Skypod® is an electronic communication platform that enables individuals to collect, store, integrate, transmit and share certain information to other individuals by utilizing certain digital services, and is operated by Skypod, LLC, a Florida limited liability company (“Skypod”, “us”, “our”, or “we”).
PLEASE READ: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH SKYPOD. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER ONLY AS PROVIDED BELOW.
NOTE TO INTERNATIONAL USERS: By using the Platform you represent and warrant that your use complies with applicable law and regulation in your jurisdiction, including, but not limited to legal capacity and any other applicable legal requirements in your jurisdiction for using the Platform and agreeing to our terms.
Our Platform was designed to help share memories and messages with your loved ones on a specific date in the future, as further explained herein. The aggregation of User Content (as defined below) into our proprietary digital time-capsules is called a “Skypod”, or for purposes of this Agreement, a “Pod”. The Skypod Platform empowers you to send a Pod, containing your User Content, to others, especially when you may not be able to deliver the same information in person. The Platform offers various digital services, namely, a website and application in which a User may upload, submit, store, share, receive, collect, capture and/or visualize the User’s ideas, texts, graphics, videos, data, information, files, and other similar other content (“User Content”), and transfer such User Content, by means of a Pod, to another person or entity on specific dates and times in the future, all of which may be designated by the User through the Platform.
SENDING AND RECEIVING PODS
Users must have a registered User Account in order to send or receive a Pod. Creating a Pod is simple. Once logged into your User Account, simply click “Create Pod”. During the Pod creation process, you will have the ability to choose a title and add cover image for your Pod, which is like placing a label and wrapping paper on a gift. Cover images are optional. Users also have the option of adding a message to their designated recipient(s), which can only be viewed once the Pod is opened, as further set forth below.
Users may then add User Content, such as photos, videos, and files then make them viewable on the time and date of your choosing. The price to store each Pod on the Platform until the designated delivery date is based on the storage requested by the User. Currently, a User may store up to 600MB of data in each Pod. Although most file formats are supported by our Platform, in the event that the file type which you are attempting to add to your Pod is not supported by the Platform, please contact us or re-format the file. Once your Pod is filled with the User Content that you want to deliver to your intended recipients, you may designate up to one hundred (100) recipients of a Pod. The number of designated recipients does not affect pricing for your Pod. Next, you must select an opening date, or the date in which the recipients of the Pod can view its contents (each an “Opening Date”). Each Pod must have a designated Opening Date. Skypod currently permits Users to set the Opening Date of their Pod on a date up to twenty-four (24) months in the future.
Once your Pod is sent, your recipients will immediately receive an email notification that they have received a Pod. Recipients must then (i) accept the Pod and (ii) create a User Account. Once a User Account has been created by a Recipient, they can view the title and cover of any accepted Pod and the applicable Opening Date, but not its contents. On the Opening Date, Users will receive a notification and will be able to open the Pod and view the User Content contained therein. Skypod will make the Pod available for to each recipient to view on the Platform for thirty (30) days from the designated Opening Date. During that time, Users may download the contents of such Pod or may elect to store the Pod on the Platform by paying applicable storage fees, as set forth from time to time on the Platform. You expressly acknowledge and agree that if you have paid for additional storage time for an applicable Pod prior to the date which falls thirty (30) days from the Opening Date, all data, including User Content, contained within the Pod will be deleted from the Platform and your ability to download the contents of such Pod will expire. Skypod disclaims any and all liability in connection with a User’s failure to or inability to download or access the contents of a Pod and/or the loss of any data, including User Content, contained therein. For assistance in accessing a Pod on or after the Opening Date, please contact us at firstname.lastname@example.org.
You acknowledge and agree that the Services are provided from the United States of America. By using and accessing the Services, you understand and agree to the storage of your Pods and the User Content contained therein and any other personal information in the United States. However, you understand that Users can access the Services (including User Content) from outside of the United States (subject to applicable law) and that nothing prohibits the processing of other information outside of the United States. Skypod does offer products that enable storage and/or processing of Pods outside of the United States.
Opening a User Account.
