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Terms & Conditions

Terms of Service Agreement

Acceptance of Terms

Pongr, Inc. ("Pongr", "we" or "us") provides its services ("Services") to the customer (the "Customer, "user" or "you") subject to the following Terms of Service Agreement (the "Agreement"), which may be updated by Pongr from time to time without notice to you. In addition, when using particular Pongr owned or operated services, you and Pongr are subject to any posted guidelines or rules applicable to such Services, which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the Agreement.

Description Of Services Provided By Pongr

Pongr is an image recognition based mobile marketing company. Pongr's customers, brands and advertising agencies ("Advertisers"), use Pongr's mobile marketing solution to deploy and conduct marketing campaigns. As a user, you may engage in (opt-in) these mobile marketing campaigns ("Service"). The call to action in these campaigns requests your participation (opt-in) by asking you to take a picture of a print ad, product logo, product packaging, movie poster or billboard and send it to an e-mail address or picture-text code using the picture messaging capability of your cell phone. In return, you may be sent a simple SMS message with relevant information, SMS message with a link to a WAP site/Mobile Internet site, or possible entry into a contest or coupon. Opting to participate in the campaign is 100% your choice. And as indicated above, once you opt-in, you will only receive a message described above. You will not receive any messages from Pongr unless you have opted to participate in the campaign.

The Service may offer coupons or contests, which may be governed by a separate set of rules that describe the coupons or contests and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid or restricted, and to determine the sponsor's requirements of you in connection with the applicable coupons, contest or promotion.

Registration

If you register as a Customer or otherwise use the Services, you represent and warrant to Pongr that: (i) you are of legal age to form a binding contract; (ii) you will provide Pongr with accurate, current and complete registration information; and (iii) your registration and your use of the Services is not prohibited by law. Pongr reserves the right to suspend or terminate your registration, or your access to the Services, in the event that you breach any term of this Agreement. You are responsible for your own registration and all use of the Services under it. You should not share your password nor use the Services using the registration of any third party.

Minors

Pongr is not directed to users under the age of 13. If you are under the age of 13, you are not permitted to register as a Customer or to send personal information to Pongr.

Proprietary Materials

All the text, images, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content on this website, other than User Content as defined below ("Site Content"), and all software embodied in this website or otherwise used by Pongr to deliver the Services ("Software") is proprietary to us or to third parties, and except as otherwise expressly permitted by this Agreement, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other reduction of such software to human-readable form is prohibited.

Applicable Operator Fees

All text or picture messages initiated from your phone are subject to standard messaging fees from your mobile plan provider. You may also incur data usage fees imposed by your plan provider to access WAP/Mobile Internet sites. Standard messaging rates apply. Other charges may apply. Please check with your plan provider to find out the specifics of these charges.

OPTING OUT OF THE SERVICE

To opt-out of a Pongr campaign, please text back STOP (or "CANCEL," "END," "UNSUBSCRIBE," or "QUIT") to any message you receive from Pongr in connection with the campaign.

CUSTOMER SUPPORT AND HELP

Customer support and help is available through e-mail and details are on the Customer Support page. You may request customer support from [email protected]. You can also request help by texting the keyword "HELP" to any message you receive from Pongr.

License to Use the Services

Pongr authorizes you to access, view and use the Site Content and Software (collectively, the "Pongr Property") solely to the extent necessary for you to use the Services. You may not remove any copyright, trademark or other proprietary notices that have been placed on the Pongr Property. Except as expressly permitted by this Agreement, any modification, reproduction, redistribution, republication, uploading, posting, transmitting, distributing or otherwise exploiting in any way the Pongr Property, or any portion of the Pongr Property, is strictly prohibited without the prior written permission of Pongr.

You agree, and represent and warrant, that your use of the Services and the Pongr Property, or any portion thereof, will be consistent with the foregoing license, covenants and restrictions and will neither infringe nor violate the rights of any other party or breach any contract or legal duty to any other parties. In addition, you agree that you will comply with all applicable laws, regulations and ordinances relating to the Services, the Pongr Property or your use of them, and that in using the Services you will not engage in any conduct that restricts or inhibits any other person from using or enjoying the Services.

