PTCH - Terms of Service
Last Updated August 31, 2012
Welcome to PTCH!
DWA Investments, Inc. ("PTCH") provides PTCH. PTCH is a fun and safe environment for users to create and share all kinds of material, by using their own User Content (defined below) and other Collective Content (defined below) that they find on the service, through use of our applications and related services and technologies, either on mobile devices or our website located at http://ptch.com (the "Site"), collectively (the "Application"). In this document we refer to our services, technologies, Site, and Application collectively as the " Services". Please read these terms of service ("Terms") carefully - they are a legal contract between you and PTCH for your use of the Services.
Please email us here (http://help.ptch.com/customer/portal/emails/new) ) if you have any questions about the Terms.
I. The Agreement
A. Agreeing to the Terms
(i) How you agree. BY CLICKING ON THE "CREATE ACCOUNT" OR "CONNECT WITH [THIRD PARTY SERVICE]" OR "SHARE" BUTTONS AND/OR BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS, AND THE PTCH PRIVACY POLICY (http://ptch.com/about/privacy), INCORPORATED HEREIN BY REFERENCE, WHETHER OR NOT YOU REGISTERED WITH THE SERVICES. IF YOU DON'T AGREE TO THESE TERMS AND THE PRIVACY POLICY THEN YOU HAVE NO RIGHT OR AUTHORIZATION TO USE THE SERVICES.
(ii) Agreement by you on behalf of a company. If you agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in that case, "you" and "your" will refer and apply to that company or other legal entity.
(iii) Other terms. At some point, different areas of the Services and your access to or use of certain Services or Collective Content may have different terms and conditions or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Services or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Services or Collective Content.
B . Changes We Can Make to the Terms and Services
(i) PTCH's discretion and notice of changes. PTCH, may, at its sole discretion, modify these Terms, at any time and without prior notice. If we modify the Terms, we will post a revised set of Terms and a notice about the revised Terms through the Services. It is important that you review the new Terms whenever we revise them.
(ii) Your acceptance of changes. Your use of the Services after we post revised Terms indicates to us that you have agreed to be bound by the revised Terms. If the revised Terms are not acceptable to you, your only recourse will be to stop using the Services.
(iii) Change or discontinuance of Services. We may change or discontinue all or part of the Services, at any time, without notice to you, at our sole discretion. We may also create limits related to use of the Service or parts of the Service, without notice or liability to you. If the changes to the Services are not acceptable to you, your only recourse will be to stop using the Services.
II. Who Can Use Our Services
A. Eligibility. You can use the Services only if you are 13 years or older. If we believe you are under 13, or you are permitting the Service to be used by someone who is under 13, using the Services, we will terminate your Account (defined below) and will try to delete materials associated with your Account, as required by applicable law.
B. Registration
(i) Registration requirement. You must register to create an account ("Account") in order to use certain features of the Services.
(ii) Registration through third-party social network services. You can register through your account with certain third party social networking Services, including, but not limited to, Facebook and Twitter (collectively, "SNS"). When you register through your SNS account, you will be asked to enter your SNS account credentials. When your create an Account for the first time via a SNS we will prompt you to merge your Services and SNS accounts and by doing so, you agree to allow PTCH to access your SNS account information. You agree to abide by the applicable terms and conditions of your SNS in your use of the Services in conjunction with a SNS.
(iii) Your responsibilities regarding account information and management. You agree to provide accurate, complete and up to date information to PTCH. If we identify that you have not provided accurate, complete and up to date information, we will provide you with a reasonable period of time to correct your information if possible, following which we may suspend or terminate your Account. You agree not to disclose your Account password to anyone. You are responsible for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify PTCH of any unauthorized use of your Account.
III. Content on PTCH
(i) Key definitions. "Content" means text, graphics, images, music, software, audio, video, works of authorship of any kind, information or other materials. " User Content" means all Content that any registered user provides to be made available through the Services for the purpose of allowing users (including the user who makes the Content available) to create PTCHs/mashups. "PTCH Content" means all Content owned by PTCH or licensed to PTCH, excluding User Content that PTCH makes available through the Services. "Collective Content" means User Content and PTCH Content.
