Terms of Use

Welcome To Ploinks®!


Last updated: March 14, 2017


Please read these Terms of Use ("Terms" or "Terms of Use") carefully before using the Ploinks® website located at http://www.Ploinks.com (the “Website”) operated by Ploinks, Inc. ("us", "we", "our" or “Ploinks, Inc.”).

Your access to and use of the Website is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Website.

THESE TERMS INCLUDE AN ARBITRATION CLAUSE IF YOU LIVE IN THE UNITED STATES, PLEASE READ THE TERMS OF THE BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER (YOU WILL FIND THESE PROVISIONS TOWARD THE END OF THESE TERMS OF USE) THAT AFFECTS HOW DISPUTES ARE RESOLVED. BY ACCESSING THE WEBSITE, YOU AGREE THAT CERTAIN DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION UNLESS YOU OPT-OUT, AND THAT YOU WILL WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

These Terms of Use form a legally binding agreement between you and us. By accessing or using the Website you agree to be bound by these Terms and to accept our Privacy Policy concerning the Website (located at www.Ploinks.com/Privacy), which is also part of these Terms. If you disagree with any part of the Terms, then you do not have permission to access the Website.


Updates to the Website

Ploinks, Inc. may from time to time provide enhancements or improvements to the features/functionality of the Website, which may include patches, bug fixes, updates, upgrades and other modifications ("Updates").

Updates may modify or delete certain features and/or functionalities of the Website. You agree that Ploinks, Inc. has no obligation to (i) provide any Updates, or (ii) continue to provide to you or enable any particular features and/or functionalities of the Website.

You further agree that all Updates will be (i) deemed to constitute an integral part of the Website and (ii) subject to these Terms of Use.


Modifications to the Website

Ploinks, Inc. reserves the right to temporarily or permanently modify, suspend or discontinue the Website, with or without notice and without liability to you.


Privacy Policy

Ploinks, Inc. collects, stores, maintains, and shares information about you in accordance with its Privacy Policy, which is available at www.Ploinks.com/Privacy. You acknowledge that you agree and consent to the terms and conditions of our Privacy Policy


Your Suggestions

Any feedback, comments, ideas, improvements or suggestions (collectively, "Suggestions") provided by you to Ploinks, Inc. with respect to the Website or any services or software provided by Ploinks, Inc. shall remain the sole and exclusive property of Ploinks, Inc.

Ploinks, Inc. shall be free to use, copy, modify, publish, or redistribute the Suggestions for any purpose and in any way without any credit or any compensation to you.


Availability, Errors and Inaccuracies

We are constantly updating product and service offerings on the Website. We may experience delays in updating information on the Website and in our advertising on other web sites. The information found on the Website may contain errors or inaccuracies and may not be complete or current. Products or services described on the Website may be mispriced, described inaccurately, or unavailable on the Website and we cannot guarantee the accuracy or completeness of any information found on the Website.

We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.


Content

Any information, text, graphics, videos, or other material ("Content") found on or through this Website is the property of Ploinks, Inc. or is used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.


Intellectual Property

The Website and any services provided by Ploinks, Inc. consist of original content (excluding certain Content of users of our services that is not Suggestions (as defined above), features and functionality that are and will remain the exclusive property of Ploinks, Inc. and its licensors. The Website and any services provided by Ploinks, Inc. are protected by patent, copyright, trademark, patent trade secret and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Ploinks, Inc.


Third-Party Links and Services

Our Website may display, include or make available third-party content (including data, information, applications and other products services) or provide links to third-party websites or services ("Third Party Services") that are not owned or controlled by Ploinks, Inc.

Ploinks, Inc. has no control over, and assumes no responsibility for the content, privacy policies, or practices of any Third Party Services. We do not warrant the offerings of any of these entities or their websites.

You acknowledge and agree that Ploinks, Inc. shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods or services available on or through any Third Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Ploinks, Inc. does not assume and shall not have any liability or responsibility to you or any other person or entity for any Third-Party Services accessed through our Website.

Third-Party Services and links thereto are provided solely as a convenience to you through the use of our Website; accordingly, your access to and use of Third-Party Services and links thereto, is entirely at your own risk and subject to such third parties' terms and conditions, as applicable.

We strongly advise you to read the terms of use and privacy policies of any third party web sites or services that you visit.


Indemnification

You agree to defend, indemnify and hold harmless Ploinks, Inc. and its licensees and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees), resulting from or arising out of (a) access to and/or use of the Website, by you or any person using your account and password; (b) a breach of these Terms, or (c) Content posted by you (or by any person using your account and password) on or through the Website.


No Warranty

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE WEBSITE AND ANY SERVICES PROVIDED BY US ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WEBSITE AND ANY SERVICES PROVIDED BY US ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PLOINKS, INC HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE WEBSITE AND ANY SERVICES PROVIDED BY US, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. PLOINKS, INC. DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE WEBSITE OR ANY SERVICES PROVIDED BY US, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE WEBSITE OR ANY SERVICES PROVIDED BY US WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE WEBSITE AND ANY SERVICES PROVIDED BY US WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE WEBSITE OR ANY SERVICES PROVIDED BY US WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PLOINKS, INC. OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE WEBSITE OR ANY SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.


