Terms & Conditions

© 2023 Pogoseat, Inc. All rights reserved.

Welcome to Pogoseat. Your portal to the best available seat in the house! This document sets forth the Terms and Conditions offered through Pogoseat.com (“Services”) provided by Pogoseat, Inc to you (“Customer”). By using or visiting the Site, you expressly agree to be bound by these Terms and Conditions and to follow these Terms and Conditions and all applicable laws and regulations governing the Site. Please read them carefully. This Agreement provides that all disputes between us and you will be resolved either by binding arbitration by a neutral arbitrator, or if available, in small claims court, in all cases without any right to trial by jury or as part of a class action proceeding. Please review the Arbitration Agreement below for further details regarding your agreement to arbitrate any dispute with us.

The Services is a software-as-a-service (SAAS) application that enables real-time engagement through mobile devices including, but not limited to, web, mobile, SMS and social channels. Subject to your compliance with this Agreement including but not limited to your payment of fees, Pogoseat grants you a limited, non-exclusive, non-transferable, non sub licensable, revocable license for you and your authorized users to use the Service solely for your internal business purposes, as set out in the purchase form and pursuant to the terms of this Agreement.

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Acceptable Uses

You may use this Website for the Services of upgrading your seats while at a qualifying event and participating in our various forums and blogs only. Pogoseat is also in the business of providing an interactive ticket buying Services through the use of SMS text messaging. Standard text messaging rates apply. The Services provide an opportunity to purchase event tickets, products and/or merchandise, services ("Offers") from third-party merchants, venues or businesses ("Providers"). You may not harm the Website in any way or otherwise use the Website in any improper manner, including, but not limited to hacking into the Website’s systems, spoofing or faking email headers or slowing or stopping the functionality of the Website. This Website is not directed to children under the age of 13. If you are under the age of 13, you may use the Website only with involvement of a parent or legal guardian (over the age of 13). Pogoseat reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion. Pogoseat can revoke or prohibit your subscription membership for any reason at any time, without notice upon any violation of any of these Terms and Conditions or the Privacy Policy.

Privacy

You acknowledge that you have read the PrivacyPolicy located on the Website at https://www.pogoseat.com/legal/privacy-policy, as it may be updated from time to time (the “Privacy Policy”), and hereby consent to the collection, use, disclosure and retention by us of your personal information (whether previously collected or to be collected) for the purposes outlined in the Privacy Policy. You also agree to the terms set out in the Privacy Policy. You also consent to our use of such personal information in accordance with applicable terms and conditions contained in the PrivacyPolicy, which is incorporated herein by reference and forms an integral part of these Terms and Conditions.

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Purchase Policy

By visiting our Site and purchasing or redeeming an upgrade, you agree to our Terms of Purchase which are incorporated herein by this reference. Upgrades include, but are not limited to, seat upgrades, last-minute tickets, experiences, merchandise and passes.

Purchases

Pogoseat provides a service that allows a sports fan, concert attendee or the like to upgrade their seats, purchase experiences, purchase a tickets via SMS and sell subscription services. As such, you will be charged a sales fee (a "Transaction"). Price and availability of any tickets are subject to change without notice until such time as a Transaction is completed.

All Purchases of tickets through the Pogoseat Services are final, unless the Event is canceled or the Event provider authorizes a refund through the Pogoseat Services in its sole discretion. You acknowledge that the decision to authorize a refund to you is at the applicable Event provider’s (and not our) sole discretion, and we are not liable for any decision to authorize or not authorize a refund. If the Event provider authorizes refunds to a ticket buyer, we will refund the ticket face value to ticket buyers who request refunds; provided, however, that we are entitled to keep the processing fees, if any, charged by us to ticket buyers for such ticket sale. Notwithstanding the foregoing, you agree and acknowledge that our obligation to make any refunds is subject and limited to the Event provider’s authorization to issue such refund, as well as our holding or receiving from Event providers of the applicable ticket sale proceeds. If the Event provider does not authorize such refund or we do not have or receive from the Event providers the applicable ticket sale proceeds, then we cannot provide you a refund for such ticket sale.

