TERMS AND CONDITIONS OF SERVICE
The following terms and conditions (“Terms”) apply to your use of the websites of Poetic Networks LLC (“Poetic Networks”, “StretchUp.ai” “we” “us” or “our”), including any content, functionality, products, and services offered on or through or such other platform (collectively, the “website”), whether as a guest or a paid user. These terms also apply to your use of other Poetic Networks’ services that display or include these terms (“additional services”). In these terms, the website, installable apps from Poetic Networks (e.g. “StretchUp”) and additional services are collectively referred to as the “services.”
To enter into the contract created by these terms, you must be an adult of the legal age of majority in your country of residence. You are legally and financially responsible for all actions using or accessing our software, including the actions of anyone you allow to access the service. You affirm that you have reached the legal age of majority, understand and accept these terms (including its dispute resolution terms). If you are under the legal age of majority, your parent or legal guardian must consent to these terms.
In addition to these Terms, software or services that are included in or otherwise made available to you through the Services may be subject to a separate agreement between you and Poetic Networks, such as end-user license agreements. If these Terms are inconsistent with any such agreements, those agreements will control.
CHANGES TO TERMS OR SERVICES
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Poetic Networks shall reserve the sole right to change the structure of package/plans and prices, at any point in time. The information regarding prices and services available on our website may be changed at any point in time, without prior notification to you. Changes in prices for product and services will be at the sole decision of Poetic Networks. However, change in prices would be effective for new projects only. Order for projects placed at rates before a change in price will be completed at the agreed rates.
Unless you opt-out of arbitration within 30 days of the date you first agree to these terms by following the opt-out procedure specified in the “Arbitration” section below, and except for certain types of disputes described in the “Arbitration“ section below, you agree that disputes between you and Poetic Networks will be resolved by binding, individual arbitration and you are waiving your right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.
SOFTWARE PRODUCTS COPYRIGHT PROTECTION
Poetic Networks gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the StretchUp software provided to you as part of the Services from Poetic Networks. Authorized license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Poetic Networks, in the manner permitted by the Terms & Conditions.
All versions of the SOFTWARE PRODUCT are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
FREE TRIAL AND REGISTRATION
1. Free Trial
The StretchUp software is not a free software. Subject to the terms below, you may be eligible for a free trial of the service and you are hereby licensed to use this software as a trial without charge To the extent enabled by the software using its built-in trial options.
All versions of the SOFTWARE PRODUCT are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
When you install StretchUp, the program generates a unique ID for each installation. Purchases, upgrades and subscriptions are for a specific unique ID. In certain upgrade scenarios, that ID is retained. In other cases, such as installing StretchUp on other computers, a new ID is generated which will not be associated with previous purchases or subscriptions.
CHARGES AND PAYMENT
StretchUp requires that certain features be enabled by pay-per-use purchases, or purchases to enable certain premium features, or subscriptions.
Pay Per Use: Certain StretchUp features can be purchased and used a certain number of times per purchase. When you pay per use, you are granted the option to use that feature for a certain number of times at the time of purchase.
Premium features: Certain StretchUp features may be purchased and used only after paying a one-time fee. Paying for these features grants you the option to use these features as long as they are available after purchase.
Subscription: Certain StretchUp features may require time-based subscriptions. Paying for subscription grants you the right to use these features while the subscription is active and paid-for, or if the subscription is billed by the time spent on the feature you are granted the right to use that feature for a specific amount of time.
Automatic Recurring Payments: Subscriptions may involve automatic recurring payments (e.g. monthly or yearly recurring payments). Once approved by the user, such payments will be deducted periodically and provide for continued rights to use the relevant features. The recurring payments may be cancelled by the user or by Poetic Networks. If a recurring payment is cancelled, the user retains the right to use the features through the end of the subscription period of the last effective payment, after which those rights end. There will be no refunds for partial use of subscriptions.
Please refer to additional purchase and payment terms in the EULA.
INTELLECTUAL PROPERTY RIGHTS
The services, including all content, features, and functionality thereof, are owned by Poetic Networks, its licensors, or other providers of such material and are protected by the United States and international copyright, trademark, patent, and other intellectual property or proprietary rights laws.
You are permitted to use the Services for your personal, non-commercial use only or legitimate business purposes related to your role as a current or prospective user of the software. Except as provided below, you must not copy, modify, create derivative works of, publicly display, publicly perform, republish, or transmit any of the material obtained through the Services, or delete, or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Services. However, if you are otherwise in compliance with these Terms, you are permitted to use, elsewhere and on other websites, an unaltered copy of portions of the content that is publicly available on the Website for the limited, non-commercial purpose of discussing such content.
You must not reproduce, sell, or exploit for any commercial purposes any part of the Services, access to the Services or use of the Services or any services or materials available through the Services.
LINKS TO WEBSITES OF OTHER RESOURCES
We may provide links to websites of resources of third-parties other than us. Those links to other websites are provided solely as a courtesy and convenience purpose without any representation or warranty as to their content, use, or terms. Your use of such other websites is subject to the terms and conditions and privacy policies if any, of the party who control such other websites and you use them at your own risk. We cannot control such websites of other persons.