We may ask you for personal information when you register for an account on the application (“User Account”). User Accounts are intended for personal use only and you further acknowledge and agree that we are relying on the accuracy of your information to provide certain Services.
The Platform may allow you to create a User Account by logging into the Service via third party social networking sites, like Facebook. By doing so, you are confirming that you are the owner of any of these third-party social media accounts and that you are entitled to disclose your social media login information to us. You are giving us permission to collect your authentication information and other information that may be available on or through your social media account.
In the event that you misrepresent information about yourself, your User Account is subject to suspension or cancellation without notice to you.
Account Information; Submission of Content.
In order to use the Platform or access the Service, you hereby represent and warrant that you are able to completely understand, agree, and accept the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement. You further agree that you are fully in compliance with all the laws and regulations in the country that you reside and live in when you access and use the Platform. You agree to use the Service only in agreement with this Agreement and applicable law, and in a manner that does not violate our legal rights or the rights of any third-party(ies).
The Service is not intended for individuals who are under the age of eighteen (18) years old. IF YOU ARE UNDER 18 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER.
CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION
By accessing or signing up for the Services, you understand and consent to receiving communications from us electronically, such as: (a) notices about your use of the Services, including notices of violations of use; (b) updates to the Services and new features or products; (c) administrative messages and other information; and (d) advertising, marketing, and other materials regarding Skypod’s Service. You agree that any and all agreements between you and Skypod can be entered into and signed electronically in accordance with applicable law, and all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notice or other communications be in writing. Please review your settings in your User Account to control the messages you receive from us, or you may choose to opt-out of receiving advertising and marketing materials by unsubscribing from such communications by following the instructions in the message itself.
LICENSES TO USE THE PLATFORM
By permitting you to access to the Platform, we grant you a limited, non-transferable, non-exclusive and terminable license to access and use the Services for your personal use solely for the purposes contemplated herein, pursuant to this Agreement and during the term of this Agreement. Skypod also requires a license from you with regards to any User Content FOR THE SOLE PURPOSE OF OPERATING, ENABLING, AND IMPROVING THE SERVICES AND FOR COMPLIANCE WITH APPLICABLE LAWS. Solely for this explicit purpose and until you delete the User Content from the Platform, you agree and acknowledge that by using the Services, you grant us an unlimited, worldwide, royalty-free license to use, host, store, scan, search, sort, index, and create previews of any User Content. For the avoidance of doubt, Skypod will not sell or advertise any User Content.
You retain all ownership rights to any and all of your User Content. By transmitting and submitting any User Content while using the Services, you agree as follows:
- You are solely responsible for all information uploaded by you in connection with your use of the Services;
- You will not submit content that is copyrighted or subject to third-party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such content;
- You will abide by our “Acceptable Use Policy” as set forth below;
- You affirm we have the right to determine whether any of your User Content submissions are appropriate and comply with this Agreement, remove any and/or all of your submissions, and terminate your Account with or without prior notice; and
- You understand and agree that any liability, loss or damage that occurs as a result of the use of any User Content that you make available or access through your use of the Services is solely your responsibility. We are not responsible for any public display or misuse of your User Content.
By uploading or transmitting any User Content using the Services, you hereby grant to Skypod, its affiliates and service providers, a non-exclusive, royalty-free and worldwide license, consent and authorization to use such User Content in any way we may reasonably choose for the purposes of providing the Services, including, host, index, cache, tag, copy, transmit, excerpt, create derivative works and modify, in any form or media now known or hereinafter developed, as well as to share User Content with your designated recipients, and/or publish, distribute, and publicly display such User Content, as indicated by your preferences on your User Account. As a material condition for using the Services, you hereby warrant that you have the right to grant Skypod such license for such purposes.
Skypod respects the intellectual property of others and will respond to notices of alleged copyright infringement that comply with the law. We reserve the right to delete or disable any User Content alleged to violate copyright laws or this Agreement, and we reserve the right to terminate the account(s) of violators.
INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights and/or similar rights on the Services (including the software, wallpapers, Skypod content, photography, graphic design, typography, portraits, logos, trademarks, trade names, domain names, copyrights and patents) are vested in Skypod and/or its licensors and you are not allowed to use, remove, modify, copy, mirror, distribute, decompile, or reverse engineer any of it in any way.