Pogoseat also provides a service that allows users the ability to purchase a ticket through the use of SMS text messaging. Pogoseat markets "Offers" on behalf of Providers. Pogoseat is not responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by a customer, caused in whole or in part by the Underlying Offer or for any unclaimed property liability arising from unredeemed or partially redeemed Promotional Voucher. By responding to a Offer, you agree to purchase the Offer based on the terms and conditions associated with the Offer and the terms and conditions stated herein. If the terms of an Offer are inconsistent with these Terms, the Offer's specific terms supersede any inconsistent terms in these Terms, except to the extent such terms are prohibited by applicable law.

Tickets purchased through the Services are non-transferable, unless otherwise expressly specified by us. Unlawful resale (or attempted resale), counterfeit or copy of tickets purchased through the Services is grounds for seizure and cancellation without compensation. In addition, we reserve the right to restrict or deny ticket purchasing privileges to anyone that we determine, in our sole discretion, to be, or has been, in violation of these Terms of Use. Tickets may not be used for advertising, promotions, contests or sweepstakes, unless formal written authorization is given by us.

As a Registered User you agree to receive email communications and text messaging from an automated telephone dialling system for all of your transactions and communication with Pogoseat. In order to respond to an Offer or to purchase any Product, you must be a Registered User. You agree that all purchase confirmations, postings, notices, disclosures, or other communications that Pogoseat provide to you electronically or through a text message satisfy any legal requirements that such communications be in writing.

You will be asked to supply certain information applicable to your Transaction, including, without limitation, information about your current seat location, credit card number (or other payment information), first and last name, email address, mobile phone number and other personal information. You understand that any such information will be treated by Pogoseat in the manner described in our Privacy Policy. You grant Pogoseat the right to provide any such information to third parties for purposes of facilitating the completion of a Transaction initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction. You agree that all information that you provide in connection with your Transaction will be accurate, current and complete. ‍Payment card added must be in the account holders name. Any users found using methods registered in other peoples’ names - including family members, spouses or partners - may find their account is suspended. We are entitled to assume that you are using your own method of payment and we accept no liability to any third party whose method of payment you may have used.

We use a third-party payment processor (the “Payment Processor”) to allow you to pay for Purchases. The processing of payments will be subject to any applicable terms, conditions and privacy policies of the Payment Processor in addition to these Terms & Conditions. We are not responsible for error by the Payment Processor. By choosing to make a Purchase, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for such Purchase in accordance with your Payment Method and you authorize us, through the Payment Processor, to charge your Payment Method.

You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred. You will also be responsible for paying any applicable taxes (state and local sales tax), shipping fees relating to your purchases. You acknowledge that complying with laws is your responsibility, and YOU AGREE NOT TO HOLD US LIABLE FOR YOUR FAILURE TO COMPLY WITH ANY LAW OR OUR FAILURE TO NOTIFY YOU OF, OR PROPERLY APPLY, ANY LAW. WE WILL COMPLY WITH LAW ENFORCEMENT AND MAY PROVIDE THEM WITH ALL INFORMATION YOU SUBMIT TO US TO ASSIST IN ANY INVESTIGATION OR PROSECUTION THEY MAY CONDUCT.

MESSAGING COMMUNICATIONS: Short-Code Terms of Service (SMS)

The Pogoseat Short Code 48429 provides ticket alerts, offers, conversation and/or informational messages to subscribers.

