Effective Date: September 17, 2020
Last Updated: September 17, 2020
PLEASE READ THE FOLLOWING TERMS OF SERVICE (THE “TERMS”) CAREFULLY BEFORE USING OUR WEBSITE(S), MOBILE APPLICATIONS (TOGETHER WITH THE WEBSITE, TO THE EXTENT EACH IS GOVERNED BY THESE TERMS, THE “SITE”), OR THE SERVICES PROVIDED IN CONNECTION WITH THE SITE OR OTHERWISE GOVERNED BY THESE TERMS (TOGETHER WITH THE SITE, THE “SERVICES”), WHICH ARE OWNED OR OPERATED BY POP CAPACITY, INC. (“POP CAPACITY”, “WE”, “OUR” OR “US”).
These Terms may apply to you individually, the business or other legal entity user you represent, or both. If you are using the Services on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to enter into these Terms on behalf of such entity. By accessing, registering for or using the Services, you: (1) represent and warrant that you are at least 18 years of age and legally able to enter into a binding contract; (2) acknowledge that you have read and understand these Terms; (3) agree to be bound by them in their entirety, and (4) are entering into a legally binding agreement with us. As used in these Terms and unless separately identified as applicable to either an individual or entity, “you” and “your” refer to both you individually and the entity on behalf of which you are entering into these Terms.
Changes to the Terms
We may make changes to these Terms from time to time in our sole discretion. When we do so, we will post the most current version of the Terms on the Site or otherwise through the Services and, if a revision to the Terms is material, we will also notify you of the new Terms (for example, by email to the address provided by you when registering or through a notification on or through our Services). Changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes. If you do not agree to the revised Terms, you should discontinue your use of the Services.
The Services enable those individuals or entities (“Customer(s)”) that want to contract with someone to provide certain “pop up” warehouse capacity or other services to connect with individuals or entities seeking to provide such services (“Providers”). The performance of services by one or more Providers is referred to as a “Job.” The Services connect Providers who want to make available and provide Jobs to Customers, and give Customers a way to find those Providers and arrange Jobs.
Providers are third parties who choose to provide warehousing or other services for Customers. Pop Capacity does not control whether a Provider chooses to offer a particular Job through the Services, or whether or not a Provider makes a business out of providing such services, either using our platform or otherwise. Pop Capacity also does not have control over whether a Provider will agree to participate in a Job. Unless otherwise agreed upon between Provider and Pop Capacity, accepting services through the Pop Capacity platform does not preclude a Provider from providing services under another platform, or for other persons simultaneously.
WITH RESPECT TO THE RELATIONSHIP BETWEEN CUSTOMERS AND PROVIDERS, POP CAPACITY IS A PLATFORM AND IS NOT RESPONSIBLE FOR THE PROVISION OF SERVICES TO CUSTOMER BY PROVIDERS OR PERFORMANCE OF CUSTOMER’S OBLIGATIONS TO PROVIDERS. IT IS THE PROVIDER’S SOLE DECISION WHETHER TO OFFER FOR AND PROVIDE THE SERVICES REQUESTED BY CUSTOMERS AND CUSTOMER’S SOLE DECISION WHETHER TO ENGAGE A PROVIDER.
Access to the Services
With respect to Providers, you acknowledge that Pop Capacity may perform background checks, which you hereby authorize, and require you to go through other verification and approval processes determined by Pop Capacity on its sole discretion from time to time.
Customer Billing and Payments
You shall be responsible for paying for all applicable fees for the Services, including all subscription fees due for your use of the Services, as well as any other charges or fees you agree to pay from time to time. In using our Services, you may be charged local sales tax or other taxes. Unless otherwise expressly agreed, in no event shall you be entitled to any refund of any amounts paid.
By registering for the Services and providing your payment information, you agree that we may save your payment information for your convenience. If your payment method is declined, we will attempt to process your charge until the transaction is approved. We, and our third party payment service providers, may request and receive, updated credit card information from your credit card issuer, such as updated card numbers and expiration date information when your credit card has expired. If such updated information is provided to us and our third-party payment service providers, we will update your account information accordingly, and will use such updated information to process payments for your future purchases and subscriptions. If your bank or credit card issuer reverses a charge to your credit card, we may bill your account directly and seek payment through another method, including a mailed statement.
Payments Between Users
All fee and payment obligations between Customer and Provider for Jobs shall be determined and managed solely between the respective Customer and Provider. Pop Capacity shall have no obligation or liability, and you hereby hold Pop Capacity harmless, in connection with any failure of a Customer to make requisite payments to a Provider.
Intellectual Property Rights
The Services and the content of the Services, including, but not limited to, text, graphics, images, audio clips, digital downloads, data compilation or code, are owned by Pop Capacity, its licensors or other providers of such material and are protected by United States and international intellectual property or proprietary rights laws.