Skypod is not responsible or liable for third party content published within the Services, in ad links to external websites or the content, products or services offered on external websites. You acknowledge and accept that all use outside the Services is at your own risk.
You will always respect and observe the good name and reputation of Skypod and ensure that your use of the Services will in no way prejudice any rights and/or the good name and reputation of Skypod and its licensors.
LINKS TO THIRD-PARTY WEBSITES
We, our affiliates, or contracted third parties may also offer new, updated or additional services (“Additional Services”) through the Services from time to time. Your use of those Additional Services will be governed by the terms of this Agreement, but may also be subject to additional terms and conditions, which will be posted from time to time and with which Users must comply. If a link to any Third-Party Products directs you to a website or application other than the Platform, than you expressly agree that your use of such Third-Party Products are governed by the terms of any such service provider.
Fees for our Services will be clearly posted on our Platform and may be amended from time to time, in our sole and absolute discretion. You are responsible for all applicable taxes, and Skypod will charge tax when required to do so. Any fees charged in connection with the Services are exclusive of all taxes, levies or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies or duties. Depending on the payment method you choose, the issuer of the payment method may charge you certain fees relating to the processing of your payment.
BILLING AND PAYMENT
In order to use the Service, you must provide us with current, complete, accurate and authorized payment method information (e.g. credit card information). You authorize us to charge your provided payment method for the Services you have selected and for any paid feature(s), such as sending a Pod or storage of a Pod, that you choose. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) if applicable, you have elected a subscription-based or recurring service, on a recurring basis. To the extent Skypod has not received payment for any applicable Services, in order to bring your User Account up to date, we may bill you simultaneously for both past due and current amounts. You understand that failure to pay any charges or fees may result in the suspension or cancellation of your Services.
ACCEPTABLE USE POLICY
You agree you will not, nor will you encourage others or assist others to, harm the Services or use the Services to harm others. For example, you may not use the Services to harm, threaten, or harass another person, organization, or Skypod, nor may you build a similar service or website. You must not: (a) damage, disable, overburden, or impair the Services (or any network connected to the Services); (b) resell or redistribute the Services or any part of it; (c) use any unauthorized means to modify, reroute, or gain access to the Services or attempt to carry out these activities; (d) use any automated process or service (such as a bot, a spider, or periodic caching of information stored by Skypod) to access or use the Services; (e) use the Services beyond the features allocation and amounts provided in that Service or in violation of our fair use policy; (f) use the Services to, and/or cause Skypod to, violate any law or distribute any malware, illegal or malicious content or; or (g) distribute, post, share any content illegally or without permission.
In order to protect the Services and our other customers, and to stop you from breaching the terms of this Agreement, we retain the right to block or otherwise prevent delivery of any type of file, email, or other communication to or from the Services.
Skypod also reserves the right to deactivate, change and/or require you to change your User Account and any custom or vanity URLs, custom links, or vanity domains you may obtain through the Services.
You also agree that if you learn of any unauthorized or unacceptable use of any account, User Content, or the Services, you will promptly contact Skypod and take all reasonable steps to cooperate with Skypod and assist in the termination of such use.
VIEWABLE USER CONTENT
Monitoring User Content
If at any time, we choose, in our sole discretion, to monitor User Content, Skypod assumes no responsibility for the User Content, no obligation to modify or remove any inappropriate User Content, and no responsibility for the conduct of the User submitting any such content. You acknowledge that Skypod may or may not pre-screen Pods, but that we shall have the right (but not the obligation) in our sole discretion to pre-screen, refuse, or remove any Pod, which we believe, in our sole and absolute discretion, violates the terms of this Agreement. Without limiting the foregoing, Skypod may, at any time and without prior notice, remove any Pods, including any message or submission contained herein, that, in the sole judgment of Skypod, violates this Agreement or is otherwise objectionable. We may further suspend or terminate your right to use the Services, in our sole discretion. You agree that you must evaluate, and bear all risks associated with the use the Services, including any reliance on the accuracy, completeness, usefulness or legality of such use of the Services.
