Last Updated: December 7, 2021
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT, AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
1. OUR SERVICES AND USERS
The Services provide for a Site and an App that can be connected with a physical stuffed toy Panda (“Toy”) in which a parent (“Registered User”) can record their own voice or customize different types of mindfulness exercises for their children to listen to through the Toy and practice mindfulness and emotional regulation with. Our Services have several types of users:
- a. Visitors: Visitors to our Site, as the term implies, are people who do not register for an account, but want to explore the Site for informational purposes. No login is required for visitors to the Site. Visitors can access all publicly-available content and features of the Site, and can contact us using the contact link on the Site.
To create an account, you or your authorized representative will be prompted to create a password and provide your first name, last name and email address (“Pause User ID”) and perhaps provide certain additional information that will assist in authenticating your identity when you log-in in the future (collectively “Login Credentials”). We may also collect your child’s first name, year of birth, gender, and the type of content that may be of helpful or of interest to your child. You may not transfer your account to anyone else without our prior written permission. When creating your account, you must provide true, accurate, current, and complete information about yourself. Each Pause User ID and corresponding password can be used by only one individual. You are responsible for maintaining the confidentiality of your account Login Credentials. You are fully responsible for all activities that are associated with your account, use of the Services, or communications from your account to Pause). You agree to immediately notify us of any unauthorized use or suspected unauthorized use of your account or any other breach of security.
- a. Age Restrictions: The Services are available only to individuals aged 18 years or older. If you are 18 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. We reserve the right, in our sole and absolute discretion, to deny you access to the Services, or any portion of the Services, including by closing or disconnecting your account, without notice and without reason.
3. USER CONTENT: LICENSES
The Services allow Registered Users to customize and sync the mindfulness exercises to the Toy, record their own voice for their child, upload pictures, videos or GIF links unto the App (collectively, “User Content”). Registered Users can also view statistics as well as tips for Services usage.
You expressly acknowledge and agree that the recordings made on the App will only be stored on your mobile device and when or if you delete those records they are deleted forever. Pause does not store or transcribe your recordings. YOU, AND NOT PAUSE, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR USER CONTENT THAT YOU RECROD, UPLOAD, E-MAIL, OR OTHERWISE TRANSMIT VIA THE SERVICES.
You retain all copyrights and other intellectual property rights in and to your own User Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sub-licensable, license to record, synchronize and transmit your User Content to your Toy.
If you submit User Content to us, each such submission constitutes a representation and warranty to Pause that (i) you have received all necessary releases and consent from all individuals that appear in the User Content, and (ii) such User Content is your original creation (or that you otherwise have the right to provide the User Content), that you have the rights necessary to grant the license to the User Content under the prior paragraph, and that the User Content and its use by Pause and our content partners as permitted by this Agreement does not and will not infringe, misappropriate, or otherwise violate the intellectual property rights, moral rights, or rights of privacy or publicity of any person, or contain any libelous, defamatory, or obscene material or content that violates the Agreement. You agree to defend, indemnify, and hold us, our affiliates, and our and their respective owners, members, officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of the representations and warranties in this paragraph.
4. INTELLECTUAL PROPERTY
The Services contains material, such as software, text, graphics, images, and other material provided by or on behalf of Pause (collectively referred to as the “Content”). The Services and the Content are protected under United States and foreign laws. The Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in this Agreement, Pause and our licensors exclusively own all right, title, and interest in and to the Services and Content, including all associated intellectual property rights.
The trademarks, service marks, and logos of Pause (the “Pause Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Pause. Other company and service names located on the Services may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with Pause Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Pause Trademarks inures to our benefit.
Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
As a Registered User of our Services, you may elect to provide us with feedback, comments, and suggestions with respect to our Services (“Feedback”). You agree that Pause will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to you.