User Content

As part of using Pongr, you may upload, post, or submit to Pongr, or distribute using Pongr, photographs, text, graphics, video, audio, and other materials and information (collectively, "User Content"). The User Content remains your property, and Pongr does not claim any ownership of the copyright or other proprietary rights in such information and User Content. Notwithstanding the foregoing, you agree that:

you are publishing and making your User Content available for viewing by third parties, that your User Content may be associated with your Pongr username, and that accordingly your User Content will be attributable to you, that third parties will gain access to your User Content through the Services, and Pongr shall in no event be liable to you for any use or misuse of your User Content by any third party.;
you grant Pongr and its Partners a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, transferable license, with right to sublicense, to copy, modify, use, publish, distribute, prepare derivative works, publicly perform, publicly display and otherwise exploit the User Content in connection with operation of the Services, promotion of the Services, and any other purposes reasonably related to using Pongr and for the purposes of promotions and advertising of Pongr and its Partners.
all users of Pongr have the right to access your User Content, and to copy, modify, use, publish, distribute, prepare derivative works, publicly perform, publicly display and otherwise exploit the User Content for personal, non-commercial use;
you represent and warrant that you own all proprietary rights in your User Content or, with respect to any User Content you do not own, you have the full authority and right to post the User Content and to grant the licenses granted hereunder, and that your posting of the User Content, and the exercise by Pongr, its Partners and Customers of the license rights granted by you shall not infringe any third party intellectual property rights, nor violate any rights of privacy or publicity, nor be defamatory, libelous or obscene, nor violate any other right, privilege or interest of any third party; and
if any royalties are payable to any third party for exploitation of User Content posted by you in accordance with the licenses granted by you in this Agreement, you shall be responsible for and pay such royalties.

You acknowledge that Pongr may or may not pre-screen User Content, but that Pongr and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any User Content that is available via the Service. Without limiting the foregoing, Pongr and its designees shall have the right to remove any User Content that violates the Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content. In this regard, you acknowledge that you may not rely on any User Content created by Pongr or submitted to Pongr, including without limitation information in all parts of the Service.

No user of the Services shall:

Use, upload, post, distribute or transmit, any User Content in violation of, or in connection with any violation of, any local, state, national or international laws;
Impersonate any person or entity, or forge or manipulate headers to disguise the origin of any User Content;
Except as otherwise permitted by this Agreement, harvest or otherwise collect information about others, including email addresses, without their consent;
Post any User Content more than once or "spam";
Engage in any other conduct that interferes with the Services or that restricts or inhibits any other person from using or enjoying any User Content, or the Services, or which, in Pongr's sole judgment , exposes Pongr, its Partners, or any of their officers, directors, employees or agents to any liability or detriment of any type.

Services Restrictions

No user of the Services shall submit, post, upload to, distribute through or otherwise use in connection with the Services any User Content that:

Is libelous, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or that encourages a criminal offense;
Contains material from other copyrighted works without the written consent of the owner of such copyrighted material, other than reasonable excerpts permitted under the copyright doctrine of fair use;
Infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party;
Contains any statement, formula, direction, recipe, prescription or other matter that involves a reasonably foreseeable risk of injury or damage to the material's readers or others; or
Contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.

Pongr reserves the right (but is not obligated) to do any or all of the following:

record Customer Content;
Investigate any allegation that Customer Content or Customer registration information does not conform to the terms and conditions of this Agreement;
remove Customer Content or Customer registration information that is abusive, illegal or disruptive, or that otherwise fails to conform with the terms and conditions of this Agreement;
monitor, edit or disclose any Customer Content or Customer registration information; or
edit or delete any Customer Content or Customer registration information, regardless of whether such content violates any terms and conditions of this Agreement.

Pongr has no liability or responsibility to users of the Services or any other person or entity for performance or nonperformance of the aforementioned activities.

Points and Rewards

In some (but not all) instances, using Pongr may allow Customers to earn points and rewards.

Points will be awarded to users who complete challenges as indicated by the listing for points that is displayed to you immediately after you complete the challenge. Points may be withheld or reduced at any time in Pongr's absolute discretion. Without limitation of the foregoing, Pongr may not award points if a user provides a photo that does not meet the requirements, or if the user includes any profanity, vulgarity or other unacceptable User Content in using the services. Points have no cash value and may not be redeemed for cash.
Rewards are not applicable to all users. If a reward is offered, the fulfillment of the reward is the responsibility of the Partner sponsoring the applicable reward. If you qualify for a reward, by default the reward with the lowest point value is initially selected. Once you have selected a reward and points are earned towards that reward, the points cannot be transferred to another reward.

Third Party Websites

The Pongr website may contain links to third-party websites. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Pongr. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.

Ideas Submitted to Pongr

Pongr is pleased to hear from you and welcomes your comments about the Services. In the event that you submit ideas or suggestions for the Services ("Services Comments"), the Services Comments will be deemed, and will remain, the sole property of Pongr. None of the Services Comments will be subject to any obligation of confidence on the part of Pongr, and Pongr will not be liable for any use or disclosure of any Services Comments. Without limiting the foregoing, Pongr will be entitled to unrestricted use and other exploitation of the Services Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Services Comments.

