Last Modified: September 6, 2022
Welcome to PollenMobile.io! These Terms of Use Conditions (these “Terms”) are an agreement entered into by and between you (“you” or “your”) and Pollen Mobile LLC (“Pollen,” “we,” or “us”). These Terms, together with any documents they expressly incorporate by reference, describe your rights and responsibilities as a Pollen user (“User”) and govern your access to and use of PollenMobile.io including any content, functionality and services offered on or through PollenMobile.io (the “Website”), the Pollen mobile applications (the “Apps”), and your purchase and/or use of our online services, software, cloud, hardware, eSims, Products (as defined below), documentation and other products (both tangible and intangible) whether provided by us, our affiliates or any other third-party vendors, on or in connection with the Products, Website, Apps, or an affiliate’s site (collectively, the “Services”). These Terms, together with any amendments and any additional agreements you may enter into with Pollen in connection with the Services, shall constitute the entire agreement between you and Pollen concerning the Services (collectively, the “Agreement”). By accessing, purchasing or using the Services, or by clicking a button or checking a box marked “Purchase” or “I Agree” (or something similar), or by accepting any purchase order or statement of work (“Order”) that expressly references these Terms, you signify that you have read, understood, and agree to be bound by these Terms and to the collection and use of your information as set forth in our Privacy Notice.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 11.2 (THE “ARBITRATION AGREEMENT”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 11.3 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 11.2, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.
YOU UNDERSTAND THAT USE OF OUR SERVICES AND/OR PRODUCTS MAY SUBJECT YOU TO CERTAIN FEDERAL, STATE OR LOCAL LAWS, INCLUDING WITHOUT LIMITATION, THE RULES, REGULATIONS AND/OR ORDER OF FEDERAL COMMUNICATIONS COMMISSION (THE “FCC”) AND OTHER FEDERAL OR STATE REGULATIONS APPLICABLE TO YOUR USE OF THE SERVICES AND/OR PRODUCTS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, POLLEN EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY TO YOUR COMPLIANCE OBLIGATIONS WITH RESPECT TO SUCH REGULATIONS. IN ADDITION, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THESE TERMS EXPRESSLY LIMIT THE LIABILITY THAT WE HAVE TO YOU AND DISCLAIMS ANY AND ALL WARRANTIES AS TO THE SATISFACTION, OUTCOME OR RESULTS FROM YOUR USE OF THE SERVICES AND/OR PRODUCTS.
1. Our Services
1.1 Eligibility
This is a contract between you and Pollen. You must read and agree to these Terms before using the Services. If you do not agree, you may not use the Services. You may use the Services only if you can form a binding contract with Pollen, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Services by anyone under 18 is strictly prohibited and in violation of these Terms. The Services are not available to any Users previously removed from the Services by Pollen.
1.2 User Accounts
Your account on the Services (your “User Account”) gives you access to the Services that we may establish and maintain from time to time. We may maintain different types of User Accounts for different types of users. You acknowledge that you do not own the User Account. You may not use another User’s Account without such User’s permission. You are solely responsible for the activity that occurs on or associated with your User Account, and you must keep the User Account password(s) strong and secure. You should notify us immediately of any breach of security or unauthorized use of the User Account. Any individual with administrator-level access to the User Account can modify the User Account settings, access and billing information. We will not be liable for any losses caused by any unauthorized use of the User Account, or for any changes to the User Account, including your ability to access the User Account or the data, information or other content associated with the User Account (“User Account Content”) (defined below), made by any individual with administrator-level access to the User Account.
1.3 Limited License
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services for your internal, noncommercial use only and as permitted by the features of the Services. Pollen reserves all rights not expressly granted herein in the Services and the Pollen Content (as defined below). Pollen may terminate this license at any time for any reason or no reason.
1.4 Pollen Products and Regulatory Disclaimer
Subject to your full compliance with these Terms, you may be permitted to construct and/or purchase certain hardware and related components, including tangible and/or physical: (a) radios and/or antennas that wirelessly transfer data between internet service providers and Users (each, a “Flower”); (b) portable devices used to validate Pollen network coverage (each, a “Bumblebee”); (c) SIMs or eSIMs which allow Users to connect to the Pollen network privately (“Hummingbird”); and (d) physical SIMs or eSIMs which allow Users to connect to the Pollen network and/or validate Pollen network coverage (“Honeybee”, and together with Flower, Bumblebee and Hummingbird, the “Products”). If any Product which was purchased from Pollen under an applicable Order does not operate as explicitly set forth in the documentation provided by Pollen, you may return the Product to us, and we will provide you with a refund for the cost of such product at our sole discretion, which shall be your sole remedy and our sole responsibility with respect to the Products, provided, however, that in no event will a refund be issued for a Product which has been used to earn PollenCoin (“PCN”). To fullest extent permissible by law, Pollen disclaims any and all warranties to Products not purchased directly from Pollen under an applicable Order.