(ii) User Content. Registered users may provide User Content to PTCH via the Services, including User Content created or owned by third parties that users are authorized by third parties to provide or whose provision is lawful under the fair use doctrine of U.S. copyright law, under comparable doctrines of law of other jurisdictions, or under other intellectual property law. To learn more about copyright law and fair use, click here for additional resources. In addition, the FAQs on copyright and fair use are especially helpful. PTCH may from time to time, at its discretion, change the websites referenced in this sub-section for informational purposes or to which PTCH provides a link or links for informational purposes, without providing notice to users. These changes may be necessary to allow us to respond to changes in the law, to provide you with access to more relevant reference material or if external websites are no longer available.
B. Rights granted by PTCH to You for PTCH Content and User Content
(i) Content License from PTCH. Subject to your compliance with these Terms, PTCH grants you a worldwide, limited, non-exclusive, non-transferable license, to (a) access, use, view, download, combine with other Content, reproduce, distribute copies of, disseminate, publicly display and publicly perform PTCH Content, when using the Services, solely for your personal entertainment and non-commercial purposes and subject to any terms or limitations applicable to such PTCH Content, and (b) to access and use the Services, solely for your personal entertainment and non-commercial purposes.
(ii) License Restrictions. You will not use or exploit any Services or Collective Content, or any intellectual property rights in them, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise, except for the licenses and rights expressly granted to you as set out in these Terms.
(iii) Application License from PTCH . Subject to your compliance with these Terms, PTCH grants you a limited non-exclusive, non-transferable license to download one copy of the Application from a PTCH-authorized source for, and to install that copy on, each mobile device or computer that you own or control and to use the Application on each device or computer solely for your own personal entertainment and non-commercial purposes.
C. Rights granted by You to PTCH for User Content. By making your own User Content, or User Content to which you control the rights, available through the Services, you hereby grant (i) to PTCH the worldwide, irrevocable, sublicensible, non-exclusive, transferable, royalty-free license and authority to do the following on, through or by means of the Services: to access, use, view, download, modify, combine with other Content, reproduce, create derivative works based upon, distribute copies of, disseminate, publicly display, publicly perform, host, cache, and transmit such User Content in connection with the Services, including for promotion of the Services, directly or indirectly by intermediaries, and to authorize others to do the same; and (ii) to other users the worldwide, irrevocable, sublicenseable, non-exclusive, transferable, royalty-free license to access, use, view, download, modify, combine with other Content, reproduce, create derivative works based upon, distribute copies of, disseminate, publicly display and publicly perform such User Content, in whole or in part, when using the Services only as permitted through the functionality of the Services and under these Terms, solely for such users' personal entertainment and non-commercial purposes. You agree that these licensing arrangements are a necessary aspect of and enable the functionality behind the Services and that without agreeing such licensing arrangements with you, the Services could not be provided to you on the same basis.
D. User Commitments Regarding Content
(i) Your User Content. You agree that you are solely responsible for all your User Content. You represent and warrant that: (a) you are the owner of the User Content that you provide through Services, and/or (b) you have the right to provide your User Content as a matter of law (for example, because the use is "fair use" or for other reasons is non-infringing); and/ or (c) you have all rights, licenses, consents and releases, express or implied, that are necessary to use Services and to grant to PTCH the rights in the User Content you provide via the Services. This warranty is necessary to protect PTCH against legal claims from third parties alleging that your User Content infringes their intellectual property rights.
(ii) Duration Limitation. There may be a limit on the duration of the User Content that you can submit via the Services, and on the duration of anything you create or put together using the Services using Collective Content, which duration PTCH will communicate to you via the Services from time to time.
(iii) Representations. You also represent and warrant that your use of, and your authorization of PTCH's use of, the User Content you provide via the Services will not infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. This representation and warranty is necessary to protect PTCH against legal claims from third parties alleging that your User Content infringes their intellectual property rights, publicity rights or right to privacy or results in a breach of any laws or regulations.