Warranty Exclusions and Limitations of Liability

Pongr warrants that the Services and Pongr Property will conform substantially to the descriptions set forth on the Pongr website. However, Pongr does not warrant that the Services or Pongr Property will operate error-free or without downtime. Pongr may pause or interrupt the Services at any time, and users should expect periodic downtime for updates to Pongr. In the event of any breach of this warranty, the Customer's sole and exclusive remedy, and Pongr's sole and exclusive liability, shall be (at Pongr's option) to remedy the failure or to refund the amount paid by the Customer, if any. Except as set forth in the foregoing sentence, Pongr make no representations or warranties of any kind regarding the Services or the Pongr Property. PONGR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: ALL WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; THAT THE SERVICES AND PONGR PROPERTY WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICES OR PONGR PROPERTY, AND AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES OR THE PONGR PROPERTY. No advice or information, whether oral or written, obtained by you from Pongr or through the Services will create any warranty not expressly stated herein.

PONGR AND ITS PARTNERS DO NOT ASSUME ANY RESPONSIBILITY FOR THE CONTENT OF PONGR, FOR THE BEHAVIOR OF USERS, OR FOR ANY OTHER RISK OF BODILY INJURY OR DEATH ARISING IN CONNECTION WITH PLAYING PONGR. PONGR AND ITS PARTNERS ARE NOT RESPONSIBLE FOR ENSURING ACCESS TO THE LOCATIONS WHERE PONGR IS PLAYED. USERS PARTICIPATE IN PONGR AT THEIR OWN RISK.

UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM PONGR OR ANY PARTNER ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THE SERVICES OR PONGR PROPERTY, EVEN IF PONGR OR SUCH PARTNER HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

IN ANY EVENT, THE MAXIMUM AGGREGATE LIABILITY OF PONGR AND ITS PARTNERS FOR ANY AND ALL DAMAGES ARISING FROM THE SERVICES OR THE PONGR PROPERTY SHALL BE A REFUND OF THE AMOUNT PAID BY YOU TO PONGR, IF ANY.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity

Customer shall defend, indemnify and hold harmless Pongr against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys' fees arising in connection with Customer's use of Pongr, participation in Pongr, or Customer's breach of any provision of this Agreement. Pongr reserves the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to provide indemnification hereunder. You will cooperate with Pongr with respect to such defense and settlement.

Link to the Privacy Policy

Pongr is concerned about user privacy and operates the Services under the PRIVACY POLICY published at http://pongr.com/privacy/. We urge you to read this policy now and, because the policy is updated from time to time, later at your convenience.

Digital Millennium Copyright Act

Pongr complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on the Services you may contact our Designated Agent at the following address:

Pongr, Inc.
c/o Ben Thompson
PO Box 990011
Boston, MA 02199-9998

Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information:

an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Services;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

Counter Notices

If material that you have posted to the Services has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following:

a physical or electronic signature of the subscriber;
identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which PONGR may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.

Applicable Law and Jurisdiction; Compliance

You and Pongr agree that all matters arising from or relating to the use and operation of the Services will be governed by the substantive laws of the State of Delaware, without regard to its conflicts of laws principles. You agree that all claims you may have arising from or relating to the operation, use or other exploitation of the Services will be heard and resolved in the federal and state courts located in Delaware. You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any object to proceeding in such courts. If you choose to gain access to the Services from locations other than Delaware, you will be responsible for compliance with all local laws of any such other location, including interstate communications laws, and in no event will you use the Services or Site Content in violation of U.S. export laws or regulations.

Modifications

Pongr reserves the right to modify this Agreement, any aspects of the Services, or its policies at any time, with or without notice to you. You are under an obligation to review the current version of this Agreement and other Pongr policies before using Pongr.

Force Majeure

In no event shall Pongr be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside Pongr's reasonable control.

Miscellaneous Provisions

No delay or omission by Pongr in exercising any of its rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Pongr of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained. As used in this Agreement, "including" means "including but not limited to" and the term "Partner" is used solely to denote another entity with whom Pongr has a sponsorship or marketing agreement, not a participant in a legal partnership with a view to conducting a business enterprise in which participants share profits and losses. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between you and Pongr regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. You shall not assign or transfer this Agreement or any right or obligation hereunder to any third party. You agree that the electronic text of this Agreement constitutes a "writing" and your assent to the terms and conditions hereof constitutes a "signing" for all purposes.

Effective Date of Terms: 7/1/2010