Terms of Service

The effective date of these Terms of Service is 12.20.2020.

These terms of service (“Terms of Service”) govern your access to and use of the mobile applications, website, and any other online services (collectively, the “Services”) provided by Ponica Media or its legal affiliates (“Ponica Media”, “we” or “us”), including any content, functionality, features and applications offered on or through the Services to you as a guest or registered user.

Please read these Terms of Service carefully before you start to use our Services. If you do not agree to be bound by these Terms of Service, you are not permitted to use our Services.

Please note that Part C of these Terms of Service, which apply to U.S. Users and other Users outside Europe, contain Indemnification, Governing Law and Dispute Resolution, and Disclaimer of Warranties and Limitation of Liability Sections that affect your rights, including your ability to bring legal claims against us.

The Terms of Service are divided into four parts that apply as follows:

  • The provisions of Part A of the Terms of Service (“General Terms”) apply to the use of the Services by all users.
  • The provisions of Part B of the Terms of Service (“Terms for Purchase of Premium or Subscription Services”) apply in addition to Part A of the Terms of Service if you purchase a paid application or subscribe to premium features or services across the Services.
  • The provisions of Part C of the Terms of Service (“Additional Terms for U.S. Users and Users Outside Europe”) apply in addition to Part A and Part B of the Terms of Service for users that use our Services from the United States and elsewhere outside Europe.
  • The provisions of Part D of the Terms of Service (“Additional Terms for European Users”) apply in addition to Part A and Part B of the Terms of Service for users that use our Services from a location in Europe.

 

Table of Contents

Part A – GENERAL TERMS
1. CONCLUSION OF THE AGREEMENT
2. SUBJECT MATTER
3. YOUR RIGHTS
4. PROHIBITED USES
5. YOUR RESPONSIBILITIES
6. USER CONTRIBUTIONS
7. SUSPENSION AND TERMINATION
8. LINKING TO THE SERVICES
9. LINKS ON OUR SERVICES; ACCESS TO 3RD PARTY CONTENT
10. SERVICES CONTENT
11. DOWNLOADS THROUGH ONLINE STORES
12. PRIVACY
13. QUALITY STANDARD
14. RESERVATION OF CHANGES / CHANGES TO THE SERVICES
15. WAIVER AND SEVERABILITY
16. ENTIRE AGREEMENT
17. YOUR COMMENTS AND CONCERNS

Part B – TERMS FOR PURCHASE OF PREMIUM OR SUBSCRIPTION SERVICES
1. SUBSCRIPTIONS / PURCHASES
2. VIRTUAL ITEMS
3. TRIAL VERSIONS
4. USER RIGHTS; TERM; TERMINATION
5. PAYMENT

Part C – ADDITIONAL TERMS FOR U.S. USERS AND USERS OUTSIDE EUROPE
1. INDEMNIFICATION
2. GOVERNING LAW AND DISPUTE RESOLUTION
3. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
4. DIGITAL MILLENIUM COPYRIGTHT ACT (DMCA)

Part D – ADDITIONAL TERMS FOR EUROPEAN USERS
1. RESERVATION OF CHANGES
2. LIMITATION OF LIABILITY
3. DISPUTE RESOLUTION
4. WITHDRAWAL RIGHT

 

PART A OF TERMS OF SERVICE – GENERAL TERMS

1. CONCLUSION OF THE AGREEMENT

1.1 By clicking the “Get”, “Buy”, “Install”, “Download” or similar button in the respective online store such as the Apple App Store or the Google Play Store (“Online Store”) or when clicking “accept” or “agree” setting up an account for the use of the Services, you agree to be bound and abide by these Terms of Service.

1.2 Please do not use our Services if you do not agree to these Terms of Service.

1.3 You can only conclude an agreement with Ponica Media and use the Services if you are of legal age in your country of residence.

2. SUBJECT MATTER

2.1 The scope and features of the Services are described in the respective Service descriptions located on the relevant website or in the relevant Online Store, and may vary by operating system, device, region and version of the Services.

2.2 Where you purchase any Service (“Purchase Services”) or subscribe to specific Services (“Subscription Services”), the Purchase or Subscription Services will contain additional features, which are not included in the free versions.

2.3 The Services may comprise additional features in the future. We may provide additional terms and conditions for these additional features.