1. When you opt-in to the service, you are choosing to receive messages (recurring, informational, conversational, promotional text and/or voice messages and/or email communication) from us based on preferences that you indicate. Typically these are ticket offer notifications and informational messages via an automated telephone dialling system.
2. By providing your mobile number and opting in to receive these communications, you are consenting to receive recurring promotional text and/or voice messages from an automated dialling system;  Consent is not a condition of purchase. The frequency and number of messages you will receive will vary.
3. Messages are recurring. Message and data rates may apply.
4. When you opt-in to the service as noted above, we will send you an SMS message to confirm your opt-in. In some cases, you must validate your phone number to continue to complete your registration. ‍
5. You can cancel the SMS service at any time. Just reply “STOP” in the text message you receive. After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just reply “START” and we will start sending SMS messages to you again.
6. If at any time you forget what keywords are supported, just text “HELP” to the text message you received. After you send the SMS message “HELP” to us, we will respond with instructions on how to use our service as well as how to unsubscribe.
7. Carriers are not liable for delayed on undelivered messages.
8. Message and Data Rates will apply for any messages sent to you from us and to us from you. The frequency of messages depends on the users interaction. For any questions about your text plan or data plan, it is best to contact your wireless provider.

If you have any questions regarding privacy, please read our privacy policy. For all questions about the services provided by this short code you can email us a support@pogoseat.com

ADDITIONAL MESSAGING COMMUNICATIONS PROVISIONS
(For Residents of Canada)

In addition to the consent provided above in the Messaging Communications (United States) section, Canadian residents agree to the following provisions related to compliance with Canada’s Anti-Spam Legislation (“CASL”), Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) and Canadian provincial law including Alberta’ Personal Information Protection Act (“PIPA”), and Quebec’s Act Respecting the Protect of Personal Information in the Private Sector:

• You agree to the provisions governing use and disclosure of personal information that are found in our Privacy Policy
• Because the purpose of our communications include your interest in future ticket purchases, our communication with you will continue until you opt-out, which indicates you are no longer considering purchasing tickets to a live-event.
• Your personal information may also be transmitted to, used in, and stored in the United States
• Users in Canada acknowledge that they have read the section of the Privacy Policy entitled “Electronic Communications”.

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Pogoseat Numbers. Pogoseat will provide each of its client with a shared short code and/or a long-code number ("Pogoseat Numbers") for use. Only Pogoseat and their Authorized Users (its clients), will be able to send customer messages. Customer acknowledges and agrees that it may not have any access to messages received on Pogoseat Numbers unless and until the senders are fully registered. Customer is solely responsible and liable for: (a) publication, distribution, marketing and promotion of its Pogoseat Number(s), including without limitation advising in any communication that the Pogoseat Number(s) is issued by Pogoseat and messages sent to the Pogoseat Number are managed by Pogoseat; (b) composing and sending all customer messages, and all content therein (e.g., without limitation, photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection the Service); (c) deciding (i) when (i.e., within hours permitted by Applicable Laws), and (ii) to whom (e.g., without limitation, in compliance with the Federal Trade Commission (“FTC”) National Do Not Call Registry), Customer Messages are sent; and (d) ensuring all Customer Messages and the content therein do not (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) promote illegal activities, including, without limitation, in a manner that might be illegal or harmful to any person or entity; (d) distribute, share, or facilitate the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; (iv) contain any Restricted Data; or (v) violate or cause Pogosesat to violate any Applicable Laws. Without limiting the generality of the foregoing, Customer shall ensure that (if and to the extent required) all Customer Messages comply with applicable federal, provincial/state and municipal rules regarding political or election-related communications and FTC Endorsement Guidelines.

Restrictions. With respect to the Service, Customer will not (and will not permit others to): (a) disassemble, decompile, reverse-engineer (except as expressly authorized by law), copy, translate or make derivative works; (b) sell, resell, license (or sub-license), lease, assign, transfer, pledge, or share any of your rights under this Agreement with/to any other party, or use for the Service any commercial purpose without Pogoseat's prior express written consent; (c) obscure, alter or remove any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation appearing on or contained within the Service; (d) conduct benchmarking, performance tests or other comparative analysis without prior written approval from Pogoseat in each instance; or (d) transmit or permit to be transmitted any Restricted Data or other content or data in violation of Applicable Laws, that infringes any intellectual property rights, or that otherwise violates this Agreement.

Account Suspension. Pogoseat may suspend or limit the use of the Services if any Customer is deemed to prevent, investigate or otherwise address (a) any suspected misuse of the Services or violation of this Agreement, (b) any material risk to the security or performance of the Service or to Pogoseat or any other Pogoseat customer or business partner, or (c) any potential harm to any Customer or to Pogoseat's reputation or business. Pogoseat will promptly notify Customer of any suspension or limitation and will limit any suspension or limitation in time and scope as reasonably feasible under the circumstances.