These Terms permit you to use the Services for your personal, non-commercial use only. Subject to these Terms, Pop Capacity grants you a limited, non-exclusive, non-transferable license to access and use the Services for the purposes made available to you in accordance with these Terms and solely as intended based on the functionality thereof. You may not:
- Republish, reproduce, duplicate, copy, sell, rent, distribute, create derivative works, publicly display, publicly perform, store, transmit or sub-license the Services;
- Copy the Services;
- Delete or alter any copyright, trademark or other proprietary notices from copies of materials from the Services;
- Create frames around our web pages or use other techniques that alter in any way the visual presentation or appearance of the Services (without prior written approval by Pop Capacity);
- Remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Services;
- Use the Services for any unlawful purposes or in any way that violates any applicable federal, state, local or international law or regulation;
- Use the Services for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
- Transmit or procure the sending of any advertising or promotional material without prior written consent, including any junk mail, chain letter, or spam; or
- Engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Pop Capacity or users of the Services or expose them to liability.
All trademarks, service marks and trade names of Pop Capacity are trademarks or registered trademarks of Pop Capacity or their respective owners. You may not use such marks without Pop Capacity’s or the respective owner’s prior written consent or as provided below in “Third Party Links and Sites”.
You acknowledge and agree that the Services are provided under a license, and not sold, to you. You do not acquire any ownership interest in the Services under these Terms or any other rights thereto other than to use the Services in accordance with these Terms. Pop Capacity and its licensors reserve and retain their entire right, title and interest in and to the Services, except as expressly granted to you in these Terms.
Through your use of the Services, you may be able to submit, upload, publish or otherwise make available to Pop Capacity textual, audio or visual content, including commentary and feedback (the “Content”). As between you and Pop Capacity, any Content that you provide remains your property. However, by providing Content to Pop Capacity, you grant Pop Capacity and all of its subsidiaries, affiliates, successors and assigns a worldwide, perpetual, royalty-free, irrevocable, sublicensable, non-exclusive and transferable right to use, publish, reproduce, modify, adapt, publicly display and otherwise use your Content, without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. Such right shall survive the termination of these Terms.
Third-Party Links and Sites
The Services may link to other websites operated by third parties, including, without limitation, those operated by TP Providers. We have no control over these linked sites, each of which has a separate privacy and data collection practices independent of Pop Capacity. We are not responsible for, do not endorse and do not accept any responsibility for the availability, contents, products, services or use of any third-party site, any website accessed from a third-party site or any changes or updates to such sites. These linked sites are provided to you only for your convenience and you access them at your own risk. You agree that we are not responsible for any loss or damage you may incur from dealing with any such third-party site. You should contact the site administrator for the applicable third-party site if you have any concerns regarding such links or the content located on any such third-party site.
Acceptable Use Policy
You agree to comply with all applicable laws and regulations in connection with your use of the Services. You may not use the Services to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:
- Acts that may materially and adversely affect the quality of other users’ experience;
- Actual or attempted unauthorized use or sabotage of any computers or networks;
- Introducing malicious programs into the Services, network or servers (e.g. viruses, worms, Trojan horses, etc.);
- Engaging in any monitoring or interception of data not intended for you;
- Attempting to circumvent security of any host, network, or account without authorization;
- Reverse engineering, decompiling, disassembling, deciphering or otherwise attempting to derive the source code for any underlying intellectual property used to provide the Services;
- Adapting, modifying or creating derivative works based on the Services or technology underlying the Services, or other users’ content, in whole or part;
- Duplicating, licensing, sublicensing, publishing, broadcasting, transmitting, distributing, performing, displaying, selling, rebranding, or otherwise transferring information found on or through the Services (excluding content posted by you) except as permitted in these Terms or as expressly authorized by Pop Capacity in writing;
- Using any method, software or program designed to collect identity information, authentication credentials, or other information;
- Transmitting or receiving, uploading, using or reusing material that (1) is abusive, indecent, defamatory, harassing, obscene or menacing, or a breach of confidence, privacy or similar third party rights; or (2) violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets or copyrights;
- Falsifying user identification information;
- Using the Services for anything other than lawful purposes including, but not limited to, violating any applicable local, state, national or international law; or
- Impersonating any person or entity, including, but not limited to, a Pop Capacity representative, or falsely stating or otherwise misrepresenting your affiliation with a person or entity.
To terminate your account, please contact Pop Capacity via [[email protected] and/or (858)752-2055] We may terminate your use of the Services at any time for any reason, and we may prohibit your use of the Services at any time in our sole discretion. These Terms shall remain in effect at all times after the termination of your use of the Services.
Warranty Disclaimer; Release
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, POP CAPACITY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. POP CAPACITY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS WILL BE CORRECTED OR THAT THE SERVICES, OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. POP CAPACITY DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF MATERIALS ON OR THROUGH THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE.