2.4 Please note that if you remove and reinstall a Subscription Service or Purchase Service on a new device, you may lose your subscription or purchase or any Ponica Media Content, as defined below, you have received or purchased.

3. YOUR RIGHTS

3.1 We grant you a limited, non-exclusive, non-sublicensable, non-transferable right to access and use the Services for lawful purposes in accordance with these Terms of Service for the term and subject to the restrictions set out in the respective Service descriptions. Please note that you may not be able to access and use the Services outside of the region where you purchased or subscribed for certain Services, or your use or access may be limited.

3.2 The Services contain content owned or licensed by Ponica Media, including name, logo, text, images, audio/visual works, icons and scripts (“Ponica Media Content”). Ponica Media Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Ponica Media, Ponica Media owns and retains all rights in Ponica Media Content and the Services.

3.3 You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Ponica Media Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, rent, lease, sublicense or otherwise exploit Ponica Media Content without the prior written permission of Ponica Media.

4. PROHIBITED USES

You agree not to use or access any of the Services:

i. In any way that violates any applicable law, rule, or regulation (including, without limitation, any intellectual property laws or laws regarding the transfer of personal data or software to and from the US or other countries).

ii. To post violent, defamatory, indecent, sexually explicit, discriminatory, unlawful, infringing, hateful or other inappropriate photos or other content, including any posts intended for defaming, stalking, bullying, abusing, harassing, threatening, impersonating, harming, impersonating or intimidating people or entities.

iii. Attempting to deceive or exploit anyone in any way, such as by exposing them to inappropriate content, asking for personal data, including, without limitation, your or any other person’s social security or alternate national identity numbers, phone numbers or email addresses.

iv. To create, solicit, transmit, or procure the sending of, any unwanted, unsolicited or harassing comments or communications, including advertising or promotional material, without our prior written consent, including any “junk mail”, “chain letter”, “spam” or any other similar solicitation.

v. To impersonate, attempt to impersonate, or falsely imply that you are associated with, Ponica Media, a Ponica Media employee, Ponica Media’s URL or domain name, another user, or any other person or entity (including, without limitation, by using email addresses or usernames associated with any of the foregoing).

vi. Use the Services in any manner that could disable, alter, overburden, damage, or impair them, or engage in any other conduct that restricts or interferes with any other party’s use, which, as determined by us, may harm Ponica Media or users of the Services and expose them to liability, including but not limited to by transmitting any worms, viruses, spyware, malware or any other code of a destructive, malicious, intrusive, or disruptive nature.

vii. To circumvent or disable any content protection system or digital rights management technology used with any Service; decompile, reverse engineer, disassemble or otherwise reduce any Services to a human-readable form; remove identification, or other proprietary notices; or access or use any Services in an unlawful or unauthorized manner or in a manner that suggests an association with our products, services or brands.

viii. To create accounts or access data (including user information) through unauthorized means, by using an automated device, caching, script, bot, spider, crawler or scraper.

5. YOUR RESPONSIBILITIES

5.1 You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account, followers, username, or any account rights. Ponica Media prohibits the creation of accounts for anyone other than yourself (or a person under your legal guardianship), and you agree that you will not create an account for anyone other than yourself, with the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or clients or legal guardians. You also represent that all information you provide or provided to Ponica Media upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy.

5.2 You are responsible for keeping your password secret and secure.

5.3 You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Services for reconstruction of any lost data.

5.4 You are solely responsible for your interaction with other users of the Services, whether online or offline. Ponica Media reserves the right, but has no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment when interacting with others, including when you submit or post User Contributions, as defined below, or any personal data or other information.

6. USER CONTRIBUTIONS

6.1 The Services may contain message boards, chat rooms, personal web pages or profiles, forums, comment sections, bulletin boards and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively, “User Contributions”) on or through the Services.

6.2 With regard to your User Contributions you are responsible for

i. All of your User Contributions complying with these Terms of Service; and

ii. Owning and controlling all rights to the User Contributions posted by you on or through the Services, or otherwise having the right to grant the rights and licenses set forth in these Terms of Service. You will pay for all royalties, fees, and any other monies owed by reason of User Contributions you post on or through the Services.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Ponica Media, have fully responsibility for such User Contributions, including their legality, reliability, accuracy, and appropriateness.