ACCESS, SECURITY AND RESTRICTIONS; PASSWORDS.
You are prohibited from violating or attempting to violate the security of the Platform, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Platform or any portion thereof without authorization, in violation of this Agreement or in violation of applicable law.
You may not use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on the Platform, deep-link to any feature or content on the Platform, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Platform.
Violations of system or network security may result in civil or criminal liability. Skypod will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Platform or any activity being conducted on this Platform.
In the event access to the Platform or a portion thereof is limited requiring a user ID and password (“Protected Areas”), you agree to access Protected Areas using only your user ID and password as provided to you by Skypod. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third-party. You agree that you are fully responsible for all activity occurring under your user ID. You agree to defend, indemnify and hold Skypod harmless from and against all third-party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by Skypod arising out of your breach of this Agreement or violation of applicable law, your use or access of the Platform, or access by anyone accessing the Platform using your user ID and password.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you will not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (b) you will not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you will not access the Services in order to build a similar or competitive service; and (d) except as expressly stated in these terms, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Services will be subject to the terms of this Agreement.
ACCEPTABLE USE POLICY
In addition to any other restrictions outlined above, you agree that you will not:
- Use the Services for, to encourage or promote any purpose that is illegal, beyond the scope of their intended use, or otherwise prohibited in these terms;
- Use, upload or store any User contact which: features CSAI (child sexual abuse imagery); is obscene, defamatory, libelous, slanderous, profane, indecent, discriminating, threatening, abusive, harmful, lewd, vulgar, or unlawful; promotes racism, violence or hatred; is factually inaccurate, false, misleading, misrepresenting or deceptive; you don’t hold the rights to; infringes, violates or misappropriates intellectual property rights, privacy rights, including data protection rights, and/or any other kind of rights; infringes on or violates any applicable law or regulation; and/or constitutes ‘hate speech’, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation, language or another characteristic of such individual or group.
- Use, upload or store any individually identifiable health information;
- Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Services, use of the Services, access to the Services, or content obtained through the Services, for any purpose other than as the services offered by Skypod.
- Use the Services in any manner that could interfere with, prevent, or impair other Users from fully enjoying the Services, or in any manner that could damage, disable, or harm the functioning of the Services, including, but not limited to viruses, malware, adware, worms or other malicious code;
- Send any unsolicited or unauthorized advertising, spam, solicitations or promotional materials;
- Use any robot, spider, crawler, scraper or other automated means or interface not provided by Skypod to access the Services or to extract any data from the Platform;
- Engage in any abusive, harassing, stalking, intimidating, or predatory conduct or attempt to collect any personal information of any User of or third-party to the Services;
- Undertake or attempt to undertake any illegal or illicit activity through the Platform;
- Compromise the security of the Services through hacking or any other means;
- Use or attempt to use another User’s account, without authorization;
- Attempt to circumvent any content filtering techniques we employ, or attempt to access areas/features of the Services that are unauthorized;
- Attempt to indicate in any manner that you have a relationship with or endorsement from us without our express written consent to do so;
- Impersonate any person or entity or otherwise misrepresents your affiliation with a person or entity;
- Violate the publicity, privacy or data protection rights of others, including by taking pictures or videos of another individual without receiving that individual’s consent;
- Reverse engineer or disassemble any aspect of the Services or make any attempt that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Services;
- Modify, adapt, translate or create derivative works based upon the Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law;
- Infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Develop any third-party applications that interact with User Content or the Services without our prior written consent;
- Use any Skypod designs, logos, graphics, or trademarks without our express written consent; and
- Sell Skypod’s software without express written consent and paying applicable licensing fees.
Skypod reserves the right to investigate, provide to third parties, (temporarily) block and/or permanently delete from it servers, without prior notice or liability, any User Content and/or User Accounts or to block anyone from accessing any part of the Services, when Skypod ascertains, at its sole discretion or after receiving substantiated and valid complaints, that you have breached this Agreement or act in violation of any applicable law or regulation.