Grant of Rights. Customer grants Pogoseat the non-exclusive right to reproduce, distribute, display, publish, and otherwise use Customer Messages and messages sent to Customer’s Pogoseat Numbers for the purpose of operating, providing and improving the Service. Customer acknowledges that: (i) Pogoseat Clients may share Customer Messages publicly and Pogoseat has no expectation of privacy with respect to Customer Messages; and (ii) Pogoseat may collect, analyze and use Customer Messages and messages sent to Customer’s Pogoseat Numbers, including related information, on an aggregated, de-identified or anonymized basis together with the messages and information of others, including to improve, enhance, further develop and test the Service and Pogoseat's technology, to create and refine algorithms and other machine learning methods and processes, to identify and predict patterns and trends, and to train and refine machine learning or analytical models or engines. Subject to further written agreement between the parties, Pogoseat may monetize Customer Messages, e.g. via third-party sales or other commercial integrations. Customer further grants to Pogoseat a non-exclusive license to host, copy, process, transmit and disclose all Customer Data as necessary to perform its obligations and exercise its rights hereunder.

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Rewards

You may become eligible to earn certain experience or reward benefits directly from Event providers through the Pogoseat Services. In addition to any specific rules and descriptions for each Reward, which are incorporated herein, you acknowledge that Rewards, and the opportunity to earn Rewards, are at our and the Event provider’s sole discretion. We reserve the right, in our sole discretion at any time, to cancel, suspend, terminate or modify any aspect of the Rewards, with or without notice to you. We also reserve the right, in our sole discretion, to terminate your eligibility to earn Rewards at any time, with or without cause, with or without notice, effective immediately, including without limitation, if we deem or suspect any violation of these terms and conditions or the intended use of the Services and/or the Rewards, cheating, fraud or tampering with the operation of Rewards. By participating in the Rewards, you agree to release, indemnify and hold harmless us, our affiliates, suppliers, partners, and each of our and their respective parent companies, subsidiaries, affiliates, partners, employees, contractors, directors, officers, agents, suppliers and representatives, from any and all liabilities, claims, damages, injury, loss, harm, cost or expenses, including without limitation, property damage, personal injury and/or death, that arise from or relate to in any way the Rewards.

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Ownership

The information and materials provided on or through the Website, including any data, text, designs, graphics, images, photographs, illustrations, audio and video clips, logos, icons and links (collectively, the "Materials") are owned exclusively by Pogoseat, and are intended to educate and inform you about the events, venues and other products and services offered or described on the Website. The Website, including all Website software, databases, proprietary information and Materials (and any intellectual property and other rights relating thereto) including, without limitation, the selection, sequence and "look and feel" and arrangement of items, is owned and operated by Pogoseat and will remain the property of Pogoseat. The Website is protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable. You further acknowledge that you do not acquire any ownership rights by using the Website or the Materials.

The trademarks, logos, and service marks displayed on the Website (collectively the "Trademarks") are the registered and unregistered trademarks of Pogoseat, Pogoseat's licensors and suppliers, and others. The Trademarks owned by Pogoseat, whether registered or unregistered, may not be used in connection with any product or service that is not offered by Pogoseat, in any manner that is likely to cause confusion with customers, or in any manner that disparages Pogoseat. Nothing contained on the Website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of Pogoseat, Pogoseat's licensors or suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and Pogoseat will aggressively enforce its intellectual property rights in such Trademarks.

Social Media

This Agreement applies also to users of social media websites managed by Pogoseat and hosted by third-party providers (e.g., Facebook.com, Instagram.com, Twitter.com, LinkedIn.com, etc.). Pogoseat reserves the right to remove comments or content on its social media websites and may block further posting on its social media websites by any individual who violates this Agreement. Pogoseat disclaims all liability in any way connected to the use of or access to its social media websites.