Customer acknowledges that the Services are subject to the regulations promulgated by the Federal Communications Commission (“FCC”) under 47 CFR 96 (the “Citizens Broadband Radio Service” or “CBRS”), which is available at https://www.ecfr.gov/current/title-47/part-96. For any equipment or devices used in connection with the Services which you do not obtain from Pollen, you represent, warrant and covenant that such equipment or devices will (a) be compatible with the Services; (b) be duly authorized in accordance with the FCC’s equipment authorization rules; and (c) conform to the applicable technical requirements set forth in 47 CFR Part 96, Subpart E. For all equipment and devices, regardless of whether obtained from Pollen or a third party, you acknowledge and agree that it is solely and entirely your responsibility, not Pollen’s, to ensure that any Product you own, lease or otherwise use in connection with the Services is installed, registered, operated and maintained in accordance with the rules and regulations governing the CBRS, and is operated in such a manner so as not to cause harmful interference to any other party. You further acknowledge and agree that Pollen has no obligation to monitor, assess or ensure any User’s compliance with the rules and regulations of the CBRS; provided, that in the event that Pollen discovers or determines that you or any User has failed to comply with such rules and regulations, Pollen may immediately suspend the Services and/or provide you with written notice of such violation, which shall be cured within ten (10) business days of such notice. Pollen shall not be liable to you or any User for any damages resulting from, or relating to, your or any User’s failure to fully comply with the rules and regulations of the FCC, CBRS or any other federal or state regulations applicable to your use of the Services and/or Products. The Products have not been designed to conform with, and may not conform with rules and regulations that are applicable to the Product and Services outside of the United States including non-U.S. rules and regulations regarding consumer electronics (such as CE marking requirements in the European Union). The Products and Services provided hereunder are not intended to be, and may not be, used outside of the U.S. and Pollen disclaims all liability for such use.
1.5 Product Order Terms
Each Order a User enters into with Pollen shall describe the Products being purchased, specify the name and address of the Product purchaser (the “Customer”), and expressly incorporate these Terms. For clarity, Pollen shall have no responsibility or liability related to the fulfillment of any Product purchase orders entered into with a third-party provider or seller. Unless otherwise expressly provided on the face of the Order, the following Order terms and conditions (“Order Terms”) shall apply.
a) Delivery. The Products will be delivered within a reasonable time after Pollen confirms Customer’s payment of the amount due in the applicable Order, subject to Product availability. Pollen and/or its affiliates shall not be liable for any delays, loss or damage in transit. Products may be shipped to Customer or made available for pick up from Pollen headquarters located at 1186 Folsom St., San Francisco, CA 94103 (“Pollen HQ”), with the method for delivery to be selected at Pollen’s discretion.
i) Shipping by Carrier. Delivery shall be made FCA San Francisco, Pollen HQ (INCOTERMS® 2020) (the “Delivery Point”) using Pollen’s standard methods for packaging and shipping such Products. Customer shall be responsible for any carrier shipping fees.
ii) Shipping by Pollen. Delivery shall be made FCA Delivery Point using Pollen’s standard methods for packaging and shipping such Products. Customer shall be responsible for all costs and expenses associated with Pollen’s delivery of the Products.
iii) Shipping by Affiliate. Delivery shall be made in accordance with the applicable Pollen affiliate’s shipping terms. Customer acknowledges and agrees that Pollen shall not be responsible or liable for claims related to the delivery of Products by Pollen affiliates.
iv) Customer Pick-Up. Pollen may allow Customer to pick up Products from Pollen HQ at a reasonable time to be determined by Pollen. Customer shall provide all equipment and personnel necessary to load and transport the Products and shall be responsible for all costs and expenses associated with picking up the Products. Title and risk of loss shall pass to Customer upon Customer’s initiation of product pick up from Pollen HQ or at the pickup time determined by Pollen, whichever is earlier.
