, 8, 11, 12, 13, 14, 16, 17, 18, 20, 21, 22, 23, and 24.  

16.                        Disclaimers 

16.1.                 PONDDY PROVIDES THE PONDDY READER SERVICES, PONDDY CONTENT, PONDDY TUTORING, USER CONTENT, AND ANY OTHER SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PONDDY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH REGARD TO THIS TOS, THE PONDDY READER SERVICES, PONDDY CONTENT, PONDDY TUTORING, USER CONTENT, AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY PONDDY, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY PURPOSE, OR FITNESS FOR A PARTICULAR PURPOSE. 

16.2.                 PONDDY DOES NOT WARRANT THAT THE PONDDY READER SERVICES, PONDDY CONTENT, PONDDY TUTORING, USER CONTENT, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY PONDDY WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ANY RESULTS OR RECOMMENDATIONS RESULTING FROM YOUR USE OF THE PONDDY READER SERVICES, PONDDY CONTENT, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY PONDDY WILL BE CORRECT, ACCURATE, OR RELIABLE. 

16.3.                 YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE, OR LIABLE TO YOU OR ANY THIRD PARTY, FOR THE CONTENT OR ACCURACY OF ANY USER CONTENT OR CONTENT OFFERINGS POSTED BY YOU OR ANY OTHER USER OF THE PONDDY READER SERVICES.

16.4.                 YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES AND THAT NO WARRANTIES ARE MADE BY ANY OF PONDDY’S SUPPLIERS. YOU ACKNOWLEDGE AND AGREE THAT IF YOU RELY ON THE PONDDY READER SERVICES, PONDDY CONTENT, CONTENT OFFERINGS, or any other materials or services provided by Ponddy YOU DO SO SOLELY AT YOUR OWN RISK.

17.                        Limitation of Liability 

17.1.                 PONDDY AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS TOS, THE ADDITIONAL TERMS, THE PRIVACY POLICY OR FROM THE USE OF OR INABILITY TO USE THE PONDDY READER SERVICES, PONDDY CONTENT, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY PONDDY, OR ANY CONTENT OFFERINGS, OR ANY USER’S USER CONTENT WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PONDDY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

17.2.                 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PONDDY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS TOS, THE ADDITIONAL TERMS, THE PRIVACY POLICY OR FROM THE USE OF OR INABILITY TO USE THE PONDDY READER SERVICES, PONDDY CONTENT, ANY OTHER MATERIALS OR SERVICES PROVIDED BY PONDDY, OR ANY CONTENT OFFERINGS EXCEED (I) THE AMOUNTS YOU HAVE ACTUALLY PAID TO PONDDY FOR USE OF THE PONDDY READER SERVICES OR (II) FIFTY DOLLARS ($50), IF YOU HAVE NOT MADE ANY PAYMENT OR DO NOT HAVE ANY PAYMENT OBLIGATIONS TO PONDDY, AS APPLICABLE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY

17.3.                 THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PONDDY AND YOU.

18.                        Application of Limitations and Disclaimers to Consumers.  Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in the Sections 16 and 17 above may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in this TOS do not affect or prejudice the statutory rights of a consumer.  The limitations or exclusions of warranties and remedies contained in this TOS shall apply to a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where such consumer is located.

19.                        Availability of the Ponddy Reader Services.  The Ponddy Reader Services is accessible worldwide but this does not mean the Ponddy Reader Services or certain portions thereof are available in your country. We may restrict access to the Ponddy Reader Services or portions thereof in certain countries. It is your responsibility to make sure that your use of the Ponddy Reader Services is legal in your country of residence. The Ponddy Reader Services may not be available in all languages. If at our reasonable determination, you use the Ponddy Reader Services or any other material or services provided by us to you under this TOS in a manner that violates laws, or creates an excessive burden or potential adverse impact on our systems, in addition to any of its other rights or remedies, we may, without liability to us, immediately suspend or terminate your access to the Ponddy Reader Services.