Remedies

You agree that our remedy at law for any actual or threatened breach of this Agreement would be inadequate and that we shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that we may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including, without limitation, attorneys' fees.

No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys' fees and expenses.

No instance of waiver by us of our rights or remedies under these terms and conditions shall imply any obligation to grant any similar, future or other waiver.

Copyright Policy

The content and software on this Site is the property of Pogoseat and/or its suppliers and is protected by U.S. and international copyright laws. We will terminate the privileges of any user who uses this Site to unlawfully transmit copyrighted material without a license express consent, valid defence or fair use exemption to do so. In particular, users who submit Content to this Site, whether articles, images, stories, software or other copyrightable material must ensure that the Content they upload does not infringe the copyrights or other rights of third parties (such as privacy or public rights). After proper notification by the copyright holder or its agent to us, and confirmation through court order or admission by the user that they have used this Site as an instrument of unlawful infringement, we will terminate the infringing users' rights to use and/or access this Site. We may, also in our sole discretion, decide to terminate a user's rights to use or access the Site prior to that time if we believe that the alleged infringement has occurred.

Disclaimers

THE WEBSITE, THE MATERIALS ON THE WEBSITE, AND ANY PRODUCT OR SERVICE OBTAINED THROUGH THE WEBSITE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, POGOSEAT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE, THE MATERIALS, AND ANY PRODUCT OR SERVICE OBTAINED THROUGH THE WEBSITE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Applicable law may not allow the exclusion of implied warranties, so the above exclusions may not apply to you.

POGOSEAT DOES NOT WARRANT THAT YOUR USE OF THE WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE, THE SERVER(S) ON WHICH THE WEBSITE IS HOSTED IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE WEBSITE, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE WEBSITE AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF POGOSEAT, WHETHER MADE ON THE WEBSITE OR OTHERWISE, SHALL CREATE ANY WARRANTY. POGOSEAT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND POGOSEAT WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR 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. YOUR USE OF THE WEBSITE AND ANY MATERIALS PROVIDED THROUGH THE WEBSITE ARE ENTIRELY AT YOUR OWN RISK.

Limitation Of Liability

NEITHER POGOSEAT NOR ANY OF OUR AFFILIATES, SHAREHOLDERS, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE OR WILL BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE WEBSITE AND/OR MATERIALS CONTAINED ON THE WEBSITE, ANY LINKED WEBSITE OR ANY PRODUCT OR SERVICE PURCHASED THROUGH THE WEBSITE. WITHOUT LIMITING THE FOREGOING, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT POGOSEAT SHALL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR (I) ANY FAILURE OF ANOTHER USER TO THE WEBSITE TO CONFORM TO THE REQUIREMENTS OF THIS AGREEMENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, WHETHER ARISING IN CONTRACT OR IN TORT, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, INCLUDING ANY CLAIM, CAUSE OF ACTION, OBLIGATION, LIABILITY, RIGHT, OR REMEDY WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF POGOSEAT, (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 OUR WEBSITE, (IV) ANY BUGS, VIRUSES, WORMS, TROJAN HORSES, DEFECTS, DATE BOMBS, TIME BOMBS OR OTHER ITEMS OF A DESTRUCTIVE NATURE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, (V) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY MATERIALS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY MATERIALS POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA WEBSITE, AND/OR (VI) ANY LOST, STOLEN OR DAMAGED TICKETS, OR THE FAILURE OF A VENUE TO HONOR A SEAT UPGRADE. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE WEBSITE OR MATERIALS OR ANY LINKED WEBSITE IS TO STOP USING THE WEBSITE, MATERIALS, OR LINKED WEBSITE, AS APPLICABLE. THE MAXIMUM LIABILITY OF POGOSEAT, AND YOUR SOLE AND EXCLUSIVE REMEDY, FOR ALL DAMAGES, LOSSES SUFFERED BY YOU AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO POGOSEAT DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE YOUR CLAIM FIRST AROSE. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