(iv) How your User Content will be available. Please note that any User Content you provide, or any combination of User Content, PTCH Content and/or Third Party Content that you create and share via the Services will be publicly available to all users of the Services and may be used by other users of the Services. Therefore, we recommend that you exercise your discretion and good judgment when providing User Content and using the Services and you agree to do so.
E. Intellectual Property Protection, Ownership, and Notices. Intellectual property laws protect the Services and PTCH Content. Except as expressly provided in these Terms, PTCH and its licensors owns all rights in the Services and PTCH Content. PTCH has no ownership rights in User Content. You must not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Collective Content. You agree that you have no right to, or title in or to, any Collective Content (except for the User Content that you provide), including without limitation, any Virtual Goods (defined below) originating in the Services, or any other attributes associated with your Account.
IV. Accessing and Downloading the Application from iTunes.
A. App Store Sourced Applications. With respect to any Application accessed through or downloaded from the Apple App Store ("App Store Sourced Application"), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple's proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. PTCH reserves all rights in and to the Application not expressly granted to you under these Terms.
B. Terms and Conditions . The following applies to any App Store Sourced Application: (a) you acknowledge and agree that (i) these Terms are concluded between you and PTCH only, and not Apple, and (ii) PTCH, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service; (b) you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application; (c) in the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application; (d) as between PTCH and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of PTCH; (e) you and PTCH acknowledge that, as between PTCH and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; (f) you and PTCH acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between PTCH and Apple, PTCH, 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; (g) you and PTCH acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, 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 related to your license of the App Store Sourced Application against you as a third party beneficiary thereof; and (h) without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
C. Export Control. You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the App Store Sourced Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App Store Sourced Application, you represent and warrant that: (i) 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; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
A. Purchase. You might be allowed to purchase a license to make certain uses, with the Services, of certain items of PTCH Content via the Services (" Virtual Goods"). Virtual Goods may never be redeemed for "real world" money, goods or other items of monetary value from PTCH or any other party.
B. No Ownership
(i) Virtual Goods are digital items only. Your right to use any Virtual Goods is limited as set forth in Section III and you have no ownership interest in, or to, such Virtual Goods which remain the exclusive property of PTCH and its licensors. Just because PTCH offers Virtual Goods does not mean it will continue to do so in the future and the scope, variety and type of Virtual Goods can change at any time. PTCH has the absolute right to manage, regulate, control, modify or eliminate such Virtual Goods as it sees fit in its sole discretion, and PTCH will have no liability to you or anyone for the exercise of such rights. You agree and acknowledge that Virtual Goods are for entertainment purposes only and that your use, or right to use such Virtual Goods constitutes good consideration from PTCH and that any expiry of such rights is consistent with the nature of the Service as an entertainment service.
(ii) What is not Allowed. You acknowledge that Virtual Goods are entertainment products only and as such, unless we explicitly so authorize within the Services, (i) transfers of Virtual Goods are strictly prohibited; (ii) you may not buy or sell any Virtual Goods for "real world" money or otherwise exchange items for value within or outside the Services; and (iii) PTCH does not recognize any such purported transfers of Virtual Goods, nor the purported sale, gift or trade in the "real world" of anything that appears in the Services. Any attempt to do any of the foregoing is in violation of these Terms and will result in an automatic termination of your rights to use the Virtual Goods and may result in termination of your Account, a lifetime ban from the Services and/or possible legal action. You agree that all sales of Virtual Goods are final. No refunds will be given, except in our sole and absolute discretion. All Virtual Goods are forfeited if your Account is terminated or suspended for any reason, in PTCH's sole and absolute discretion, or if PTCH discontinues providing the Services.
C. Payment Terms. Certain aspects of the Services are, or may in the future be, provided for a fee or other charge. In the event you choose to use paid aspects of the Services, (e.g., if you decide to purchase Virtual Goods), you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted in the Services. All fees are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in U.S. dollars.