6.3 You hereby grant Ponica Media a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use, copy, reproduce, modify, perform, display, distribute, disclose and otherwise make available to third parties the User Contributions that you post through the Services or otherwise provide to Ponica Media. Ponica Media hereby accepts the grant of these rights. You are responsible to ensure that the User Contributions are free of the rights of third parties that would prevent the use of User Contributions by Ponica Media. Ponica Media may remove, edit (except for any distortion of the User Contributions), or block User Contributions, or accounts, containing content that we determine in our sole discretion violates these Terms of Service.

6.4 User Contributions will be considered non-confidential and non-proprietary. Furthermore, the Internet may be subject to breaches of security and the submission of User Contributions or other information may not be secure.

6.5 It is in Ponica Media’s sole discretion to share, reproduce, publish, or post through the Services any User Contributions submitted by you or on your behalf, unless otherwise stated in the Service descriptions.

6.6 If you choose to send us content, information, ideas, suggestions, or other materials, you agree that Ponica Media is free to use any such content, information, ideas, suggestions or other materials, for any purposes whatsoever, including, without limitation, developing, improving and marketing our Services, without any liability or payment of any kind to you.

6.7 Ponica Media is not a backup service and you agree that you will not rely on the Services for the purposes of storing User Contributions.

7. SUSPENSION AND TERMINATION

7.1 You may terminate this agreement at any time without giving a reason in writing or by email, using the specific features in the Service, or by deleting the Service on all your devices.

7.2 Upon termination, all licenses and other rights granted to you in these Terms of Service will immediately cease.

7.3 We are entitled to discontinue or to terminate the Services at any time. We will inform you about the discontinuation with a notice period of at least fourteen (14) days, using any reasonable means including notification through the applicable Service(s) email, or posting on this website. This notice period does not apply when there are reasons which force us to instantly terminate the Services.

7.4 If you do not comply with these Terms of Service, we reserve the right to suspend your access to the Services until you have remedied the non-compliance. In the case of a material or repeated violation we shall be entitled to terminate the Services for cause if you have not remedied the violation after giving you prior notice. In case of an irreparable material violation we shall have the right to terminate the Services with immediate effect.

8. LINKING TO THE SERVICES

8.1 You may link to our website homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.

8.2 The Services may provide certain social media features that enable you to: link from your own or certain third-party websites to certain content on our Services; send communications with certain content, or links to certain content, using the Services; or cause limited portions of content on the Services to be displayed or appear to be displayed on your own or certain third-party websites.

8.3 You may use these features solely as they are provided by us, and must not otherwise: establish a link from any website that is not owned by you; cause the Services or portions thereof to be displayed on, or appear to be displayed by, any other site (for example, scraping, framing, deep linking, or in-line linking); or take any action with respect to the Services that is inconsistent with these Terms of Service.

9. LINKS ON OUR SERVICES; ACCESS TO 3RD PARTY CONTENT

If the Services contain links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. Certain Services may also enable you to download and/or stream content from third party sources, such as podcasts or video clips. We have no control over the contents of any third party sites, content or resources, and (unless otherwise required by applicable law) accept no responsibility for them or for any loss or damage that may arise from your use of them. We also cannot assure you that third parties permit or authorize your use of content that we link or enable access to. If you decide to access any of the third-party sites, content or resources linked to our Services, you do so entirely at your own risk and subject to the terms and conditions of use of such third party providers.

10. SERVICES CONTENT

10.1 We may update the content in our Services from time to time, but it will not necessarily be complete or up-to-date. Any of the material in the Services may be out of date at any given time, and we are under no obligation to update such material. Although it is Ponica Media’s intention for the Services to be available as much as possible, there will be occasions when the Services may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.

10.2 Ponica Media reserves the right to remove any content from the Services for any reason, without prior notice. Content removed from the Services may continue to be stored by Ponica Media, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order.

11. DOWNLOADS THROUGH ONLINE STORES

If you download a Service through an Online Store, you will be asked to agree and adhere to the relevant Online Store terms, which will also apply in addition to these Terms of Service. You should read these Online Store terms carefully.

12. PRIVACY

Our privacy policy, available at informs you how we process your personal data and how we use cookies, advertising identifiers and similar technologies.

