Welcome to POCSTOCK.com. Please read these Terms of Service carefully before using the services offered by POCSTOCK, Inc. ("POCSTOCK", "us", "we"). POCSTOCK offers a service in the form of a technology platform and marketplace for licensed content of people of color. Our company further helps businesses create the diverse images they need for their communications by engaging content providers to provide custom content.
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL REQUIRE YOU TO SUBMIT ANY CLAIMS YOU MAY HAVE AGAINST POCSTOCK TO BINDING AND FINAL ARBITRATION. IN ADDITION, UNDER THE ARBITRATION PROVISION, (A) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST POCSTOCK ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (B) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE SECTIONS REGARDING ARBITRATION.
PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY MARKING OFF THE CHECKBOX INDICATING YOUR CONSENT TO THIS AGREEMENT OR BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY ADDITIONAL TERMS PROVIDED BY US. If you are not eligible, or do not agree to this Agreement, then you do not have our permission to use the Services.
The POCSTOCK Site and Services
The Site and the Services enable independent third party professionals ("Contributors") to provide us with content, including, but not limited to, create photographs, illustrations, artwork, animations, videos, paintings, texts, or any other content or media featuring people of color (collectively, "Content"). Individuals and businesses ("Clients") may then obtain a license to use such Content pursuant to the terms of the license agreement between POCSTOCK and the applicable Client.
All Contributors and Clients who use the Site and Services are bound by this Agreement and you understand that this Agreement applies to you if you create an account on the Site as a Contributor and/or a Client.
General Agreement between POCSTOCK and You
- POCSTOCK may make changes to this Agreement from time to time without specifically notifying you. POCSTOCK will post the latest Agreement on the Site, but it is up to you to review it before using the Site or Services. If you continue to use the Site or Services after any of these changes, your continued use will mean that you have accepted any changes to the Agreement. If POCSTOCK provides updated versions of the Site and the Services and you do not accept these updated versions, you may not enjoy the most recent content, feature sets, and materials. If you do not accept updated versions of the Site and Services, POCSTOCK shall not bear any responsibility or liability for your decision.
- In addition, some services offered through the Site and the Services may be subject to additional terms and conditions specified by POCSTOCK from time to time, including but not limited to your engagement to provide of any Client Content, and your use of such services is subject to those additional terms and conditions, which are incorporated into this Agreement by this reference.
- POCSTOCK is committed to delivering a positive user experience and you understand that POCSTOCK reserves the right (but without undertaking any duty) to edit, monitor, review, delete, modify, or move any Content, User Content, or other material provided or placed on or through the Site and the Services in its sole discretion, without notice and without undertaking any duty to do so.
What Laws and Rules You Are Responsible for Following
- You must be eighteen (18) or older to use the POCSTOCK Site or Services. You understand that the Site and the Services are intended solely for users who are eighteen (18) years of age or older. Any use of or access to the Site or the Services by anyone under eighteen (18) is unauthorized.
- Users may only create one user profile on the Site and Services, and may not request that other individuals register new accounts on their behalf.
- You are responsible for all of your activity in connection with the Site and the Services. You shall abide by all applicable local, state, national and international laws and regulations and, if you represent a business, any advertising, marketing, privacy, or other self-regulatory code(s) applicable to you. You are solely responsible for ensuring that this Agreement complies with all laws, rules and regulations applicable to you. You promise not to use the Site or the Services for any purpose that is prohibited by this Agreement.
- You understand that you will be fully responsible for all activities that occur under your account, username and/or password. You agree not to allow someone who is not you to use your account, username or password at any time. You agree to immediately notify POCSTOCK of any unauthorized use of your password or your user name. POCSTOCK will not be liable for any loss that you incur as a result of someone else using your account or your password.
- You understand POCSTOCK may, in its sole discretion, refuse to offer the Site or the Services to any person or entity and change its eligibility criteria at any time and that POCSTOCK reserves the right (without undertaking any duty) to use "geo-filtering" or other technologies to block access to certain jurisdictions, in its sole discretion, without notice.