Poetic Networks Services are available only to persons who are capable under the applicable law of forming valid contracts. If you are a natural person using StretchUp on behalf of an entity, then by registering in the name of the entity and using the Services you represent and warrant that the entity may lawfully enter into this agreement and that you have lawful authority to bind that entity to the terms and conditions of these terms. If you are a child (under the age of 18 years) or lack legal competency, then the use of StretchUp are not available to you; do not use the Services. If you are under the age of 18 or are subject to legal guardianship, then you can use StretchUp and the Services only if your legal guardian or representative first agrees with us that you may use StretchUp and the Services and then supervises your use of StretchUp and the Services.
USER GENERATED CONTENTS AND CONTRIBUTIONS
The Website may contain message boards, profiles, forums, bulletin boards, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to the Model, other users, or other persons (“post”) content or materials (collectively, “User Content”) on or through the Website.
You may upload certain User Content from time to time for a certain aspect of the services. You guarantee that you own all rights in the User Content and you acknowledge and agree that you have sole responsibility for the legality, reliability, accuracy and quality of the User Content.
You grant to us a non-exclusive, royalty-free, worldwide license to use the User Content to the extent reasonably necessary for the provision of the Services from time to time. This right cannot be withdrawn by you (but you can delete the content from any public-facing elements of the Website) and the license may be used by us on an ongoing basis. For the avoidance of doubt, by posting User Content publicly to a Service, you grant us the right and license to use, modify, display, reproduce and distribute such User Content for any purpose.
You agree not to do any of the following:
Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity, or (vii) promotes illegal or harmful activities or substances;
Use, display, mirror or frame the Services, or any individual element within the Services, Poetic Networks’ name, any Poetic Networks trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Poetic Networks’ express written consent;
Access, tamper with, or use non-public areas of the Services, Poetic Networks’ computer systems, or the technical delivery systems of Poetic Networks’ providers;
Attempt to probe, scan, or test the vulnerability of any Poetic Networks’ system or network or breach any security or authentication measures;
void, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Poetic Networks or any of Poetic Networks’ providers or any other third party (including another user) to protect the Services;
Attempt to access or search the Services or download Collective Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Poetic Networks or other generally available third party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other forms of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Poetic Networks trademark, logo URL or product name without Poetic Networks’ express written consent;
Use the Services for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your usage of the service at any time by discontinuing your use of the service. Upon any termination, discontinuation or cancellation of Services, 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.
The Services, Products and Content are provided “as is,” without warranty of any kind. Without limiting the foregoing, we explicitly disclaim 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.
We make no warranty that the Services or Products will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold harmless Poetic Networks and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content or (ii) your violation of these Terms.
LIMITATION OF LIABILITY
Neither Poetic Networks nor any other party involved in creating, producing, or delivering the Services, Products or Content will be liable for any incidental, special, exemplary or consequential damages, including, but not limited to, lost profits, loss of data or goodwill, service interruption, computer damage or system failure or the cost of substitute Services or Products arising out of or in connection with these terms or from the use of or inability to use the Services, Products or Content, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Poetic Networks 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. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. In no event will Poetic Networks’ total liability arising out of or in connection with these terms or from the use of or inability to use the Services, Products or Content exceed the amounts you have paid to Poetic Networks for use of the Services, Products or Content or fifty dollars ($50), if you have not had any payment obligations to Poetic Network, as applicable. The exclusion and limitations of damages set forth above are fundamental elements of the basis of the bargain between Poetic Networks and you.
GOVERNING LAW DISPUTE RESOLUTION
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Poetic Networks agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services, Products or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) 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 (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Poetic Networks with written notice of your desire to do so by email within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”).
If you don’t provide Poetic Networks with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Poetic Networks with an Arbitration Opt-out Notice, will be the state and federal courts located in California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Poetic Networks with an Arbitration Opt-out Notice, you acknowledge and agree that you and Poetic Networks are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Poetic Networks otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms
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.
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 arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of 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.
Arbitration Location and Procedure
Unless you and Poetic Networks otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $5,000, then the arbitration will be conducted solely on the basis of the documents that you and Poetic Networks submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $5,000, 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.
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 of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and 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. Poetic Networks 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.
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 $10,000, Poetic Networks will pay all such 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)).
Notwithstanding the provisions as regards how we can make changes to this Terms, if Poetic Networks 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 email) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Poetic Networks; email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Poetic Networks 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).
Class Action Waiver
To the maximum extent permitted by applicable law, you and Poetic Networks agree to only bring Disputes in an individual capacity and shall not:
seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (e.g., private attorney general actions); or
consolidate or combine individual proceedings or permit an arbitrator to do so without the express consent of all parties to this Agreement and all other actions or arbitrations.
Entire Agreement: These Terms constitute the entire and exclusive understanding and agreement between Poetic Networks and you regarding the Services, Products and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Poetic Networks and you regarding the Services, Products and Content.
Severability: If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by a court of competent jurisdiction, but only if you timely opt-out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Assignment: You may not assign or transfer these Terms, by operation of law or otherwise, without Poetic Networks’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Poetic Networks may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices: Any notices or other communications provided by Poetic Networks under these Terms, including those regarding modifications to these Terms, will be given: (i) by Poetic Networks 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.
No Waiver: Poetic Networks’ failure to enforce any right or provision of these Terms will not be considered a waiver of such 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 Poetic Networks. 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.
If you have any questions about these Terms or the Services or Products, please contact Poetic Networks using the “Contact” form on the website.