13. QUALITY STANDARD

We strive to provide our Services under these Terms of Service without errors or interruptions. However, a faultless and uninterrupted Service cannot always be guaranteed. In the event of errors or interruptions, we will generally attempt to restore our normal operations as soon as possible.

14. RESERVATION OF CHANGES / CHANGES TO THE SERVICES

14.1 We may amend these Terms of Service at any time. We will notify you of such amendment in advance by email or by posting the updated Terms of Service on this website. You agree to check this website regularly to be informed of any updates to these Terms of Service.

14.2 Ponica Media is entitled to reasonably add new features to the Services, change Services or discontinue parts of the Services to (i) develop, improve or extend the Services, (ii) follow technological developments and keep the Services up to date, or (iii) to keep our Services economically viable in case of a Service no longer being used by many of our users or substantially increased costs (“Change”). In case you disagree to a Change you have the right to terminate the agreement at any time in accordance with section 7 of Part A of the Terms of Service.

15. WAIVER AND SEVERABILITY

15.1 No waiver of by Ponica Media of any term or condition set out in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Ponica Media to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.

15.2 If any provision of these Terms of Service becomes invalid or unenforceable, this shall not affect the validity of the remaining provisions of these Terms of Service.

16. ENTIRE AGREEMENT

The Terms of Service constitute the sole and entire agreement between you and Ponica Media regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.

17. YOUR COMMENTS AND CONCERNS

Please direct questions or concerns regarding these Terms of Service or the Services to Ponica Media at ksusha.kha.apps@gmail.com or by mail at: 38/1 Moo4 Si Sunthon, Thalang, Phuket 83110, Thailand.

 

PART B OF THE TERMS OF SERVICE – TERMS FOR PURCHASE OF PREMIUM OR SUBSCRIPTION SERVICES

 

This Part B of the Terms of Service (“Terms for Purchase of Premium or Subscription Services”) applies in addition to Part A of the Terms of Service if you purchase a paid application or subscribe to premium features or services across the Services. If there is a conflict between the provisions of this Part B of the Terms of Service and the provisions of Part A of the Terms of Service, the provisions of this Part B of the Terms of Service shall take precedence.

1. SUBSCRIPTIONS / PURCHASES

1.1 Ponica Media may offer certain Services that are subject to a fee. These fees can be one-time fees to be paid prior to purchase (“Purchase Services”) or recurring fees (“Subscription Services”).

1.2 The scope and features of the Services and the amount of fees due as well as free trial periods, if applicable, are described in the respective Service descriptions.

1.3 If you buy Purchase Services or obtain Subscription Services, then the relevant Online Store provider’s terms and conditions will also apply. You acknowledge that any billing and transactions are handled by the Online Store provider. You should contact the Online Store provider directly if you have any payment related issues with Purchase or Subscription Services.

1.4 Purchase or Subscription Services may be offered by third-parties and you may be asked to agree to the relevant services terms which will also apply in addition to these Terms of Service. You should read these Online Store terms carefully.

1.5 Subscription Services may include paid subscriptions to special features. These features are subject to change, and certain features may be discontinued or temporarily unavailable as described in the Service descriptions.

2. VIRTUAL ITEMS

2.1 Our Services may enable you to acquire certain virtual items. This includes, for example, virtual currency, points, or similar virtual items (together “Virtual Items”). Virtual Items shall be due for payment immediately after confirmation of the order. Virtual Items have a period of validity as described in the Service descriptions. You agree that the virtual value of any Virtual Item does not correspond or equate to any real-life monetary value, credit balance or currency. You acknowledge that Virtual Items cannot be used outside of the respective Service.

2.2 Any virtual currency or similar balance does not constitute a real-world balance or comprise any stored value. Your right to use the Virtual Items is personal to you unless we agree otherwise, and is limited to your right to use the Services for non-commercial entertainment purposes. You may not re-sell or trade any Virtual Items.

2.3 Virtual Items to be used for purchase of Services (such as virtual currency) have a period of validity of three (3) years beginning with the end of the calendar year in which you purchased the Virtual Items (or if shorter, for the period the applicable Service remains available). The Virtual Items will expire after this period.

2.4 Please note that if you remove and reinstall a Service on a new device, you may lose your in-Service purchases, including any Virtual Items.

