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Customer Terms of Service

LAST UPDATED NOVEMBER 9, 2020

ABOUT US

We are Pollen (which is the d/b/a of StreetTeam Software LLC, a Delaware limited liability company with offices at 767 S Alameda Street Suite #300   CA 90021, USA) (referred to as Pollen, we, us, our).

StreetTeam Software Limited owns the Pollen promotion network platform (Pollen Platform) which is operated through this site and its related mobile app (together, the Site).

Customer Terms of Service

These Customer Terms of Service, together with the documents referred to, including the Privacy Policy, are an agreement and govern your (Customer, You, Yourself or Your) use of the Site in order to purchase tickets, vouchers and other related services (together, Tickets) to events (Events) and other merchandise (Merchandise), all using links (Links) provided to you by any of our members (Members).

We are not responsible for hosting or operating any Events – these remain the responsibility of Event organizers (Event Organizers).  If you have purchased a Trip, please click here to see additional terms of service that apply.

Please read these Customer Terms of Service carefully before you start to use the Site. By using the Site, you indicate that you accept these Customer Terms of Service (which includes the Privacy Policy) and that you agree to abide by them.

We reserve the right to change these Customer Terms of Service from time to time. If you do not agree to be bound by these Customer Terms of Service (or any revised terms and conditions) you must immediately stop accessing the Site and otherwise stop all activity in relation to the Pollen Platform.

ARBITRATION NOTICE

Except for certain kinds of disputes described below, you agree that disputes arising under these Customer Terms of Service will be resolved by binding, individual arbitration, and BY ACCEPTING THESE MEMBER TERMS OF SERVICE, YOU AND POLLEN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See the “Dispute Resolution and Arbitration” Section below).

1.  TERMS OF SERVICE AND OUR ROLE

1.1  Each Event Organizer authorizes us as its commercial agent to conclude the sale of its Tickets and Merchandise on that Event Organizer’s behalf via the Site, to promote such Tickets and Merchandise via the Site and Members, and to deliver or arrange delivery of such Tickets and Merchandise to buyers.  In this limited capacity, we are neither the buyer nor the seller (or reseller) of the Tickets or Merchandise that the Event Organizer offers for sale. We are not your agent for any purpose, and we are not a party to any Ticket or the sales contract relating to the Ticket or Merchandise.

1.2 We are only responsible for operating the Pollen Platform and the Site, for managing our Members, promoting Tickets and Merchandise via the Site and Members and concluding the sale and delivery of Tickets and Merchandise.  We are not responsible for running Events, or for agreeing or performing any obligations under the terms of any Tickets or Event terms provided by Event Organizers that apply to you in relation to a specific Event (Event Terms).  There may be additional Event Terms provided by Event Organizers that apply to you. In the event of any conflict between these Customer Terms of Service and any Event Terms, these Customer Terms of Service shall prevail.

1.3 The Event Organizer is the seller of record for all sales via the Site, but you pay us via the Site for any Ticket(s) and/or Merchandise that you purchase. Your obligation to pay for any Ticket and/or Merchandise is satisfied when you properly pay us for the item(s) via the Site. Because we conclude the sale on behalf of the Event Organizer and your payment to us satisfies your obligation to pay for the items you purchase from the Event Organizer, our name will appear on your payment card statement (which may also display the Event Organizer’s name). We will dispatch or arrange for the dispatch of the item(s) you have purchased after receiving our notification of your order.  You may only pay for an item via the Site and the Event Organizer must not invoice you outside the Site.

1.4 You must contact us via support@pollen.co if you need to request a refund.  We may in our sole discretion investigate or decline to process any transaction involving any item purchased via the Site. We do not charge you any fee for the Site, we charge Event Organizers for acting on their behalf in the limited capacity described above. Except as otherwise expressly provided in these Customer Terms of Service, we are not the agent, intermediary or other representative of the Event Organizer. We are not a fiduciary or trustee of the Event Organizers. Nothing in these Customer Terms of Service is intended to confer any benefit or entitlement on any person other than you and the Event Organizer.

2. AVAILABILITY OF THE PLATFORM

2.1 Although we endeavour to provide you with the best service possible, we do not guarantee that the Site will be uninterrupted or error-free all of the time, and we are not responsible for any losses arising from such errors or interruptions. If you notice an error, please contact us.

2.2 In particular, your access to the Site may be restricted at any time to allow for repairs, maintenance, improvement or for other reasons. We will endeavour to restore the Site's availability as soon as we reasonably can.