D. Third Party Purchases . You might be provided links or other access to third party sites that will provide you with an opportunity to make purchases or acquire certain rights to goods or other services. You acknowledge and agree that the terms and conditions relating to such transactions shall be solely between you and such third party.
VI. Acceptable Use Policy and PTCH's Right to Enforce
A. Acceptable Use Policy. PTCH wants the Services to offer a safe, creative and positive place to create and share Content so you agree that you will only use the Services in a way that is consistent with the PTCH Acceptable Use Policy (ptch.com/about/policy). We reserve the right, but are not obligated, to remove Collective Content from the Service for any reason, including User Content that we believe violates these Terms or the Acceptable Use Policy (ptch.com/about/policy).
B. PTCH's Self-Help Options to Enforce Prohibitions
(i) Removal of Content. PTCH reserves the right, at any time and without notice, to remove or disable access to any Collective Content for any reason or no reason, including, but not limited to, Collective Content that PTCH, at its sole discretion, considers to be objectionable for any reason, or in violation of these Terms or Acceptable Use Policy.
(ii) Monitoring of Content. PTCH has no obligation to monitor access to or use of the Services or Collective Content or to review or edit any Collective Content, but it has the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. PTCH has the right to investigate violations of its Terms or conduct affecting its Services. It may also consult and cooperate with law enforcement authorities in prosecuting users who violate the law.
VII. Copyright Policy
PTCH respects copyright law and expects its users to do the same. PTCH has adopted and implemented a policy that provides for the termination in appropriate circumstances of registered users, subscribers or Account holders of the Services who repeatedly infringe the rights of copyright holders. Please see PTCH's Copyright Policy (ptch.com/about/copyright) for further information.
VIII. No Responsibility of PTCH for Links to Third-Party Websites or Resources
The Site and Application may contain links to third-party websites or resources. You agree that PTCH is not responsible or liable for (i) the availability or accuracy of those websites or resources or (ii) the content, products, or service on or available from those websites or resources. Links to those websites or resources do not imply any endorsement by PTCH of them or the content, products, or services available from them. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.
IX. Termination and Account Cancellation, and Survival of Terms
A. Termination or Discontinuation by PTCH. PTCH may, at any time, terminate your access to and use of the Services or discontinue the Services for any reason or no reason at its sole discretion, with or without prior notice to you. You agree and acknowledge that this termination right is necessary to protect PTCH's legitimate business interests.
B. Cancellation by You. You may cancel your Account at any time by sending an email here ( help.ptch.com/customer/portal/emails/new). When you cancel your Account, please note that your User Content will still be accessible by other users and PTCH has no obligation to remove (or maintain) any such User Content.
C. Survival of Terms. Upon termination, discontinuation, or cancellation of Services or an Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
X. Disclaimers, Indemnity, and Limitation of Liability
A. Disclaimers
(i) THE SERVICES AND COLLECTIVE CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, PTCH EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PTCH MAKES NO WARRANTY THAT THE SERVICES OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. PTCH MAKES NO WARRANTY REGARDING THE QUALITY OF ANY THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PTCH OR THROUGH THE SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IN ADDITION, PTCH DISCLAIMS ALL IMPLIED STATUTORY GUARANTEES TO THE FULLEST EXTENT PERMITTED BY LAW. YOU AGREE AND ACKNOWLEDGE THAT THIS TERMINATION RIGHT IS NECESSARY TO PROTECT PTCH'S LEGITIMATE BUSINESS INTERSTS.
(ii) YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT PTCH DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SERVICES, NOR DOES PTCH MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS. PTCH MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
B. Indemnity
You agree to indemnify and hold harmless PTCH and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defense of litigation by third parties), arising out of or in any way connected with (i) your access to or use of the Services or Collective Content, (ii) your User Content, or (iii) your violation of these Terms. You agree and acknowledge that this clause is necessary to protect PTCH's legitimate business interests.