You acknowledge that you may have or may in the future have claims against Pogoseat which you do not know or suspect to exist in your favor when you agreed to this Agreement and which if known, might materially affect your consent to this Agreement. You expressly waive all rights you may have under Section 1542 of the California Civil Code or any similar provision under any other applicable law, which states:

A GENERAL RELEASE DOES NOT EXTEND THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Indemnification

You agree to indemnify, defend and hold Pogoseat, its affiliates, licensors, suppliers, advertisers and sponsors, and their respective directors, officers, employees, consultants, agents and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees) and other expenses that arise directly or indirectly out of or from (a) your breach of this Agreement, (b) any allegation that any User Content or other materials you submit to us or transmit to the Site infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (c) your activities in connection with the Site.

Jurisdiction and Governing Law

By visiting the Site, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to principles of conflict of laws, will govern the Terms of Use, Privacy Policy and any dispute of any sort that might arise between you and us related in any way to your use of the Site. Except as provided in the Arbitration Agreement section below, by using the Website you agree to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California for the resolution of all disputes between us, and waive any objection based on such forums being inconvenient.

Arbitration Agreement

Any dispute or claim relating in any way to products sold or Services provided through the Website, or any Provider arising out of, relating to, or connected in any way with these Terms, or relating in any way to your use of the Website (including without limitation claims relating to the breach of the Terms of Conditions, Privacy Policy or the unauthorized disclosure of personally identifiable information) will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. Unless you proceed with a small claims action, the Federal Arbitration Act and federal arbitration law will apply. This Arbitration Agreement is intended to be broadly interpreted, and includes, without limitation:

• claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, including, without limitation, claims relating to your use of Pogoseat's website www.Pogoseat.com, any statements or advertising on the Website, your purchase of a seat upgrade through the Websites, and/or any fees or other amounts you paid to Pogoseat in connection with the purchase of a seat upgrade through the Website;
• claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising); and
• claims that may arise after the termination of this Agreement.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms of Conditions as a court would.

If for any reason a claim proceeds in court rather than in arbitration WE EACH HEREBY WAIVE ANY RIGHT TO A JURY TRIAL. We also both agree that either of us may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Further, unless we both agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative, consolidated or class proceeding. If the requirements of this paragraph are found to be unenforceable, then the entirety of this arbitration provision shall be null and void except for the waiver of any right to a jury trial described in the previous paragraph.

If a dispute arises between us, we strongly encourage you to first contact us directly to seek a resolution by contacting our Customer Support [support@pogoseat.com] before resorting to arbitration or asserting a claim in small claims court. We value our relationship with our customers and will try to resolve your claims informally and expeditiously. To that end, before either of us may begin an arbitration proceeding, written notice must be sent to the other describing the claim. If to us, the notice should be sent to our registered agent [Pogoseat, Inc., c/o PremierCounsel LLP, 201 Spear Street, Suite 1100, San Francisco, CA 94105], and if to you, at the current address you provided in your customer account. If the claim has not been resolved within 30 days of sending the notice, either party may then commence an arbitration proceeding. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules and forms are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totalling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not to seek attorneys' fees and costs in arbitration unless the arbitrator determines your claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county or parish where you live or at another mutually agreed location.

The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of our last written settlement offer made before an arbitrator was selected (or if we did not make a settlement offer before an arbitrator was selected), then we will pay you the amount of the award or US$1,000, whichever is greater.

Severability

If any these provisions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed several and shall not affect the validity and enforceability of any remaining provision.

Changes in Terms and Conditions

Pogoseat has the right to change or discontinue any aspect or feature of the Site, including, but not limited to, content, hours of availability, and equipment needed for access or use, at any time. We have the right to change or modify the Terms and Conditions applicable to User’s use of the Site or to impose new conditions, including, but not limited to, adding fees and charges for use, at any time. Such changes, modifications, additions or deletions shall be effective upon notice thereof, which may be given by means including, but not limited to, posting on the Site, or by electronic or conventional mail, or by any other means by which User obtains notice thereof. Any use of the Site by User subsequent to such notice shall be deemed to constitute acceptance by User of such changes, modifications or additions.