2.3 In the event that the Site is unavailable and you have any queries relating to new or existing Orders, please contact us on support@pollen.co

3. INTELLECTUAL PROPERTY RIGHTS

3.1 StreetTeam Software Limited is the owner or the licensee of all intellectual property rights in and to the Site, and in the material published on it. Those works are protected by copyright laws and treaties. All such rights are reserved to StreetTeam Software Limited and its licensors. As a visitor to the Site, you may download a single copy of the material for your own non-commercial, private viewing purposes only. No copying or distribution for any commercial or business use is permitted without our prior written consent.

3.2 You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. In addition, you may not display the contents of the Site surrounded or framed or otherwise surrounded by material not originating from us without our consent.

3.3 StreetTeam Software Limited 's status (and that of any identified contributors) as the authors of material on the Site must always be acknowledged.

3.4 If you print off, copy or download any part of the Site in breach of these Customer Terms of Service, your right to use the Site will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.

4. ACCEPTABLE USE

4.1 You may use the Site only for lawful purposes. You may not use the Site:

  • 4.1.1 in any way that breaches any applicable local, national or international law or regulation;
  • 4.1.2 in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
  • 4.1.3 for the purpose of harming or attempting to harm minors in any way;
  • 4.1.4 to send, knowingly receive, upload, download, use or re-use any material which does not comply with our content standards below;
  • 4.1.5 to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam); or
  • 4.1.6 to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.

4.2 You also agree not to access without authority, interfere with, damage or disrupt:

  • 4.2.1. any part of the Site;
  • 4.2.2. any equipment or network on which the Site is stored;
  • 4.2.3 any software used in the provision of the Site; or
  • 4.2.4 any equipment or network or software owned or used by any third party.

5. CHILDREN AND YOUNG PEOPLE

By accepting these Customer Terms of Service, you confirm that you are at least 16 years of age or more.  Our Site is primarily aimed at users who are over the age of 18. We take no responsibility or liability for Links provided as a result of interactions with Members which relate to age-restricted Tickets or Merchandise.

6. PURCHASE OF TICKETS AND MERCHANDISE

In order to purchase Tickets or Merchandise you must have received a Link from us following an interaction with a Member. Once you have received a Link from us, you will be able to access the Site to place orders for Tickets and Merchandise (Orders). Links that have been sent to you will expire after a certain time (to be determined by us from time to time) and either we or Members may cancel such Links at any time. Links sent relate to a request for Tickets and/or Merchandise and do not reserve any such Tickets or Merchandise. The information in the Link and all sales are subject to availability, changes in price and cancellation.

The following clause 6.1 relates to the purchase of Tickets using the Site. Depending on the Event to which such Tickets relate, the Event Organizer may have their own Event Terms relating to purchase, delivery and refunds, or purchases may be made via a third-party ticket seller. If applicable, please read such additional Event Terms carefully.