3. TRIAL VERSIONS

3.1 We may at our sole discretion offer you Subscriptions and Purchase Services for a certain time free of charge for selected functionalities of the Service or the entire Service (“Trial Version”).

3.2 Unless described otherwise in the Service descriptions, we will convert the Trial Version to a Purchase Service or Subscription Service subject to a fee. This automatic conversion does not apply where, in case of a Subscription Service, you have deactivated the automatic renewal in your iTunes account settings, Google Play account settings or other subscription platform settings at least 24 hours before the end of the trial period or before the respective automatic renewal deadline of the respective subscription platform.

4. USE RIGHTS; TERM; TERMINATION

4.1 The term for a Purchase Service begins with the placement of the order e.g. by clicking “buy”, “get”, “purchase”, “confirm” or “start trial” and/or using additional confirmation methods (e.g. fingerprint) in the respective Service (“Purchase Date”) with an indefinite term until you delete the Service or terminate any premium features of the Purchase Service. In addition to section 3.1 of Part A of these Terms of Service, the use rights granted by Ponica Media are bound to the respective Service that you have purchased and any updates or new releases of the Purchase Service for the first two years beginning with the Purchase Date. Where Ponica Media continues to allow you to use newer versions or releases of the Purchases Services, such use will only be granted on Ponica Media’s sole discretion.

4.2 The term for a Subscription Service begins with the placement of the order (e.g. by clicking “buy”, “get”, “purchase”, “confirm”, “subscribe”, or “start trial” and/or using additional confirmation methods (e.g. fingerprint) in the respective Service) and continues for the initial term (weekly, monthly or yearly) as provided in the applicable Service descriptions (“Initial Term”). The subscription for the Subscription Service will automatically renew for the same period as the Initial Term (“Renewal Term”) and in accordance with the then-current fees as described in the Service descriptions, unless you have deactivated the automatic renewal in your iTunes account settings, Google Play account settings or other subscription platform settings, or used any other termination mechanism on the subscription platform, as applicable, at least 24 hours before the end of the then current subscription term (“Termination Period”). If you have terminated the subscription before the Termination Period, then you will not be able to access and use the Subscription Services, including paid subscriptions to special features, once the Initial Term or the respective Renewal Term has expired. The statutory rights to terminate the agreement for cause shall not be affected. We shall be entitled to terminate the Subscription Service effective as of the end of each Initial or Renewal Term by providing fourteen (14) days prior notice. In case of a termination you are obliged to cancel your subscriptions in your iTunes account settings, Google Play account settings or other subscription platform settings or to use any other termination mechanism on the subscription platform.

4.3 The term of a Trial Version begins with the placement of the order (e.g. by clicking “buy” or “purchase” in the respective Service) ends after the term announced in the Service descriptions (“Trial Period”). The term of a Trial Version ends automatically after the Trial Period without requirement of a termination of either party. Once your Trial Period expires, you will no longer be able to access the Trial Version of the Services. Ponica Media reserves the right (i) to determine if you are eligible to use the Trial Version and (ii) to discontinue any Trial Version without notice at our sole discretion.

5. PAYMENT

5.1 Fees for Purchase Services will be charged to your iTunes account, Google Play account or other platform account at confirmation of purchase. If you make a purchase by accident or want to refund your purchase, please contact the Online Store provider within 24 after you place your purchase. This does not affect any statutory claims for refund, such as the withdrawal right for European users.

5.2 Fees for Subscription Services will be charged to your iTunes account, Google Play account or other platform account at confirmation of purchase for the Initial Term and within 24 hours prior to the beginning of a Renewal Term.

 

PART C OF THE TERMS OF SERVICE – ADDITIONAL TERMS FOR U.S. USERS AND USERS OUTSIDE EUROPE

This Part C of the Terms of Service applies in addition to Part A and Part B of the Terms of Service if you use the Services from the United States and other locations outside of Europe. If there is a conflict between the provisions of this Part C of the Terms of Service and the provisions of Part A or Part B of the Terms of Service, the provisions of this Part C of the Terms of Service shall take precedence. 

1. INDEMNIFICATION OF WARRANTIES AND LIMITATION OF LIABILITY

1.1 You hereby agree to defend, indemnify and hold us, our business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents (collectively, the “Indemnified Parties”) harmless from and against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees incurred by the Indemnified Parties) in connection with any claim or action that:

(i) arises from any alleged breach by you of these Terms of Service or any representations, warranties and/or covenants contained herein
(ii) arises from the Content or effects of any messages you Post using our Services, or
(iii) otherwise arises from or relates to your use of our Services.