C. Limitation of Liability
(i) YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND COLLECTIVE CONTENT REMAINS WITH YOU AND YOU USE THE SERVICES AT YOUR OWN RISK.
(ii) YOU AGREE THAT NEITHER PTCH NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, COLLECTIVE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PTCH HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(iii) IN NO EVENT WILL PTCH'S AGGREGATE LIABILITY, OR THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR COLLECTIVE CONTENT EXCEED ONE HUNDRED DOLLARS ($100).
(iv) THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PTCH AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR CERTAIN WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.
XI. How Disputes will be Handled
A. California Law Governs. These Terms and any disputes related to them or to your use of PTCH's Services will be governed by the laws of the State of California without regard to its conflict of laws provisions.
B. Where a Lawsuit Must Occur. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in Los Angeles County, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
C. Waiver of Jury Trial and Class Action; Agreement to Mandatory Arbitration
(i) Waiver of Jury Trial and Class Action. You acknowledge and agree that you and PTCH each waive the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding against the other.
(ii) Binding Agreement to Arbitrate with Limited Exceptions. You and PTCH agree that any dispute, claim or controversy arising out of or relating to these Terms or validity thereof or the use of the Services (collectively, " Disputes ") shall be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and 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 party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(iii) Waiver of Class Action Arbitration. Unless both you and PTCH otherwise agree in writing, the arbitrator may not consolidate more than one party's claims and may not otherwise preside over any form of any class or representative proceeding. If the previous sentence is held to be unenforceable, then all paragraphs of this section C after paragraph (i) (except this sentence) shall be deemed void.
(iv) Arbitration Rules. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this dispute resolution section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
(v) Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration (http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175) and a separate form for California residents ( http://adr.org/aaa/ShowPDF?doc=ADRSTG_004314).) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
(vi) Arbitration Location and Procedure. Unless you and PTCH otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and PTCH submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
(vii) Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. PTCH will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
(viii) Arbitration Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, PTCH will pay reasonable filing, administrative, and arbitrator fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(ix) Changes. Notwithstanding the provisions of the "Modification" section above, if PTCH changes this dispute resolution section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by emailing us here ( help.ptch.com/customer/portal/emails/new)) within 30 days of the date such change became effective, as indicated in the "Last Modified Date" above. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and PTCH in accordance with the provisions of this dispute resolution section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
XII. General Terms
A. Complete and Exclusive Understanding. These Terms and any PTCH documents or policies linked to from these Terms, constitute the entire and exclusive understanding and agreement between PTCH and you regarding the Services and Collective Content and these Terms supersede and replace any and all prior oral or written understandings or agreements between PTCH and you regarding the Services.
B. No Assignments or Transfers of Rights by You . You may not assign or transfer any rights or obligations under these Terms, without PTCH's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. PTCH may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
C. No Third-Party Beneficiaries. Except as set forth in Section IV, you agree that these Terms are intended for you and there are no third party beneficiaries under these Terms.
D. No Guarantee of Availability. PTCH does not guarantee that the Services will be available or accessible at any particular time or place.
E. Delivery of Notices. Any notices or other communications permitted or required to be given by PTCH under these Terms, including those regarding modifications to these Terms, will be in writing and given by PTCH (i) via email or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
F. Feedback. We welcome feedback, comments and suggestions for improvements to the Services ("Feedback") and you can submit Feedback by emailing us here (help.ptch.com/customer/portal/emails/new ). You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
G. No Waiver from Failure to Enforce; Requirements of Waiver . The failure of PTCH to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of PTCH.
H. No Prejudice. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
I. Maximum Effect. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. This does not apply to the provisions for dispute resolution in Section XI.C., which are governed by paragraph XI.C.iii.
XIII. Contacting PTCH. If you have any questions about these Terms, any App Store Sourced Application or any questions, complaints or claims with respect to the Services, please contact us here ( help.ptch.com/customer/portal/emails/new) or at PTCH, c/o DWA Investments, Inc., 1000 Flower Street, Glendale, California 91201.