- You understand that your right to access the Site or Services will be revoked where this Agreement or use of the Site or the Services is prohibited and, if that is the case, you agree not to use or access the Site or the Services in any way.
- While POCSTOCK respects its users, you agree that POCSTOCK may terminate your account or use of the Site and/or the Services and prohibit you from accessing the Site and/or the Services, for any reason, or no reason, and with or without notice.
We do our best to keep the Site and the Services safe and operational, but we cannot guarantee it. We need your help to do that, which includes the following commitments.
- You will not use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Site.
- You will not harvest or scrape any content or materials from the Site and Services.
- You will not threaten, intimidate or harass another user or any Client or Contributor.
- You will not solicit passwords or personally identifying information (this includes, but is not limited to, someone else’s name, birthdate, home address, IP address, social security number, or credit card number) for unlawful purposes;
- You will not upload, post, transmit, share, store or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware;
- You will not upload, post, transmit, share, store or otherwise make available any content (such as a picture on a profile page) other than those of a personal nature that: (i) are of you (ii) are taken by you or your friends, or (iii) are original content created by you;
- You will not knowingly transmit false or misleading information through the Site or the Services.
- You will not use the Site and Services in any manner or transmit any Content or User Content that: infringes (or results in the infringement of) POCSTOCK’s or any third party’s intellectual property or other rights; is (or you reasonably believe to be) illegal, fraudulent, or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or you reasonably believe to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material; does not comply with all applicable laws, rules, or regulations, including obtaining all necessary permits, licenses, registrations, etc. In the case of any proposed or actual transaction, "applicable" refers to both your own location and to location(s) of all other parties to the transaction; or would cause POCSTOCK to be in violation of any law or regulation, or to infringe any right of any third party.
- You will not publish falsehoods or misrepresentations that may damage POCSTOCK or any third party.
- You will not transmit any Content or User Content and will not use the Site and Services to post, store, transmit, offer, or solicit anything that contains the following, or that you know contains links to the following or to locations that in turn contain links to the following: material that we determine to be offensive (including material promoting or glorifying hate, violence, bigotry, or any entity (past or present) principally dedicated to such causes, or items associated with such an entity); material that is racially or ethnically insensitive, material that is defamatory, harassing or threatening; pornography (including any obscene material) or material that may be harmful to a minor; any virus, worm, Trojan horse, or other harmful or disruptive component; or anything that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or regulation or is otherwise inappropriate.
- You will not otherwise take any action in violation of POCSTOCK’s guidelines and policies.
We are not responsible for third party sites and content
- You understand the Site and the Services may contain (or you may receive from POCSTOCK, third parties or users) links to other web sites ("Third Party Sites") or content posted, owned or originating from third parties such as, by way of example only, pictures, designs, photographs, graphics, text, sound, recipes, video, information, software, applications and any other content ("Third Party Content").
- You understand and agree that POCSTOCK is not responsible for, and does not control, Third Party Sites and Third Party Content. You also understand and agree that POCSTOCK is not responsible for the availability of such external sites or license_requests, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such Third Party Sites and Third Party Content.
- You acknowledge and agree that POCSTOCK shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such Third Party Site or Third Party Content.
Who Owns What and How You Can Use It
The copyright to all content the on the Site and Services is owned by the provider of that content, including but not limited to Contributors.
- All content and data related to the Site and the Services are the property of POCSTOCK or may be, to a certain extent, the property of its content suppliers, including but not limited to Contributors, and are protected under applicable copyright law, trademark law and other proprietary rights.
- You may not copy, redistribute, use or publish any part of the Site or the Services, except as allowed by this Agreement.
- You do not acquire ownership rights to any content, document or other materials viewed through the Site or the Services, except as otherwise set forth herein or the terms of an applicable written agreement between us.
You may not use trademarks appearing on the Site or Services in an infringing manner
- You agree that POCSTOCK, POCSTOCK.COM and the POCSTOCK graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of POCSTOCK or its affiliates ("Trademark Content").