You may report a User who violates this Agreement by contacting us at the e-mail address provided below or through the Service. This list of prohibitions provides examples and is not complete or exclusive. Skypod reserves the right to (a) terminate your User Account, your ability to upload to the Platform or use the Services and (b) refuse, delete or remove any Pods or specific User Content, with or without cause and with or without notice, for any reason or no reason, or for any action that Skypod determines is inappropriate or disruptive to the Platform or to any other user of the Platform and/or the Services. Skypod may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Skypod’s discretion, Skypod will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Platform.
In connection with your User Content, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Skypod to use all patent, trademark, copyright, or other proprietary rights in and to any and all content to enable inclusion and use of content in the manner contemplated by these terms, and to grant the rights and license set forth above, (ii) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, (iii) you are not listed on any U.S. Government list of prohibited or restricted parties and (iv) your content, Skypod’s use of such content pursuant to these terms, and Skypod’s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law, rule, ordinance or regulation.
SUSPENSION AND TERMINATION OF THE SERVICE
Your User Account will remain active and in effect until it is cancelled or terminated by us or by you, for any reason, including termination for a User’s breach of this Agreement. If your billing information and payment source is invalid or if charges billed to you are declined, your account may be suspended, deleted or cancelled, at Skypod’s sole discretion. If a User Account is suspended, Skypod may, but is not obligated to, maintain your User Account and/or related User Content, in order to allow a User to pay the past-due charges and restore his or her User Account. If such charges are not paid, such account may be cancelled or deleted, and all User Content, including but not limited to any unaccepted or unopened Pods, may be deleted by us in our sole and absolute discretion. Furthermore, In the event that your User Account is terminated, deleted or suspended for any reason, including voluntary termination by you or termination by us on account of a User’s breach of this Agreement, you acknowledge and agree that any User Content, including but not limited to unaccepted or unopened Pods may be deleted by us, in our sole and absolute discretion.
NO WARRANTY OR CONDITIONS
TO THE EXTENT NOT PROHIBITED BY LAW, SKYPOD AND ITS AFFILIATES (AND ASSOCIATED SERVICE PROVIDERS) (A) PROVIDE THE SERVICES “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”, (B) MAKE NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS WHETHER EXPRESS OR IMPLIED (E.G. WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT), AND (C) DO NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE USER TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
To the extent not prohibited by law, you agree to defend and hold Skypod harmless (and our officers, directors, attorneys, affiliates, employees, and agents) against any cost, loss, damage, or other liability arising from any third party demand or claim that any User Content or information provided by you, or your use of the Services: (a) infringes a registered patent, trademark, copyright, or other intellectual property right of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Skypod’s actions); or (b) violates any applicable laws or any provision of this Agreement. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior, written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
The Services may be integrated with third-party services and that Skypod uses third-party services for the storage of Pods and User Content. You acknowledge that: (i) Skypod is not responsible for any acts or omissions of such third-party services; (ii) that Skypod is not an agent of such third-party services; and (iii) your use of those services is subject to any applicable terms and conditions between you and the providers of such services.