6.1 Purchase of Tickets

  • 6.1.1 Your submission of an Order for Tickets amounts to an offer to enter into a contract to buy the Ticket(s) from the Event Organizer via the Site on the basis of the Customer Terms of Service and any applicable Event Terms; you cannot then withdraw or cancel your Order except as specifically stated in these Customer Terms of Service. No Order is accepted by us until we send you an email confirming that your Order has been accepted.
  • 6.1.2 You understand that, as your purchase of Tickets relates to an Event on a specified date or within a specified period of time, you are not statutorily entitled to cancel your Order and, as such, once your Order has been accepted by us in accordance with clause 7.1.1, you will not be able to cancel it and/or obtain a refund.
  • 6.1.3 We may reject your Order for any reason prior to our acceptance of it. If we reject your order after payment has already been taken, we will immediately provide you with a refund.
  • 6.1.4 Any deposits you pay to us are non-refundable. If you choose not to finalise your purchase and pay any outstanding amounts, you forfeit your deposit and will not be entitled to receive any Tickets.
  • 6.1.5 Purchase of Physical Tickets
  • a) As between you and us, this clause 6.1.5 applies to physical Tickets and vouchers or Event-related Sites (Physical Tickets) you purchase using the Site.
  • b) If applicable, you may opt to have Physical Tickets sent to you by post or, in certain circumstances you may be able to collect them from a box office, details of which will be provided at checkout.
  • c) Where you have opted to have Physical Tickets sent to you by post, we will send you an email confirming that Physical Tickets have been dispatched (a Dispatch Confirmation). Please note that this may not be until nearer the Event date.
  • d) Your order will be fulfilled by the delivery date set out in the Dispatch Confirmation or, if no date is specified, then within 30 days of the Dispatch Confirmation.
  • e) Physical Tickets purchased will be at your risk from the time of delivery to you or a person nominated by you to receive the Physical Tickets on your behalf.
  • 6.1.6 Purchase of E-Tickets
  • a) As between you and us, this clause applies to electronic Tickets and vouchers or Event-related Sites for electronic delivery (e-Tickets) you purchase using the Site.
  • b) Once your Order has been accepted you will receive an email from us containing instructions as to how to access your e-Ticket.
  • c) We are only able to modify details on an e-Ticket(s) within a certain timeframe, details of which will be provided in our acceptance of your Order.
  • d) You are able to download each e-Ticket file as many times as you like. You may export, burn (if applicable) or copy products (where permitted) solely for personal non-commercial use. You may not transfer, distribute, resell, upload or otherwise deal with e-Tickets, save as expressly permitted under these Customer Terms of Service.
  • 6.1.7 The price (and currency) of Tickets is as quoted on the Link from time to time (the Price). The Price stated includes applicable taxes, for example sales tax. Delivery charges (where applicable) will be displayed at checkout.
  • 6.1.8 You authorize us and our third party payment provider(s) as we may choose to engage from time to time to take payments and/or charge your payment card for the relevant amounts that you agree to pay at checkout for each purchase, by continuous payment authority. If your payment details change, your card provider may provide us with updated card details. We may use these new details for your future Orders in order to help prevent any interruption to the Site. If you would prefer to opt out from this service, please contact us. You may revoke your continuous payment authority by the end of the business day before the agreed date for the day on which payment is due to be made by informing your payment service provider or us. But where you inform your payment service provider of your withdrawal of consent you should also give us notice because your withdrawal of consent will not affect any continuing obligation to pay us that you may have, in which case you would need to pay us with an alternative card or other payment method acceptable to us.
  • 6.1.9 Upon placing an Order, a transaction may be sent to your bank to authorize or re-authorize it and prevent fraud. This transaction will either be for a zero value, or for a payment of $1 or less which will be taken and then immediately voided. It is possible that your bank may temporarily register this charge on your account balance. You agree not to hold us responsible for banking charges incurred due to payments on your account.

6.2 Purchase of Merchandise

  • 6.2.1 As between you and us, this clause 6.2 applies to merchandise (Merchandise) you purchase using the Site. The price (and currency) of Merchandise is as quoted on the Site from time to time, and includes any applicable sales taxes. Delivery charges (where applicable) will be displayed at checkout.
  • 6.2.2 Your submission of an Order for Merchandise amounts to an offer to enter into a contract to buy the Merchandise from the Event Organizer via the Site on the basis of the Customer Terms of Service and any applicable Event Terms; you cannot then withdraw or cancel your Order except as specifically stated in these Customer Terms of Service. No Order is accepted by us until we send you an email confirming that your Order has been accepted.
  • 6.2.3 We may reject your Order for any reason prior to our acceptance of it. If we reject your order after payment has already been taken, we will immediately provide you with a refund.
  • 6.2.4 Any deposits you pay to us are non-refundable. If you choose not to finalise your purchase and pay any outstanding amounts, you forfeit your deposit and will not be entitled to receive any Merchandise.
  • 6.2.5 You may opt to have Merchandise sent to you by post or, in certain circumstances you may be able to collect them from an Event (or other specified location), details of which will be provided at checkout. Where you have opted to have Merchandise sent to you by post, we will send you an email confirming that Merchandise has been dispatched (a Dispatch Confirmation).
  • 6.2.6 Your Order will be fulfilled by the delivery date set out in the Dispatch Confirmation or, if no date is specified, then within 30 days of the Dispatch Confirmation.
  • 6.2.7 Merchandise purchased will be at your risk from the time of delivery to you or a person nominated by you to receive the Merchandise on your behalf.
  • 6.2.8 You may cancel a purchase of Merchandise any time within 14 days beginning on the day after you receive the Merchandise by  emailing us at support@pollen.co.
  • 6.2.9 Please return the Merchandise to us immediately in the same condition you received it. We will provide you with a refund within 14 days of our receipt of the returned Merchandise made to the bank account you used to make the purchase. If the Merchandise is damaged or we reasonably believe that you have tampered with it we may deduct an amount from any refund due to you, up to a maximum of the full value of the Merchandise.
  • 6.2.10 Please note that this right to cancel does not apply to Tickets.