Limitation of Liability

TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL PLOINKS, INC. (OR ANY OF ITS DIRECTORS, EMPLOYEES, PARTNERS, AGENTS, SUPPLIERS, OR AFFILIATES) BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE WEBSITE OR ANY SERVICES PROVIDED BY US, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF PLOINKS, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Ploinks, Inc.’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.


Exclusions

Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to you. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.


Assignment

You may not assign or transfer any of your rights or obligations under these Terms to another party without our prior written consent, and any such assignment by you without Ploinks, Inc.’s consent will be void. Plonks, Inc. may assign or transfer any of its rights to any of its affiliates or subsidiaries, or to any successor-in-interest of any business associated with the Services.


Severability

If any provision of these Terms of Use is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.


Governing Law

Any claims or disputes arising out of or relating to these Terms or their subject matter, including tort and statutory claims and disputes, shall be governed and construed in accordance with the laws of Texas, United States, without regard to its conflict of law provisions, unless otherwise required by a mandatory law of any other jurisdiction.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Website, and supersede and replace any prior agreements we might have had between you and us regarding the Website.


Disputes

If a problem or dispute arises, let’s first try to work things out informally. Please contact us directly via email or U.S. postal mail at Ploinks, Inc., 101 W. Renner Road, Suite 300, Richardson, Texas 75082.


Forum and Venue

If we cannot find a mutually agreeable solution within 30 days after either party receives a notice from the other, Ploinks, Inc. and you agree that any judicial proceeding to resolve any disputes, claims, or actions relating to these Terms or the Website will be brought in the federal or state courts located in (or within 75 miles of) Richardson Texas, subject to the provisions in the “Mandatory Binding Arbitration Agreement” that are set forth in the section below. Both you and Ploinks, Inc. consent to the exclusive venue and personal jurisdiction in such courts. If you opt-out of the agreement to arbitrate following the procedure (see below) or in the event of a dispute that is an Excluded Dispute (as defined below) or if the agreement to arbitrate is found to be unenforceable in a judicial or arbitration proceeding, you and Ploinks, Inc. agree nonetheless to be subject to these “Forum and Venue” provisions.


MANDATORY BINDING ARBITRATION AGREEMENT

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT CONTAINS ADDITIONAL TERMS AND PROVISIONS THAT APPLY TO UNITED STATES RESIDENTS. IF YOU ACCESS THE WEBSITE WHILE LOCATED IN THE UNITED STATES, YOU MUST SUBMIT TO BINDING ARBITRATION OF ALL DISPUTES, OTHER THAN: (i) THOSE DISPUTES THAT INVOLVE INTELLECTUAL PROPERTY AND (ii) THOSE DISPUTES THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. THIS MEANS YOU ARE WAIVING YOUR RIGHT TO HAVE CERTAIN DISPUTES RESOLVED IN COURT BY A JUDGE OR JURY. FINALLY, THIS SECTION SPECIFIES THAT YOU WAIVE YOUR RIGHT TO HAVE ANY DISPUTE HEARD AND RESOLVED AS A CLASS ACTION, CLASS ARBITRATION, OR A REPRESENTATIVE ACTION.

(a) A “Dispute” means any controversy, claims or disputes arising out of or relating to these Terms or a breach thereof. A “Dispute” does not include “Excluded Dispute” (as defined immediately below).

(b) An “Excluded Dispute” means any dispute relating to the enforcement or infringement of your or our intellectual property rights (such as copyrights, trademarks, service marks, domains, logos, trade dress, trade secrets, and patents). For purposes of clarification and notwithstanding the foregoing, Excluded Disputes do not include Disputes relating to, arising out of, or in any way in connection with your rights of privacy and publicity.

(c) If a the Dispute has not been resolved within sixty (60) days after service of a written notice of the Dispute by either you or us, such Dispute will be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in effect at the time the arbitration is started, including the Optional Rules for Emergency Measures of Protection and the Supplementary Procedures for Consumer-Related Disputes (together, the “AAA Rules”). The arbitration will be presided over by a single arbitrator selected in accordance with the AAA Rules. The AAA Rules, information regarding initiating a Dispute, and a description of the arbitration process are available at www.adr.org. The arbitrator will decide whether a Dispute can be arbitrated. The allocation of fees and costs for such arbitration shall be determined in accordance with the AAA Rules. The place of arbitration shall be within 75 miles of Richardson, Texas or such other location in the United States determined by Ploinks, Inc. in its sole discretion. Texas law shall apply. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees may be awarded to the prevailing party in any arbitration.

(d) No Class Actions, Class Arbitrations, or Representative Actions for Users Located in the United States. Ploinks, Inc. and you each agree that if you are a Ploinks® user located in the United States, Ploinks, Inc. and you may bring Disputes against the other party only on your own behalf as a person (or in our case, an entity acting on our behalf), and not as plaintiff or a class member in a class, nor otherwise on behalf of any other person, entity, or any class of people. In connection with any Dispute, Ploinks, Inc. and you each agree not to participate in a class action, a class-wide arbitration, any action brought in a private attorney general or representative capacity, or any other form of consolidated action.