20.                        Governing Law and Dispute Resolution

20.1.                 Governing Law. This TOS will be governed by the laws of the State of California, United States of America without giving effect to any conflict of laws principles.

20.2.                 Disputes. Except as otherwise set forth in this TOS, you agree that any dispute between you and Ponddy arising out of or relating to this TOS, the Ponddy Reader Services, or any other Ponddy products or services (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.

20.3.                 Informal Resolution.  Before resorting to formal dispute resolution in accordance with this Section, you agree to first contact us directly at support(at)ponddy-edu(dot)com to seek an informal resolution to any Dispute. In the event a Dispute is not resolved within thirty (30) days after submission, you or Ponddy may institute arbitration in accordance with the procedures set forth in this Section.

20.4.                 Arbitration. Any and all Disputes that cannot be resolved through informal resolution in accordance with Section 20.3 above shall be resolved exclusively through final, binding and confidential arbitration and shall take place in Santa Clara County, California unless otherwise mutually agreed to by the parties. The arbitration shall be conducted under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (AAA) as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction.

20.5.                 Opting-Out of Arbitration. YOU MAY OPT-OUT OF THE AGREEMENT TO ARBITRATE BY PROVIDING PONDDY WRITTEN NOTICE WITHIN THIRTY (30) DAYS OF FIRST ACCEPTING THIS TOS.  YOUR NOTICE MUST INCLUDE: (I) YOUR FULL NAME (FIRST AND LAST); (II) THE EMAIL ADDRESS YOU USED TO REGISTER YOUR ACCOUNT; AND (III) A CLEAR STATEMENT THAT YOU DECLINE THIS AGREEMENT TO ARBITRATE.

20.6.                 Exception to Arbitration.  Notwithstanding anything in this TOS to the contrary to the extent you have in any manner violated or threatened to violate any of Ponddy’s intellectual property rights, Ponddy may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts.  

21.                        No Class Actions. You may only resolve Disputes with Ponddy on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN'T ALLOWED UNDER THIS TOS.

22.                        Venue and Waiver of Jury Trial. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Ponddy agree that any judicial proceeding will be brought in the federal or state courts of Santa Clara County, California. Both you and Ponddy consent to venue and personal jurisdiction there. YOU AND PONDDY BOTH AGREE TO WAIVE ANY RIGHT EITHER PARTY MAY HAVE TO A JURY TRIAL. 

23.                        Time Limitation to Bring Claims. Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Ponddy products or Ponddy Reader Services must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.

24.                        General Terms.  Neither the rights nor the obligations arising under this TOS are assignable by you, and any such attempted assignment or transfer shall be void and without effect. This TOS may be assigned or transferred by Ponddy without restriction. Any waiver, amendment or modification of any provision of this TOS must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this TOS shall not be deemed a waiver of that right. Each party represents and warrants to the other that the execution and delivery of this TOS and the performance of such party’s obligations have been duly authorized and that this TOS is a valid and legal agreement binding on the party and enforceable according to its terms. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in this TOS and its performance shall be construed as creating a joint venture or agency between Ponddy and you. Ponddy may delegate the performance of any services hereunder to its affiliates and contractors. This TOS, Privacy Policy, and Additional Terms constitute the entire agreement between the parties regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described herein.   Any notice to you may be provided by email to the email address designated in your user account.  The headings of the Sections of this TOS are for convenience and are not to be used in interpreting this TOS.  As used in this TOS, the word “including” means “including but not limited to.” Any delay in performance of any duties or obligations of either party will not be considered a breach of this TOS if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party. If any part of this TOS is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and limitations of liability set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the TOS shall continue in effect.

25.                        Question or Additional Information.  If you have any questions regarding this TOS, please send an email to support(at)ponddy-edu(dot)com with subject line “Questions & Additional Information”.

Ponddy Education, Inc.

1550 The Alameda #310

San Jose, California 95126 
USA