7. INFORMATION

While we take every care to ensure that the information on the Site is accurate and complete, some of it, including (but not limited to) information about Events and Merchandise, is supplied to us by third parties and we are unable to check its accuracy or completeness. You are advised to verify the accuracy of any information before relying on it.

8. LINKS FROM THE SITE

Where the Site contains links to other sites and resources provided by third parties we have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.

9. COMPETITIONS AND VOTES

From time to time, we (or selected third parties) may include votes, competitions, promotions or other offers via the Site. Each such offer shall be subject to its own express terms and may not be available in all jurisdictions.

10. ACCESS CHARGES

You shall (at your own cost) be solely responsible for the provision of all equipment, software, systems and telecommunications facilities which are required to enable you to receive and access the Site.

11. VARIATION

We may revise these Customer Terms of Service at any time by amending this page. You are expected to check this page from time to time to take notice of any changes we make, as they are binding on you. Some of the provisions contained in these Customer Terms of Service may also be superseded by provisions or notices published elsewhere on the Site.

12. INDEMNITY

To the fullest extent permitted by law, you agree to indemnify us and our affiliates and our respective directors, officers, employees and agents, as well as their licensors and suppliers, from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable legal fees) arising out of:

12.1 any misrepresentation, act or omission made by you in connection with your use of the Service;

12.2 any non-compliance by you with these Customer Terms of Service; or

12.3 any claims brought by third parties arising from or related to your access or use of the Site or other information made available by you to the Site.

13. FEEDBACK

13.1 While we are continually working to develop and evaluate our own product ideas and features, we know we don’t have all the answers. We therefore welcome your feedback, comments and suggestions. If you choose to contribute by sending Pollen or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games or other types of content), promotions, strategies or product/feature names or any related documentation, artwork, computer code, diagrams or other materials (collectively Feedback), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Pollen, you agree to the following:

  • 13.1.1 Pollen has no obligation to review, consider or implement your Feedback, or to return to you all or part of any Feedback for any reason;
  • 13.1.2 Feedback is provided on a non-confidential basis, and Pollen is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
  • 13.1.3 You irrevocably grant Pollen perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.

14. TERMINATION

You may terminate these Customer Terms of Service by sending written notification to Pollen pursuant to the contact information set forth below, deleting the Site from your mobile device and terminating all other uses of the Site. Pollen reserves the right, in its sole discretion, to restrict, suspend or terminate these Customer Terms of Service and your access to all or any part of the Site at any time without prior notice or liability if you breach any provision of these Customer Terms of Service or violate any third party intellectual property rights. Pollen may further terminate these Customer Terms of Service immediately for any other reason with or without notice to you, using the email address associated with your account credentials. Pollen reserves the right to change, suspend or discontinue all or any part of the Site at any time without prior notice or liability.

1.1 Sections 2.1, 3.1, 3.2, 3.4, 3.5, 7, 8, 12, 13, 14.2, and 18 will survive termination of these Customer Terms of Service.

15. MISCELLANEOUS

These Customer Terms of Service, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Customer Terms of Service, are the entire and exclusive understanding and agreement between you and Pollen regarding your use of the Site. You may not assign or transfer these Customer Terms of Service or your rights under these Customer Terms of Service, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Customer Terms of Service at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Customer Terms of Service, or any provision of these Customer Terms of Service, be a waiver of any subsequent breach or default or a waiver of the provision itself. No waiver will be effective against Pollen unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Use of section headers in these Customer Terms of Service is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Customer Terms of Service the use of the word “including” means “including but not limited to”. If any part of these Customer Terms of Service is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.  You agree that no joint venture, partnership, employment or agency relationship exists between you and Pollen as a result of these Customer Terms of Service or use of the Site. These Customer Terms of Service will inure to the benefit of our successors and assigns.

16. GOVERNING LAW

These Customer Terms of Service are governed by the laws of the State of California without regard to conflict of law principles. You and Pollen submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Southern District of California for resolution of any lawsuit or court proceeding permitted under these Customer Terms of Service.

17. ADDITIONAL TERMS

Your use of the Site is subject to all additional terms, policies, rules, or guidelines applicable to the Site or certain features of the Site that we may post on or link to from the Site (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Customer Terms of Service.