6. USAGE RIGHTS AND RESTRICTIONS
Subject to the terms and conditions of this Agreement, Pause grants you a limited, non-transferable, non-exclusive, license to access and use the Services solely for your personal purposes. Pause may terminate this license at any time for any reason. Further, when using or accessing the Services, you agree that:
- You will not upload, post, chat, e-mail, transmit, or otherwise make available any User Content that:
- infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
- is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence or illegal activity, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or
- discloses any sensitive information about another person (except the limited information you share about your child), including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
- You will comply with all applicable laws in your use of the Services and will not use the Services for any unlawful purpose;
- You will not access or use the Services to collect any market research for a competing business;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will not interfere with, or attempt to interrupt the proper operation of, the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Content, data, files, or passwords related to the Services through hacking, password or data mining, or any other means;
- You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Services;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Services;
- You will not use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express written permission;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
- You will not allow anyone to access and use your account;
- You will not resell, distribute, or sublicense the Services or use it for the benefit of anyone other than you or your business;
- You will not remove or modify any proprietary markings or restrictive legends placed on the Services; and
- You will not introduce, post, or upload to the Services any Harmful Code. As used herein, “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Services to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Services.
Pause reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof. You are free to stop using the Services at any time.
7. DIGITAL MILLENNIUM COPYRIGHT ACT
Pause respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content or User Content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
- Via Email at: firstname.lastname@example.org
- Mailing Address:
Pause with Panda, Inc.
Attn: Copyright Agent
131 Dudley Street, Apt 223
Jersey City, NJ 07302
If you believe that your work has been copied on the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
8. COMMUNICATIONS DECENY ACT NOTICE
Pursuant to the Communications Decency Act, you are hereby informed by Pause that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. A report detailing some of those protections can be found at http://www.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/index.html (Children’s Internet Protection Act: Report on the Effectiveness of Internet Protection Measures and Safety Policies).
9. NO WARRANTIES; LIMITATION OF LIABILITY
THE SERVICES, AND ALL CONTENT AND OTHER INFORMATION ON OR ACCESSIBLE FROM OR THROUGH THE SERVICES ARE PROVIDED BY PAUSE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. PAUSE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, THE CONTENT INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY OR ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PAUSE DOES NOT WARRANT THAT: (1) THE INFORMATION ON THE SERVICES IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THIS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; OR (3) DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER THAT MAKE THEM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES, THE TOY OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES, NOT ATTRIBUTABLE TO PERSONAL INJURIES, THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES OR THE CONTENT SHALL BE LIMITED TO ONE HUNDRED UNITED STATES DOLLARS (US $100).
SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
NOTHING IN THIS AGREEMENT SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
10. COMPLIANCE WITH APPLICABLE LAWS
The Services are based in the United States. We make no claims concerning whether the Services are accessible, or whether Content may be downloaded, viewed, or be appropriate for use outside of the United States. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
11. CONTROLLING LAW
This Agreement and any action related thereto will be governed by the laws of the State of New Jersey without regard to its conflict of laws provisions.
12. BINDING ARBITRATION
In the event of a dispute arising between you and Pause under or relating to this Agreement or the Services (each, a “Dispute”), such Dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER YOU OR PAUSE CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by you and Pause, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each of you and Pause will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 20 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
13. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
14. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in New Jersey for purposes of any such action by us.
15. EXTERNAL SITES
The Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
16. CHANGES TO THE AGREEMENT
17. DOWNLOADING THE APPLICATION
- We make the Services available through the Apple App Store. The following terms apply when you download the App from Apple’s App Store. These terms are in addition to all other terms contained in the Agreement.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- In the event of any failure of any of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. As between Pause and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Pause.
- You acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, as between Pause and Apple, Pause, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
- You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App against you as a third-party beneficiary thereof.
- We make the Services available through the Google Play Store. The following terms apply to the App when you download it from the Google Play Store (the App when downloaded from the Google Play Store shall be referred to herein as “Google-Sourced Software”). These terms are in addition to all other terms contained in the Agreement:
- Google is only a provider of Google Play where you obtained the Google-Sourced Software;
- Pause, and not Google, is solely responsible for the Google-Sourced Software;
- You acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to the Google-Sourced Software.
No failure or delay by Pause in exercising any right or remedy under the Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy. If any provision of the Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended and the remainder of the Agreement will remain in full force and effect. The Agreement constitutes the final and complete agreement between you and Pause regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between us, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements. Headings are for convenience only and shall not be used to limit or interpret the meaning of any of the provisions of the Agreement. Terms which by their nature are intended to survive indefinitely shall survive and shall apply to you even if you have canceled your account or stopped using the Services, including, without limitation, the limitations of liability and dispute resolution provisions.
19. HOW TO CONTACT US
If you have questions about the Agreement or our Services, please contact us via email at email@example.com.
Copyright 2021 Pause with Panda Inc. All rights reserved.