(e) Exceptions to Agreement to Arbitrate. Notwithstanding the foregoing, either you or Ploinks, Inc. may bring an individual action in small claims court. In addition, either you or Ploinks, Inc. may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or for intellectual property infringement (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction and venue of the state and federal courts located in (or within 75 miles of) Richardson, Texas to resolve your claim.

(f) Opt-Out Procedure. You may opt out of this agreement to arbitrate. If you elect to opt out of this agreement to arbitrate, neither Ploinks, Inc., nor you may require the other party to participate in an arbitration proceeding. In order to opt out of this agreement to arbitrate, you must notify us in a writing signed by you that is postmarked within 30 days of the date that you first accepted our Terms or the date you became subject to this arbitration provision, whichever is later. You must send your written election to opt-out of the agreement to arbitrate to the following address, which we may update from time to time:


Ploinks, Inc.
Attn: Arbitration Opt-Out
101 W. Renner Road. Suite 300
Richardson, TX 75082


In addition, in order to opt-out of the agreement to arbitrate you must include the following in your notice to opt-out to us: (1) your name, the email you used to set up your account, and the residential address where you live; (2) the mobile phone number(s) associated with your account with Ploinks, Inc.; and (3) a clear statement that you want to opt out of the agreement to arbitrate as set forth in these Terms of Use. You understand that while you may opt-out to the agreement to arbitrate and continue to use our Website, you may not opt-out of the other remaining terms set forth in these Terms of Use and continue to use our Website. The rest of the Terms will continue to apply to you.

(g) Right to Waive. Any rights and limitations set forth in this section concerning the agreement to arbitrate may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this agreement to arbitrate or the Terms of Use.

(h) Severability. If the prohibition against class actions and other Disputes brought on behalf of third parties is found to be unenforceable for a particular Dispute, then, except for this provision (h) (which will continue to apply), all of the other provisions under the caption “MANDATORY BINDING ARBITRATION AGREEMENT” will be null and void but only with respect to that Dispute.

(i) Survival. This agreement to arbitrate will survive the termination of your relationship with Ploinks, Inc.


Waiver of Jury Trial

YOU AND PLOINKS, INC. WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JURY and elect instead to have any disputes be resolved by a judge. NOTE: This paragraph does not apply to Disputes you agree to arbitrate (which will be governed by the MANDATORY BINDING ARBITRATION AGREEMENT section set forth above.

One Year Limitation to Start Legal Proceedings Concerning Certain Disputes. You and we agree that for any Dispute (other than Excluded Disputes which consist of any dispute relating to the enforcement or infringement of your or our intellectual property rights [such as copyrights, trademarks, domains, logos, trade dress, trade secrets, and patents]), either Ploinks, Inc. or you, as the case may be, must commence an judicial legal proceeding or arbitration proceeding (whichever is applicable) within one year after the date the Dispute first arose; otherwise, such Dispute is permanently barred, which means that if Ploinks, Inc. or you do not commence a judicial legal proceeding or an arbitration proceeding within one year after the date


Injunctive and Equitable Relief

You and Ploinks, Inc. agree that under no circumstances shall the arbitration or informal dispute provisions set forth above be applicable where Ploinks®, Inc. seeks injunctive or equitable relief for all claims and disputes concerning alleged infringement or unlawful use or abuse of Ploinks, Inc.’s intellectual property, including copyrights, trademarks, trade names, logos, trade secrets, or patents, whether owned or licensed by Ploinks, Inc. without Ploinks, Inc.’s consent. Ploinks, Inc. has the right to immediately proceed to a court in the forum and venue of its choice in its sole and absolute discretion in order to protect its intellectual property rights. The phrase “all claims and disputes” in this paragraph includes claims and disputes that arose before the effective date of these Terms. Also, for purposes of this paragraph, “Ploinks Inc.” shall means Ploinks, Inc. and its affiliates (including its parent company and sister companies, as applicable) and licensors.


Changes

We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Website after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Website.


Contact Us

If you have any questions about these Terms, please contact us. You may reach us by email at legal@Ploinks.com.


Entire Agreement

The Terms constitute the entire agreement between you and Ploinks, Inc. regarding your use of the Website and supersedes all prior and contemporaneous written or oral agreements between you and Ploinks, Inc. regarding your use of the Website.

You may be subject to additional terms and conditions that apply when you use or purchase other Ploinks, Inc.'s services, which Ploinks, Inc. will provide to you at the time of such use or purchase.

Finally, these Terms were written in English. If you are reading these Terms in another language, then to the extent the foreign translation version of these Terms conflicts with the English version, the English version of the Terms will control. Please bear in mind that when using an online service to translate these Terms or our Privacy Policy you may be reading a version of the Terms that contains errors and inaccuracies.



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