18. CONSENT TO ELECTRONIC COMMUNICATIONS

By using the Site, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

19. NOTICE TO CALIFORNIA RESIDENTS

If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Site or to receive further information regarding use of the Site.

20. NO SUPPORT

We are under no obligation to provide support for the Site. In instances where we may offer support, the support will be subject to published policies.

21. NO WARRANTIES

A.     THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. Pollen DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. Pollen DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND Pollen DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

B.    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR Pollen ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING Pollen OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SITE AND YOUR DEALING WITH ANY OTHER MEMBER, BRAND MANAGER, OR OTHER INDIVIDUAL, INCLUDING, TO AVOID DOUBT, YOUR SAFETY AT ANY EVENT. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SITE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.

C.    WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALTHOUGH POLLEN PROVIDES INFORMATION ABOUT VARIOUS EVENTS ON THE SITE, POLLEN DOES NOT RECOMMEND ANY OF THE EVENTS AND DOES NOT PROVIDE THE EVENTS. FURTHER, POLLEN DOES NOT AND CANNOT GUARANTEE THAT ITS IDENTITY VERIFICATION PROCESSES (WHETHER OF POLLEN MEMBERS OR BRAND MANAGES) ARE ACCURATE AND, TO THE FULLEST EXTENT PERMITTED BY LAW, POLLEN DISCLAIMS ANY LIABILITY ARISING OUT OF A POLLEN’S FAILURE TO ACCURATELY VERIFY THE IDENTITY OF A POLLEN MEMBER OR BRAND MANAGER. YOU SHOULD EXERCISE COMMON SENSE AND CAUTION TO PROTECT YOUR AND OTHERS’ PERSONAL PROPERTY AND PERSONAL SAFETY. YOU AGREE THAT IT IS YOUR RESPONSIBILITY TO TAKE REASONABLE PRECAUTIONS IN ALL ACTIONS AND INTERACTIONS WITH ANY THIRD PARTY YOU INTERACT WITH IN OR THROUGH THE SITE.

D.    THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

E.     Pollen does not disclaim any warranty or other right that Pollen is prohibited from disclaiming under applicable law.

22. LIMITATION OF LIABILITY

A.     TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL Pollen BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY Pollen ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

B.     TO THE FULLEST EXTENT PERMITTED BY LAW, POLLEN WILL NOT HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSSES; COSTS OR DAMAGES OF ANY KIND INCURRED OR SUFFERED BY YOU AS A RESULT OF AN EVENT.

C.    EXCEPT AS PROVIDED IN THE SECTION TITLED “DISPUTE RESOLUTION AND ARBITRATION” AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF POLLEN TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO POLLEN FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.

D.    EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION 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 “LIMITATION OF LIABILITY” SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

23. DISPUTE RESOLUTION AND ARBITRATION

A.     Generally. In the interest of resolving disputes between you and Pollen in the most expedient and cost effective manner, and except as described in sub-section B of this Section, you and Pollen agree that every dispute arising in connection with these Customer Terms of Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Customer Terms of Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Customer Terms of Service. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND POLLEN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

B.     Exceptions. Despite the provisions of sub-section A of this Section, nothing in these Customer Terms of Service will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

C.    Arbitrator. Any arbitration between you and Pollen will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (AAA) under its Consumer Arbitration Rules (collectively, AAA Rules) as modified by these Customer Terms of Service. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Pollen. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

D.    Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (Notice of Arbitration). Pollen’s address for Notice is: 767 S Alameda Street Suite #300, CA 90021. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Pollen may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Pollen must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Pollen in settlement of the dispute prior to the award, Pollen will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.

E.     Fees. If you commence arbitration in accordance with these Customer Terms of Service, Pollen will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles, CA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Pollen for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

F.     No Class Actions. YOU AND POLLEN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Pollen agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

G.    Modifications to this Arbitration Provision. If Pollen makes any future change to this arbitration provision, other than a change to Pollen’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Pollen address for Notice of Arbitration, in which case your agreement with Pollen will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

H.    Enforceability. If subs-section F of this Section is found to be unenforceable or if the entirety of this “Dispute Resolution and Arbitration” Section is found to be unenforceable, then the entirety of this “Dispute Resolution and Arbitration” Section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in the “Governing Law”  Section will govern any action arising out of or related to these Customer Terms of Service.