1.2 In addition, you acknowledge and agree that the Indemnified Parties have the right to seek damages from you when you use our Services for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with these Terms of Service. To the extent permitted by applicable law, you agree that these damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.

2. GOVERNING LAW AND DISPUTE RESOLUTION

2.1 Claims. In order to expedite the resolution of disputes and control related costs, you and Ponica Media agree that any legal or equitable claim relating to these Terms of Service (referred to as a “Claim”) will be resolved as set forth in this Governing Law and Dispute Resolution Section.

2.2 Informal Resolution and Written Notice of Claim. You and Ponica Media agree that we will first try to resolve any Claim informally by giving informal written notice prior to initiating any formal proceeding (including litigation or other legal proceeding). Accordingly, neither of us may start a formal proceeding for at least thirty (30) days after one of us notifies the other of a Claim in writing (“Notice of Claim”). If Ponica Media has a Claim against you, we will send our Notice of Claim to your email address. If you believe you have a Claim against us, You will send your Notice of Claim to ksusha.kha.apps@gmail.com with “Notice of Claim” clearly indicated in the subject line.

2.3 Arbitration. Please read this carefully. It affects your rights. Ponica Media and you (such references include our respective predecessors in interest, successors and assigns) agree to arbitrate all disputes and claims arising out of or relating to these Terms of Service between Ponica Media and you. The arbitration shall be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Service, and shall be administered by the AAA. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by these Terms of Service. Except as otherwise provided for herein, Ponica Media will pay all AAA filing, administration and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought is improper or not warranted, as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), then the payment of all such fees shall be governed by the AAA Rules. In such case, you agree to reimburse Ponica Media for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. If the arbitrator grants relief to you that is equal to or greater than the value of your demand, Ponica Media shall reimburse you for your reasonable attorneys’ fees and expenses incurred for the arbitration. You agree that, by entering into these Terms of Service, you and Ponica Media are waiving the right to a trial by jury. You and Ponica Media agree that YOU AND Ponica Media 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, you agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, and that if this specific proviso is found to be unenforceable, then the entirety of this arbitration clause shall be null and void.

2.4 Formal Resolution. If we cannot resolve a Claim informally, you and Ponica Media each agree to submit to personal jurisdiction in New York and agree that any and all Claims either of us asserts shall be exclusively brought in the appropriate state or federal court in the Southern District of the State of New York, provided that neither you nor Ponica Media shall be precluded from filing a Claim in small claims court, regardless of whether such small claims court is located in New York, for disputes within the jurisdiction of a small claims court.

2.5 Governing Law and Jurisdictional Issues. These Terms of Service are governed in all respects by the substantive laws of the State of New York and of the United States of America. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. Those who choose to access our Services from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to our Services from any territory where the content is illegal is prohibited. You may not use or export any of the materials available on or through our Services in violation of U.S. export laws and regulations.

3. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY

3.1 No Express or Implied Warranties. TO THE FURTHEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS”, AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PONICA MEDIA MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES’ CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND (INCLUDING LOSS OR DAMAGE TO CONTENT). PONICA MEDIA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND PONICA MEDIA WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. SOME JURISDICTIONS DO NOT ALLOW WARRANTIES TO BE EXCLUDED, RESTRICTED OR MODIFIED AND CONTAIN LIMITATIONS AS TO HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY DEPENDING ON YOUR PLACE OF RESIDENCE. WE ARE NOT LIABLE FOR ANY DELAY OR FAILURE TO PERFORM RESULTING FROM ANY CAUSES BEYOND OUR REASONABLE CONTROL. AS SUCH, WE ARE NOT LIABLE FOR ANY ACTS OR OMISSIONS BY ANY OTHER PARTY FURNISHING A PORTION OF THE SERVICES. USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES IS AT YOUR SOLE RISK. THIS INCLUDES ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE.