b) Non-Delivery. The quantity of any installment of Products as recorded by Pollen or a Pollen affiliate on dispatch is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary. Pollen shall not be liable for any non-delivery of Products (even if caused by Pollen’s negligence) unless Customer gives written notice to Pollen of the non-delivery within thirty (30) days of the date when the Products would in the ordinary course of events have been received. Any liability of Pollen for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the applicable Order to reflect the actual quantity delivered. c) Quantity. If Pollen delivers to Customer a quantity of Products of up to 20% more or less than the quantity set forth in the Order, Customer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products the price set forth in the Order adjusted pro rata. d) Title and Risk of Loss. Title and risk of loss passes to Customer upon arrival of the Products at the Delivery Point, provided, however that when shipped by an affiliate, title and risk of loss shall pass to Customer according to the affiliates shipping terms As collateral security for the payment of the amount due under an applicable Order, Customer hereby grants to Pollen a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Customer will execute such financing statements and other instruments as Pollen may require to perfect the security interest granted pursuant to this Section. e) Inspection and Rejection of Nonconforming Products. Customer shall inspect the Products within one (1) business day of receipt (“Inspection Period”). Customer will be deemed to have accepted the Products unless it notifies Pollen in writing of any Nonconforming Products (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as required by Pollen. “Nonconforming Products” means only the following: (i) Product shipped is different than identified in Customer’s Order; or (ii) Product's label or packaging incorrectly identifies its contents. If Customer timely notifies Pollen of any Nonconforming Products, Pollen shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith, provided, however, that in no event will a Pollen replace a Nonconforming Product or issue a refund for a Nonconforming Product which has been used to earn PCN. Customer shall ship, at its expense and risk of loss, the Nonconforming Products to Pollen's facility located at the address provided in the Order. If Pollen exercises its option to replace Nonconforming Products, Pollen shall, after receiving Customer’s shipment of Nonconforming Products, ship to Customer, at Customer's expense and risk of loss, the replaced Products to the Delivery Point. Customer acknowledges and agrees that the remedies set forth in this Section 1.5(e) are Customer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided in this Section 1.5(e), all sales of Products to Customer are made on a one-way basis and Customer has no right to return Products purchased under the Agreement to Pollen.
f) Payments. Customer shall pay Pollen the amount due, on or before the payment due date, each as set forth in the applicable Order. Customer shall make all payments in US dollars. If Customer fails to pay the amount due by the payment due date set forth in an applicable Order, without limiting Pollen’s other rights and remedies: (i) Pollen may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) Customer shall reimburse Pollen for all costs incurred by Pollen in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. g) Taxes. The amount due and any other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Pollen’s income. Without limiting the generality of the foregoing, in the event that any application, service or other use of the Services or Products by you, any User or any Customer results in any requirement to register with any taxing authority or regulatory body or to pay, collect or remit any tax, fee, assessment, surcharge, levy, contribution or other amount, you shall be solely responsible, as against Pollen, for any such registration and payment, collection or remission.
1.6 Restrictions and Acceptable Use
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the Pollen servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Pollen grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; (xii) modifying, altering, reverse engineering, disassembling or decompiling all or any portion of the Services (including the Products); (xiii) using the Services and/or Products in a manner that violates any applicable federal, state and local laws, rules and/or regulations (including the FCC and Citizens Broadband Radio Service); (xiv) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; or (xv) using the Services and/or Products to transmit, display, perform, distribute or otherwise use any third party intellectual property without authorization of the intellectual property rights holder.
1.7 User Responsibilities
Notwithstanding any other responsibilities or obligations that you may have under these Terms, you acknowledge and agree that: (i) you are solely responsible for all use of the Services associated with your User Account, whether by you or someone using the Services with or without your permission; (ii) you shall not use the Services, directly or indirectly, for any unlawful purpose, including without limitation, violation of copyright laws; and (iii) you are solely responsible for ensuring that any and all use of the Services complies with terms and conditions of all applicable third-party agreements (including agreements with internet service providers and/or housing providers) as well as all applicable federal, state and local rules and regulations (including without limitation the regulations of the FCC governing the Citizens Broadband Radio Service), and Pollen shall have no liability in the event that you fail to do so, even if actions taken by a third party in response to your breach reduce or eliminate the value of the Services.