- POCSTOCK trademarks and trade dress may not be used in connection with any product or service that is not POCSTOCK’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits POCSTOCK.
- All other trademarks not owned by POCSTOCK or its affiliates that may appear on this Site or the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by POCSTOCK or its affiliates.
You may use the POCSTOCK Site and Services for limited, noncommercial purposes
- POCSTOCK grants you a limited license to access and make personal use of the Site and the Services.
- POCSTOCK does not grant you the right to download (other than page caching) or modify the Site and the Services, or any portion of the Site and the Services.
- You understand POCSTOCK does not grant you the right to resell or make commercial use of the Site and the Services or their contents; make any derivative use of the Site and the Services or their contents; any downloading or copying of account information for the benefit of a third party, or merchant; or any use of data mining, robots, or similar data gathering and extraction tools.
- You understand the Site and the Services or any portion of Site and the Services may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose.
- You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information of POCSTOCK and our affiliates without express written consent.
- You may not use any meta tags or any other "hidden text" utilizing POCSTOCK’s name or trademarks without the express written consent of POCSTOCK. Any unauthorized use terminates the permission or license granted by POCSTOCK.
- You are granted a limited, revocable, and nonexclusive right to create a hyperlink, or at the Company’s sole discretion other items such as widgets, buttons, or other web page elements to the home page of POCSTOCK so long as the link does not portray POCSTOCK, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive matter.
- You may not use any POCSTOCK logo or other proprietary graphic or trademark as part of the link without express written permission.
You have the necessary rights to share content and materials should you choose to
- You understand that you may create a profile on the Services and that, accordingly, we may provide you with the opportunity, to create, submit, post, transmit or distribute content and materials to us via the Services, such as text, drawings, icons, photos, videos, etc. (collectively, "User Content"). You are solely responsible for all User Content submitted from your account. You shall remain at all times solely responsible for the full functionality, accuracy, reliability, integrity, quality or validity of any statement or any other detail contained in the User Content
- You warrant that either: (a) your User Content is wholly original to you and you exclusively own the rights to your User Content, including the right to grant all of the rights and licenses in this Agreement; or (b) all parties whose materials are included in your User Content, or who contributed in any way, are depicted in, or have any rights to your User Content, have granted you permission to submit and license your User Content to POCSTOCK as set forth herein, with full knowledge that POCSTOCK may exploit it in any manner whatsoever. You make such warranties without POCSTOCK incurring any third party obligations or liability arising out of its exercise of the rights thereto granted herein by you.
- You grant to POCSTOCK the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sub-license, display, perform, transmit, publish, broadcast, modify, make derivative works from, re-title, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content, for any purpose whatsoever, in any and all formats; on or through any and all media, software, formula or medium now known or hereafter known; and with any technology or devices now known or hereafter developed and to advertise, market and promote same.
- You also grant to POCSTOCK the right to sub-license and authorize others to exercise any of the rights granted to POCSTOCK.
- You authorize POCSTOCK to publish your User Content in a searchable format that may be accessed by users of the Site and the Internet, and you waive any rights of attribution and/or any so-called moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.
- By posting or sharing User Content with Clients, Contributors, or other users of the Service, you grant those users a non-exclusive license to access and use that User Content for their internal business purposes as permitted by this Agreement.
POCSTOCK does not condone nor authorize activities on or through the Site and Services that infringe copyright or intellectual property rights. We will delete any infringing Content or User Content if properly notified that such Content or User Content infringes on another’s intellectual property rights. If you are a copyright owner or an agent thereof and believe that any Content or User Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C §512(c)(3) for further detail):
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interest;
- A description of the copyrighted work that you claim has been infringed;
- A description of the material that you claim is infringing and where it is located on the Service;
- Identification of the URL or other specific location on the Service where the material that you claim is infringing is located;
- Your address, telephone number, and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
c/o Legal Dept
625 Broad Street, Suite 240
Newark, NJ 07102
POCSTOCK reserves the right to terminate your account or any user account that it determines to be "repeat infringers." A repeat infringer is a user who has repeatedly been notified of infringing activity and/or has had Content or User Content repeatedly removed from the Site and/or Services.