POP CAPACITY DOES NOT GUARANTEE THE SUITABILITY, SAFETY, ELIGIBILITY, OR ABILITY OF PROVIDERS. AS A USER OF THE SERVICES, IT IS SOLELY YOUR RESPONSIBILITY TO DETERMINE IF A PROVIDER WILL MEET YOUR NEEDS AND EXPECTATIONS. POP CAPACITY IS NOT OBLIGATED TO PARTICIPATE IN DISPUTES BETWEEN YOU AND ANY OTHER USER OF THE SERVICES, OTHER THAN WITH RESPECT TO CC PROVIDER. BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO SITUATIONS INVOLVING PROVIDERS OR OTHER USERS THAT ARE POTENTIALLY UNSAFE, OFFENSIVE, HARMFUL TO MINORS, OR OTHERWISE OBJECTIONABLE, AND THAT PARTICIPATION WITH PROVIDERS OR OTHER USERS ARRANGED OR SCHEDULED USING THE SERVICES IS SOLELY AT YOUR OWN RISK AND JUDGMENT. CUSTOMERS AND PROVIDERS ARE SOLELY RESPONSIBLE AND BEAR ALL RISKS RELATED TO THEIR INTERACTIONS WITH EACH OTHER. POP CAPACITY SHALL NOT HAVE ANY LIABILITY, RESPONSIBILITY, OR OBLIGATION ARISING FROM OR IN ANY WAY RELATED TO YOUR TRANSACTIONS OR RELATIONSHIPS BETWEEN PROVIDERS AND CUSTOMERS.
YOU AGREE THAT IN NO EVENT SHALL POP CAPACITY BE RESPONSIBLE FOR THE CONDUCT OR SERVICES OF ANY PROVIDER, INCLUDING ANY CLAIM, LOSS, DAMAGE, OR LIABILITY ARISING IN CONNECTION WITH THE ACTS OR OMISSIONS OF ANY PROVIDER. IF YOU ARE A CUSTOMER OR PROVIDER WITH A DISPUTE WITH ANOTHER PROVIDER OR CUSTOMER, YOU AGREE TO, AND HEREBY AUTOMATICALLY, RELEASE POP CAPACITY FROM ANY CLAIMS, LOSSES, DAMAGES, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO SUCH DISPUTE.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, POP CAPACITY’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
Limitation of Liability
POP CAPACITY SHALL NOT BE LIABLE TO ANYONE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) THAT RESULT FROM YOUR USE OF, OR YOUR INABILITY TO USE, THE SERVICES, ANY SERVICES PROVIDED BY TP PROVIDER, OR ANY GOODS OR SERVICES RECEIVED OR NOT RECEIVED IN CONNECTION WITH THE SERVICES, EVEN IF POP CAPACITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. POP CAPACITY WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR. IN NO EVENT SHALL POP CAPACITY’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE GREATER OF (I) THE AMOUNTS ACTUALLY PAID BY OR DUE FROM YOU IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM; OR (II) TEN DOLLARS ($10).
SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, POP CAPACITY’S LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY POP CAPACITY TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION AND THE ABOVE SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
You agree to indemnify, defend and hold harmless Pop Capacity and its officers, directors, employees, agents, licensors and suppliers from and against all losses, liabilities, expenses, damages and costs, including reasonable attorneys’ fees, resulting from (i) your violation of these Terms or any applicable law or regulation, whether or not referenced herein, (ii) your violation of any rights of any third party, including Customers or TP Providers, or (iii) the use or misuse of the Services (including negligent or wrongful conduct) by you or any other person accessing the Services using your account.
Electronic Notices and Disclosures
You acknowledge and agree that Pop Capacity may provide notices and other disclosures to you, required by these Terms, any other agreement, or law, electronically by posting such notices or other disclosures through the Services or by emailing it to you at any email address provided to Pop Capacity by you. Such notices or other disclosures shall be considered received by you following the posting through the Services or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.
Governing Law; Dispute Resolution
These Terms shall be governed by, and construed in accordance with, the laws of the State of Georgia, without reference to its choice and conflict of law rules. Subject to the arbitration provisions below, exclusive venue for any action arising out of or in connection with this agreement shall be in state or federal courts, as applicable, in Atlanta, Georgia. The parties each hereby consent to such jurisdiction and venue and waive any objections to such jurisdiction and venue. Notwithstanding the foregoing, you agree that Pop Capacity shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction.
Excluding claims for injunctive or other equitable relief, for any claim where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution provider mutually agreed upon by the parties. The arbitration shall be conducted by telephone, online or be solely based on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial.
Subject to applicable law to the contrary, you agree that any cause of action arising out of or related to the use of the Services must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred.
These Terms, along with any rules, guidelines or policies published through the Services, constitute the entire agreement between Pop Capacity and you with respect to your use of the Services. If there is any conflict between the Terms and other rules or instructions posted, the Terms shall control. We shall not be liable for damages for any delay or failure of delivery arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures. You may not assign your rights or obligation under these Terms without the prior consent of Pop Capacity. Pop Capacity’s failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right. All headings included in these Terms are included for convenience only, and shall not be considered in interpreting these Terms. These Terms do not limit any rights that Pop Capacity may have pursuant to any intellectual property laws or other laws. All rights and remedies available to Pop Capacity, pursuant to these Terms or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available. No independent contractor relationship, partnership, joint venture, employer-employee or franchise relationship is created by these Terms. there shall exist no right of any person, other than you and Pop Capacity, to claim a beneficial interest in these Terms or any rights occurring by virtue of these Terms.