1.8 Changes to the Services
We may, without prior notice, change the Services (including, for example, any changes relating to the tokenomics of PCN), stop providing the Services or features of the Services, to you or to Users generally; or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services (including your User Account), restrict your access to the Services (for example, by throttling your connection) or remotely turn off or disengage the Products without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
1.9 Disputes with Other Users
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Pollen shall have no liability for your interactions with other Users or for any User’s action or inaction, including with respect to the resale by of a Product by a User or the purchase of a Product from a User.
1.10 Installation; Premises Access
You may be eligible to receive certain installation services from us or our recommended installers (“Installers”). In order to provide such installation services, you agree to allow Installers the right, at reasonable times, to enter your residential or commercial building or site (the “Premises”) for purposes of installing, maintaining, servicing, inspecting, upgrading and/or removing the Services. You acknowledge and agree that you are either an owner of, or legal tenant in the Premises, and as such have the right to allow Installers to enter and make such modifications to the Premises in connection with the Services. While such Installers will make reasonable efforts to accommodate building access or homeowner association policies (if provided by you), you acknowledge and agree that you are solely responsible for any and all violations of such policies. The parties further agree that, to the fullest extent under applicable law, that Installers shall be considered invitees at all times when on the Premises and for all purposes of premises liability. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, AND TO THE FULLEST EXTENT PERMITTED BY LAW, POLLEN OR ITS AFFILIATES AND THE INSTALLERS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO PERSONS, PROPERTY OR THE PREMISES RESULTING FROM SUCH INSTALLATION ACTIVITIES.
1.11 Remote Access
Pollen may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services (“Updates”). To provide the Updates and render any other Services, Pollen may access your computer, hardware, software, and files (“Remote Access”). You consent to the Remote Access. If you do not want to allow Remote Access, your remedy is to terminate your User Account and stop using the applicable Products and Services. If you do not terminate a previously created User Account, you acknowledge that Pollen may continue such Remote Access. You acknowledge that you may be required to allow Remote Access to use the Services. Your continued use of any Services is your agreement to these Terms with respect to Remote Access and any updated Services. You hereby agree that Pollen shall not be responsible or liable for any damages, data loss, data breach, or other property or other injury of any nature whatsoever arising from, in whole or in part, Pollen’s Remote Access, and indemnify and hold Pollen, its owners, shareholders, members, partners, directors, officers, agents, employees, and contractors, harmless from all damage associated with the implementation and use of Remote Access.
1.12 Communications
By providing Pollen your email address you consent to our using the email address to send you Services-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Services and special offers. If you do not want to receive such email messages, you may opt out; opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
2. Our Proprietary RightsThe Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the “Pollen Content”), and all intellectual property rights related thereto, are the exclusive property of Pollen and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Pollen Content. Use of the Pollen Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Pollen under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Pollen does not waive any rights to use similar or related ideas previously known to Pollen, or developed by its employees, or obtained from sources other than you.
The Services contain data, information, and other content not owned by you, such as daily rewards (“Pollen Rewards”). You understand and agree that regardless of terminology used, Pollen Rewards represents a limited license right governed solely by the terms of these Terms and available for distribution at our sole discretion. You acknowledge that you do not own the User Account you use to access the Services, nor do you possess any rights of access or rights to data stored by or on behalf of Pollen on Pollen servers, including without limitation any data representing or embodying any or all of your Pollen Rewards. You agree that Pollen has the absolute right to manage, regulate, control, modify and/or eliminate Pollen Rewards as it sees fit in its sole discretion, in any general or specific case, and that Pollen will have no liability to you based on its exercise of such right. All data on Pollen’s servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, USER ACCOUNT HISTORY AND USER ACCOUNT CONTENT RESIDING ON POLLEN’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN POLLEN’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. POLLEN DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON POLLEN’S SERVERS.
3. Our Privacy and Security Policies
3.1 Privacy
We care about your privacy. By using the Services you acknowledge that we may collect, use, and disclose your personal information and aggregate and/or anonymized data as set forth in our Privacy Notice, available at https://www.pollenmobile.io/privacy-policy, and acknowledge that you may have your personal information collected, used, transferred to and processed in the United States.