POCSTOCK’s liability is limited
- POCSTOCK is not responsible for any Third Party Sites, Third Party Content, or any other content posted on the Site and the Services, whether caused by users of the Site or Services, POCSTOCK, third parties or by any of the equipment or programming associated with or utilized in the Site and the Services.
- POCSTOCK is not responsible for the conduct, whether online or offline, of any user of the Site or the Services or any Client or Contributor.
- POCSTOCK assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of Client communications or Contributor communications.
- POCSTOCK is not responsible for any problems or technical malfunction of any telephone network or lines, cellular data provider or network, computer online systems, servers or providers, computer equipment, software, failure of email on account of technical problems or traffic congestion on the Services or Site, including injury or damage to users or to any other person’s computer and/or mobile device.
- Neither POCSTOCK nor any of its affiliates, advertisers, promoters or distribution partners shall be responsible for any loss or damage, including personal injury or death, resulting from anyone’s use of the Site or the Services, any content posted on the Site or the Services or transmitted to users, or any interactions between users of the Site or the Services and between Clients and Contributors, whether online or offline.
General Disclaimer and Limitation of Liability
WE TRY TO KEEP THE SITE AND SERVICES UP, BUG-FREE AND SAFE, BUT YOU USE THEM AT YOUR OWN RISK. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, THE SITE AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, COMPATIBILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SITE AND SERVICES OR ANY INFORMATION OR CONTENT CONTAINED THEREIN AND COMPANY FURTHER DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SITE OR SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY DATA WILL BE ACCURATE OR RELIABLE; (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) THE PLATFORM OR THE SERVERS, NETWORKS, AND OTHER SYSTEMS THAT MAKE THE SITE OR SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR FEATURES. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, AND OTHER SERVICES. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY THE COMPANY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT WILL POCSTOCK OR ITS DIRECTORS, EMPLOYEES OR AGENTS HAVE ANY LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION, CONTENT, SERVICES, OR THE SITE. WE ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US THROUGH THE SITE OR SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. POCSTOCK’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM ARISING, BUT IN NO CASE WILL OUR LIABILITY TO YOU EXCEED $1,000. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR THE SITE AND THE SERVICES, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM US, REGARDLESS OF THE CAUSE OF ACTION.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
You agree to indemnify POCSTOCK
You agree to indemnify, defend, and hold harmless POCSTOCK, its contractors, licensors, subsidiaries and affiliates and their respective partners, directors, officers, employees and agents from and against any and all claims and expenses, including any and all losses, costs, liabilities, and attorneys’ fees, arising out of or in connection with: (1) your use of the Site and Services, (2) any Content, User Content, Third Party Content, Third Party Sites and any other content, including but not limited to your provision or use of any Content, (3) your violation of any law or the rights of any third party, or (4) your breach of this Agreement and/or any breach of your representations and warranties set forth herein.
You agree that New York law applies to this Agreement
Subject to the arbitration clauses included below, if there is any dispute arising out of the Site and the Services, by using the Site and/or Services, you expressly agree that any such dispute shall be governed by the laws of the State of New York, without regard to its conflict of law provisions, and you expressly agree and consent to the exclusive jurisdiction and venue of the state and federal courts of the State of New York, in New York County, for the resolution of any such dispute.
Your general representation and warranty
You represent and warrant that you will use the Site and the Services so not to infringe or misappropriate the intellectual property rights of any third party.
- You and POCSTOCK agree that any cause of action arising out of or related to the Site or the Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
- You agree that, except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. ("JAMS") by arbitrators appointed in accordance with such rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Site or the Service. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND POCSTOCK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- You agree any arbitration shall take place in New York County in the State of New York and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees.
- If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect.
- A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
- POCSTOCK may assign its rights under this Agreement without condition.
- This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.