THE SERVICES, INCLUDING THE PLATFORM, ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE SERVICES: (a) WILL MEET YOUR REQUIREMENTS; (b) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (c) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
WITHOUT LIMITING THE FOREGOING PROVISIONS:
(1) YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE PLATFORM AND/OR ITS CONTENT TO ACHIEVE YOUR INTENDED RESULTS AND SOLE RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM, THE PLATFORM AND/OR ITS CONTENT;
(2) SKYPOD MAKES NO REPRESENTATION OR WARRANTY THAT THE PLATFORM AND/OR ANY CONTENT ON THE PLATFORM WILL BE ERROR-FREE, SECURE, VIRUS FREE, OR FREE FROM INTERRUPTIONS, DEFECTS OR OTHER FAILURES OR HARMFUL COMPONENTS OR THAT THE PLATFORM, AND/OR THE CONTENT WILL SATISFY YOUR SPECIFIC REQUIREMENTS OR BE COMPATIBLE WITH YOUR EQUIPMENT (MOBILE OR OTHERWISE) OR OTHER HARDWARE, SOFTWARE OR BROWSER CONFIGURATION OR THAT INACCURACIES OR ERRORS WILL BE CORRECTED;
(3) SKYPOD MAKES NO REPRESENTATION OR WARRANTY THAT THE INFORMATION OBTAINED FROM THIRD-PARTY SOURCES (INCLUDING, BUT NOT LIMITED TO, ANY USERS OF THE PLATFORM) USED ON OR WITHIN THE PLATFORM OR ANY AFFILIATED PLATFORM OR RECEIVED IN CONNECTION WITH CONVERTING OR TRANSMITTING ANY DATA RECEIVED IN DIFFERENT FORMATS IS ACCURATE, TIMELY, OR ERROR FREE, AND SKYPOD IS NOT RESPONSIBLE IN ANY WAY FOR THE INFORMATION OBTAINED FROM SUCH SOURCES;
(4) SKYPOD MAKES NO REPRESENTATION OR WARRANTY THAT THE INFORMATION PROVIDED BY USERS TO GAIN ACCESS AND PERMISSION TO USE THE PLATFORM, ANY AFFILIATED PLATFORM, OR OTHER INFORMATION POSTED BY USERS IS ACCURATE OR ERROR FREE; AND
(5) SKYPOD MAKES NO REPRESENTATION OR WARRANTY REGARDING THE SUITABILITY OF ANY PERSONS PARTICIPATING IN THE PLATFORM OR THE AFFILIATED PLATFORMS OR REGARDING THE CHARACTER OR INTEGRITY OF SUCH PERSONS.
SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL YOU OR SKYPOD AND ITS AFFILIATES, RESELLERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR: ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, BUSINESS INTERRUPTION, LOSS OF OPPORTUNITY, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF SKYPOD HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
SKYPOD IS NOT LIABLE FOR ANY DAMAGE OR PERSONAL INJURY RESULTING FROM ANY USE OF THE SERVICES, INCLUDING ANY TEMPORARY OR PERMANENT UNAVAILABILITY OR ACCIDENTAL OR INTENTIONAL REMOVAL OR DELETION OF YOUR USER CONTENT, POD(S) OR USER ACCOUNT. THE AGGREGATE LIABILITY OF SKYPOD AND ITS AFFILIATES, OFFICERS, RESELLERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, PRINCIPALS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF: (A) THE AMOUNT OF ANY SERVICE FEES PAID BY YOU TO SKYPOD; OR (B) ONE HUNDRED ($100.00) DOLLARS. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
IN COUNTRIES WHERE THE ABOVE TYPES OF EXCLUSIONS AND LIMITATIONS AREN’T ALLOWED, WE’RE RESPONSIBLE TO YOU ONLY FOR LOSSES AND DAMAGES THAT ARE A REASONABLY FORESEEABLE RESULT OF OUR FAILURE TO USE REASONABLE SKILL AND CARE OR OUR BREACH OF OUR CONTRACT WITH YOU.
NOTHING IN THESE TERMS AFFECTS CONSUMER RIGHTS THAT CANNOT BY LAW BE WAIVED OR LIMITED BY ANY CONTRACT OR AGREEMENT.
The provisions of this “Limitation of Liability” section allocates the risks under this Agreement between you and Skypod, and you and Skypod have relied on these limitations in determining whether to enter into this Agreement and the pricing for the Services.
LOCATION OF THE SERVICES
Skypod makes no representation that all products, services and/or material described on the Platform, or the Services available through the Platform, are appropriate or available for use in locations outside the United States or all territories within the United States. For purposes of this Agreement, the Services are deemed to be provided in the State of Florida, United States of America.
We respect the intellectual property of others and ask that users of our Platform and Services do the same. In connection with our Platform and Services, we have adopted and implemented a policy respecting copyright laws that provide for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our Services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
Our designated Copyright Agent is:
DiSchino & Schamy, PLLC
4770 Biscyane Blvd., Suite 1280
Miami, Florida 33137
SUBMITTING A DMCA COUNTER-NOTIFICATION
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to Skypod’s designated agent that includes all of the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Skypod may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND SKYPOD HAVE AGAINST EACH OTHER ARE RESOLVED.