3.2 Limitation of Liability. TO THE FURTHEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PONICA MEDIA, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND (INCLUDING LOSS OR DAMAGE TO CONTENT), IN EACH CASE WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PONICA MEDIA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE THAT PONICA MEDIA SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. BY ENTERING INTO THIS AGREEMENT, YOU AGREE THAT OUR LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT OF THE MONTHLY SUBSCRIPTION FEE WE COLLECT FROM YOU, IF ANY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW, THEREBY MINIMIZING OUR LIABILITY TO YOU TO THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW. The Services are controlled and offered by Ponica Media from its facilities in the United States of America. Ponica Media makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.

3.3 New Jersey Residents. Notwithstanding any other terms herein, if you are a New Jersey Resident, these Terms of Service do not limit your rights or our obligations under any applicable statute or law or any other clearly established legal rights, including types and amounts of recovery; nor do they excuse us from any duty to avoid causing harm by means of gross negligence, recklessness, or intentional misconduct; nor do they disclaim our duty of care to our invitees; nor do they require you to defend and indemnify us in the event that any loss is caused by our negligence. 
 

  

4. DIGITAL MILLENIUM COPYRIGHT ACT

4.1 DMCA Take-Down Notices. If you are a copyright owner or an agent thereof and believe that any Content Posted on or through our Services infringes upon your copyrights, you may submit a written notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent (identified at Section 4.2 Ponica Media Copyright Agent below) with the following information:

  • a signature (physical or electronic) of the owner or a person who has been authorized by the owner of the allegedly infringed right to act on their behalf
  • identification of the copyrighted work or other intellectual property that has allegedly been infringed
  • identify the material on our Services that alleged to be infringing, with enough detail so that we are able to locate it (such as providing a URL or URLs for website-Posted Content)
  • a statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law
  • information reasonably sufficient to permit Ponica Media to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted and
  • a statement that the information provided in the notice is accurate, and under penalty of perjury, that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner.

See 17 U.S.C 512(c)(3) for further detail. To expedite our ability to process your request, such written notice may be sent to our designated agent via our online copyright complaint form below. You will need a Ponica Media account in order to utilize this tool:

Copyright Complaint Webform

You acknowledge that if you fail to comply with all of the requirements of this Section 4. Copyright Notices and the Digital Millennium Copyright Act, your copyright notice may not be valid.

4.2 Ponica Media Copyright Agent. Ponica Media’s designated Copyright Agent to receive notifications of claimed infringement is our Copyright Team. Complaints submitted to the above webform are directed to our Copyright Team. If you do not have a Ponica Media account, prefer not to use the Copyright Complaint Webform above, or prefer to contact us via postal mail or email you may do so here:

Post:              

38/1 Moo4 Si Sunthon, Thalang, Phuket 83110, Thailand

Email:

ksusha.kha.apps@gmail.com

4.3 DMCA Notices Only. Only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Ponica Media customer support at ksusha.kha.apps@gmail.com and identified below.

4.4 Counter-Notices. If you believe that your Content that has been removed from our Services is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to Post and use the Content in the manner so Posted or used, you may send a counter-notice containing the following information to our Copyright Agent using the contact information set forth above:

  • your physical or electronic signature
  • a description of the Content that has been removed and the location at which the content appeared before it was removed
  • a statement that you have a good faith belief that the Content was removed as a result of mistake or a misidentification of the Content and
  • your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in the State of New York, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

4.5 Counter-Notice Process. If a counter-notice is received by our copyright agent, Ponica Media may send a copy of the counter-notice to the original complaining party informing such person that Ponica Media may reinstate the removed Content in ten (10) business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may (in Ponica Media’s discretion) be reinstated on our Services by Ponica Media in ten (10) to fourteen (14) business days or more after receipt of the counter-notice.

PART D OF THE TERMS OF SERVICE – ADDITIONAL TERMS FOR EUROPEAN USERS

 

This Part D of the Terms of Service (“Additional Terms for European Users”) applies in addition to Part A and Part B of the Terms of Service if you use the Services from Europe. If there is a conflict between the provisions of this Part D of the Terms of Service and the provisions of Part A or Part B of the Terms of Service, the provisions of this Part D of the Terms of Service shall take precedence.

1. RESERVATION OF CHANGES

If we notify you of an amendment to the Terms of Services as set forth in Section 14.1 in Part A of the Terms of Service, you may then object to this amendment by sending an email to ksusha.kha.apps@gmail.com within thirty (30) days of receipt of the notice of change. If you fail to object within the deadline or continue to use the Services after receipt of the notice of change, the amended provisions shall be deemed to be accepted. You will be informed about this legal consequence separately in the notice of change.