3.2 Security
Pollen uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
4. Payment for Products and Services
Our Services and/or Products may be available for purchase on Shopify, which acts as a storefront and payment processor. In the event that you purchase our Services on Shopify, you agree to be bound by Shopify’s Terms of Service, which are available at https://www.shopify.com/legal/terms.Our Services and/or Products may also be available to purchase directly through us or our affiliates, or through third-party vendors. Except as expressly provided in an applicable purchase order, any such Product purchase will be subject to Section 1.5 (Order Terms) of these Terms.
5. Additional Terms for Apps
5.1 Apps.
We may make Apps available through which you may access the Services via a mobile device. To use any Apps, you must have a mobile device that is compatible with the Apps. We do not warrant that the Apps will be compatible with your mobile device. You may use mobile data in connection with the Apps and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. We hereby grant you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Apps for one (1) User Account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Apps, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Apps to any third party or use the Apps to provide time sharing or similar services for any third party; (iii) make any copies of the Apps; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Apps, features that prevent or restrict use or copying of any content accessible through the Apps, or features that enforce limitations on use of the Apps; or (v) delete the copyright and other proprietary rights notices on the Apps. You acknowledge that we may from time-to-time issue upgraded versions of the Apps and may automatically electronically upgrade the version of the Apps that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Apps is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Apps or any copy thereof, and Pollen or our third-party partners or suppliers retain all right, title, and interest in the Apps (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. We reserve all rights not expressly granted under these Terms. If the Apps is being acquired on behalf of the United States Government, then the following provision applies. The Apps will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Services and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The Apps originates in the United States and is subject to United States export laws and regulations. The Apps may not be exported or re-exported to certain countries, or those persons or entities prohibited from receiving exports from the United States. In addition, the Apps may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Apps and the Services.
5.2 Apps from Apple App Store.
The following applies to the iOS App, which may be acquired from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms are solely between you and Pollen, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Pollen as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Pollen as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Pollen, 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 these Terms. You and Pollen acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
5.3 Apps from Google Play Store.
The following applies to the Android App, which may be acquired from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that these Terms are between you and Pollen only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Pollen, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms; and (vi) you acknowledge and agree that Google is a third-party beneficiary to these Terms as they relate to Pollen’s Google-Sourced Software.
6. Third-Party Links and Information
The Services may contain third-party products or links to third-party materials that are not owned or controlled by Pollen. Pollen does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or services from the Services, use third-party products with the Services, or share your personal information on or through any third-party website or services, you do so at your own risk, and you understand that these Terms and Pollen’s Privacy Notice do not apply to your use of such products or such sites. You expressly relieve Pollen from any and all liability arising from your use of any third-party website, services, products or content. Additionally, your dealings with or participation in promotions of advertisers found on the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Pollen shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
7. Service LimitationsYou acknowledge that certain CBRS Services, including those provided by Pollen, must protect certain other spectrum users from harmful interference, but are generally not entitled to protection from harmful interference from third parties. You agree that Pollen will have no liability to you or any User or Customer under your account, nor any of your customers, for any interference to the Services, any loss or delay in transmission or reception using the Services, or any Claims (as defined below) arising out of either of the foregoing.
Pollen may, at any time, revise its coverage area or other aspects of the Services. Pollen will use commercially reasonable efforts to provide thirty (30) days’ advance notice of such changes in accordance with Section 12.2 (Notification Procedures and Changes to these Terms), provided, however, that if such changes are a result of changes in applicable law (including without limitation, FCC rules) or loss of property rights necessary to operate from one or more locations, such changes may become effective without notice.
You are solely responsible for your business activities using the Services and/or Products. Without limiting the generality of the foregoing, Pollen makes no representation of any kind that you will be able to use the Services and/or Products to generate revenue.
8. Indemnity
You agree to defend, indemnify and hold harmless Pollen, its parent, and their respective affiliates, subsidiaries, agents, licensors, managers, employees, contractors, officers and directors (collectively, the “Pollen Indemnitees”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) (collectively, “Claims”) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any provision of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) any content that is submitted by you including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Services with your unique username, password or other appropriate security code. In the event that any Pollen Indemnitee receives notice or discovers that it is subject to a Claim, Pollen will provide you with prompt notice of the same; provided that any failure or delay in providing notice will not excuse your compliance with this Section except to the extent that your defense of such Claim is actually prejudiced thereby. You will defend or settle such Claim with counsel of your choosing, reasonably acceptable to Pollen; provided that you will not agree to any settlement that admits liability on the part of any Pollen Indemnitee or imposes future obligations on any Pollen Indemnitee without Pollen’s prior written consent.