You and Skypod agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to the Services will be resolved in accordance with the provisions set forth in this “Legal Disputes” Section.
CHOICE OF LAW
This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any principles that provide for the application of the law of another jurisdiction. Venue for any dispute arising hereunder shall be in Miami-Dade County, Florida.
AGREEMENT TO ARBITRATE
You and Skypod each agree that any and all disputes or claims that have arisen or may arise between you and Skypod relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to Skypod’s Services, or any services sold, offered, or purchased through Skypod’s Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court in Miami-Dade County, Florida if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
The arbitration will be conducted in Miami-Dade County, Florida by JAMS Arbitration (“JAMS”) under its applicable rules and procedures, as modified by this Agreement to Arbitrate. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes. You expressly acknowledge and agree that your rights will be determined by a neutral arbitrator and not a judge or jury. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by the court.
You and we must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) the arbitrator will honor claims of privilege and privacy recognized at law; (d) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (e) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (f) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
With the exception of subparts (a) and (b) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in Miami-Dade County, Florida.
EXCLUSIONS FROM ARBITRATION AND RIGHT TO OPT-OUT
Notwithstanding the above, you or Skypod may choose to pursue a claim or dispute in court and not by arbitration if (a) the claim or dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (“Opt-Out Deadline”). You may opt out of this “Legal Disputes” Section by mailing written notification to Skypod, LLC, P.O. Box 415880, Miami Beach, Florida 33141 or by email at email@example.com. Your written notification must include (i) your name, (ii) your address, and (iii) a clear statement that you do not wish to resolve disputes with Skypod through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Skypod. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your claim or dispute in arbitration or small claims court.
You understand and agree that by entering into this Agreement you and Skypod are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this “Legal Disputes” Section, you and Skypod might otherwise have had a right or opportunity to bring claims or disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided herein, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
These provisions regarding “Legal Disputes” shall survive the termination of this Agreement with Skypod or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if Skypod makes any change to these “Legal Disputes” Sections (other than a change to the notice address), you may reject any such change and require Skypod to adhere to the language in the original “Legal Disputes” sections, which you agreed to upon your creation of a User Account, if a claim or dispute between us arises.
The failure of either of you or Skypod to insist upon or enforce strict performance of any of the provisions of this Agreement, or to exercise any rights or remedies under this Agreement, will not be construed as a waiver or relinquishment to any extent of such right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect, unless expressly waived in writing.
SEVERABILITY; ENTIRE AGREEMENT
ASSIGNMENT AND TRANSFER
Skypod may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Services, unless we provide written consent for you to do so.
DIGITAL INHERITANCE; DEATH, INCAPACITY AND OTHER MATTERS.
Digital inheritance is the process of handing over (personal) digital media in the form of digital assets and rights to (human) beneficiaries. The process includes understanding what digital assets and rights exist and dealing with them after a person has died. At Skypod, we understand that digital media plays an increasingly important role in life. The media in which a digital inheritance resides can be owned by or independent of the deceased. In contrast with physical assets, digital assets are ephemeral and subject to constant change. Intellectual property and privacy, particularly post-mortem privacy, are additional factors. Digital inheritance may present a challenge for data heirs in its complexity and intricacy, and may have legal implications, particularly testamentary and probate laws, which may be applicable to you and your estate.
Skypod makes no representations or warranties as to the status of or transmission a Pod in the event of your death or incapacity. At no time do we review your Pod or any User Content therein, designations or transmissions for legal sufficiency, draw legal conclusions, provide legal advice, opinions or recommendations about your legal rights, options, selection of forms, or strategies, or apply the law to the facts of your particular situation. Skypod is not a law firm and may not perform services performed by an attorney. Skypod and its Services are not a substitute for the advice or services of an attorney. Therefore, we recommend that prior to using our Services, that you consult a licensed attorney in your area.
CHANGES TO THIS AGREEMENT
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes to our Platform. Any significant changes to this Agreement will be effective thirty (30) days after posting such notice. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice.
If you have any questions regarding this Agreement, please contact us at:
P.O. Box 415880
Miami Beach, Florida 33141
Last updated: April 17, 2020