2. LIMITATION OF LIABILITY

2.1 If you use the Services free of charge as described in Part A of these Terms of Service or use a Trial Version, the following applies:

i. Ponica Media is only liable for damage caused by intention or gross negligence, death or personal injury. Any further liability under legal provision is excluded.

ii. Any liability for damages caused by Ponica Media under mandatory statutory provisions remains unaffected.

2.2 If you use a Purchase or Subscription Service as described in Part B of these Terms of Service, the following applies:

2.2.1 Subject to Section 2.2.2 of this Part D of the Terms of Service, Ponica Media’s contractual and statutory liability for damages shall, irrespective of its legal ground, be limited as follows:

i. Ponica Media shall only be liable up to the amount of the foreseeable damages typical for this type of contract, for damages caused by a slightly negligent breach of a material contractual obligation.

ii. Ponica Media shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation and the slightly negligent breach of any other applicable duty of care.

2.2.2 The aforesaid limitations of liability shall not apply to any mandatory statutory liability (e.g. under the German Product Liability Act), liability for assuming a specific guarantee and liability for culpably caused personal injuries.

2.2.3 Except for cases of gross negligence or intent of Ponica Media, you are not entitled to damages in case of a defect or non- or mal-performance of the Services that existed on the Purchase Date or the start of the then-current Initial Term or Renewal Term. Any further rights are excluded. Your right to claim damages within the limits of Section 2.2 of this Part D of the Terms of Service remains unaffected by this Section 2.2.3.

2.2.4 Sections 2.2.1 und 2.2.2 of this Part D of the Terms of Service shall apply accordingly to Ponica Media’s liability for futile expenses.

3. DISPUTE RESOLUTION

Ponica Media is neither willing nor obligated to participate in a dispute resolution proceeding before a consumer arbitration board.

4. WITHDRAWAL RIGHT

If you are a consumer, then you have the following withdrawal right. ‘Consumer’ means any natural person who is acting for purposes which are outside his trade, business, craft or profession.

Please note that any refunds or reimbursements to which you may be entitled must be obtained from the respective Online Store provider through which you made your purchase or payment, using the procedures specified by the Online Store provider.

Withdrawal right for services

Right of Withdrawal

You have the right to withdraw from this agreement within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of the conclusion of the agreement.

To exercise the right of withdrawal, you must inform us (Ponica Media, 38/1 Moo4 Si Sunthon, Thalang, Phuket 83110, Thailand; ksusha.kha.apps@gmail.com) of your decision to withdraw from this agreement by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory.

To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Effects of withdrawal

If you withdraw from this agreement, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this agreement. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.

If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated with us your withdrawal from this agreement, in comparison with the full coverage of the agreement.

Withdrawal rights for digital content

Right of Withdrawal

You have the right to withdraw from this agreement within 14 days without giving any reason.

The withdrawal period will expire after 14 days from the day of the conclusion of the agreement.

To exercise the right of withdrawal, you must inform us (38/1 Moo4 Si Sunthon, Thalang, Phuket 83110, Thailand; ksusha.kha.apps@gmail.com) of your decision to withdraw from this agreement by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory.

To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Effects of withdrawal

If you withdraw from this agreement, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw form this agreement. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.

Expiry of withdrawal right

For a contract to deliver services, the right to withdraw shall expire when we have provided the full service and did not start carrying out the service before you have given your express consent and also acknowledged that you will lose your right to withdraw upon complete contract fulfilment by Ponica Media.

For a contract on delivery of digital contents not on a tangible medium, the right to withdraw shall expire also once we have started to carry out the contract, after you have given your express consent and acknowledged that you will lose your right to withdraw once we start carrying out the performance under the contract.

Model withdrawal form

(complete and return this form only if you wish to withdraw from the agreement)

To

38/1 Moo4 Si Sunthon, Thalang, Phuket 83110, Thailand ksusha.kha.apps@gmail.com

I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),

Ordered on (*) / received on (*)

Name of the consumer(s)

Address of the consumer(s)

Signature of the consumer(s) (only if this form is notified on paper)

Date