9. Warranty and Warranty Disclaimer
THE BUMBLEBEE DEVICES ARE COVERED BY THE LIMITED WARRANTY AVAILABLE HERE. SUBJECT TO THE FOREGOING, THE SERVICES AND/OR PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES AND/OR PRODUCTS IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND/OR PRODUCTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM POLLEN OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, POLLEN, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE PURCHASE AND USE OF THE SERVICES AND/OR PRODUCTS WILL GENERATE ANY MINIMUM OR EXPECTED RETURN ON INVESTMENT; THAT THE SERVICES AND/OR PRODUCTS WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES AND/OR PRODUCTS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT THE SERVICES AND/OR PRODUCTS WILL BE UNINTERRUPTED OR SECURE; THAT THE SERVICES AND/OR PRODUCTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THAT THE POLLEN CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE DISTRIBUTION OF PCN WILL BE TIMELY AND THAT THE AMOUNT OF PCN DISTRIBUTED WILL ACCURATE; OR THAT ANY DEFECTS OR ERRORS IN THE SERVICES, PRODUCTS OR POLLEN CONTENT WILL BE CORRECTED. ANY POLLEN CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES AND/OR PRODUCTS IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
FURTHER, POLLEN DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICES, AND POLLEN WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND PROVIDERS OF THIRD-PARTY PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL POLLEN, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS (COLLECTIVELY, THE “LIMITED PARTIES”) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICES. UNDER NO CIRCUMSTANCES WILL POLLEN BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM INSTALLER NEGLIGENCE, HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, POLLEN ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY: (I) ERRORS, MISTAKES, OMISSIONS OR INACCURACIES IN ANY CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM INSTALLER NEGLIGENCE OR YOUR ACCESS TO OR USE OF THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) FAILURE TO GENERATE A RETURN ON AN INVESTMENT IN THE SERVICES; (VI) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY; (VII) LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VIII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL THE LIMITED PARTIES BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID FOR THE SERVICES HEREUNDER OR $50.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF POLLEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
11.1 Governing Law.
You agree that: (i) the Services shall be deemed solely based in Delaware; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Delaware. These Terms shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 11.2 and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Delaware for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Delaware is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
11.2 Arbitration.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM POLLEN. This Section 11.2 (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and Pollen that arises out of or relates to, directly or indirectly, to any Claim, other than Claims for indemnification, between the Parties, including without limitation: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Services, including receipt of any advertising or marketing communications; (c) any transactions through, by, or using the Services; or (d) any other aspect of your relationship or transactions with Pollen, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your acceptance of these Terms.
If you are a new User, and if and only to the extent required by applicable law, you can reject and opt-out of this Arbitration Agreement within 30 days of accepting these Terms by contacting Pollen at support.pollenmobile.io with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any Claim, you agree to first contact us at support.pollenmobile.io and attempt to resolve the dispute with us informally. In the unlikely event that Pollen has not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by AAA before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or Delaware, unless you and Pollen agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and Pollen agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms, any provision of these Terms, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
Nothing in this Section shall be deemed as: preventing Pollen from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
11.3 Class Action/Jury Trial Waiver.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND POLLEN AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER POLLEN USERS. YOU AND POLLEN FURTHER AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND POLLEN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
12. General
12.1 Assignment.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without Pollen’s prior written consent, but may be assigned by Pollen without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
12.2 Notification Procedures and Changes to these Terms.
Pollen may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our Website, as determined by Pollen in our sole discretion. Pollen reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms. Pollen is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Pollen may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. Your continued use of the Services and/or Products after any such change, constitutes your acceptance of the new Terms and Conditions. If you do not agree to any of these terms or any future Terms and Conditions, do not use or access (or continue to access) the Services and/or Products.
12.3 Construction and Interpretation.
For purposes of these Terms, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (d) words denoting any gender include all genders. The parties intend these Terms to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
12.4 No Waiver.
No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Pollen’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
12.5 Force Majeure.
Pollen shall not be liable or responsible to you or any other Users, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any provisions of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Pollen including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
12.6 Relationship of Parties.
These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to these Terms except for Apple and Google as detailed in Sections 5.2 and 5.3. A person who is not a party to these Terms may not enforce any of its provisions under any applicable law.
12.7 Severability.
Except as otherwise stated in Section 11.2 (Arbitration), if any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.