Pogo Platform T&Cs
Last Updated: September 15, 2025
These Terms and Conditions (“Agreement”) constitute a legally binding agreement between you (“You,” “your,” or “Client”) and Pogo Technologies, Inc. (“Pogo,” “we,” “our,” or “us”) governing your use of Pogo’s Services. This Agreement applies to you unless you have already executed a separate service agreement directly with Pogo which governs your use of the Services.
By executing an Order that references this Agreement or by creating an account, clicking a box indicating your acceptance of these terms, or using our Platform, you acknowledge and agree to be bound by the terms of this Agreement, in the absence of a superseding agreement. When using the Services on behalf of an organization, you agree to these terms on behalf of that organization and you represent that you have the authority to do so. In such cases, “you” and “your” will refer to that organization.
Each of Client and Pogo may be referred to herein as a “Party,” or collectively as “Parties.”
Please read this Agreement carefully as it constitutes a binding agreement between you and Pogo. If you do not agree to the terms herein, you may not use the Services.
Pogo reserves the right to update or modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement through Pogo’s website. You should regularly review these terms, as your continued use of the Services after any such changes constitutes your agreement to such changes. If Pogo makes any material changes to these terms, we will notify you of these material changes either through the Platform or via email at the address you have provided us. Your continued use of the Platform, and lack of objection ten (10) days after such changes take place indicates your acceptance of the changes.
1. Definitions. For purposes of this Agreement, the following definitions apply:
“3P Ad Platform” means a publisher or advertising technology company that is engaged in programmatic or direct digital advertising transactions, such as a publisher (e.g., social media network), ad server, or demand-side platform.
“Audience” means a grouping of Device IDs where such Device IDs represent corresponding users that appear to share characteristics.
“Affiliate” means, with respect to a Party, any person or entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with said Party.
"Aggregate Data” has the meaning set forth in Section 9.
“AI” means the Platform’s generative artificial intelligence features and components.
“AI Output” means the output of AI.
“Authorized Users” means the individual employees, independent contractors, third-party agents, and representatives identified by Client, to which Pogo is Instructed to grant Platform access credentials and any users who register directly online on behalf of an entity or themselves.
“Client Assets” means all materials supplied or specified by, or provided to Pogo or Users, or uploaded to the Service by Client in connection with this Agreement including but not limited to: survey questions, interview materials, photographs, concepts, products, advertising, data, promotional and other materials, including but not limited to, any trademarks, service marks, trade names, or logos contained therein, collectively.
“Customized Audience” means a Pogo Audience created specifically for Client pursuant to this Agreement.
“Device IDs” means a unique identifier that is linked to a particular user (either directly or indirectly, such as via the user’s device) and includes, but is not limited to, mobile device advertising ID (e.g., IDFA or AAID), email address, phone number, or IP addresses.
“Fees” means the fees set forth in each Order.
“Input” means any Client Assets and/or Work Product used as input to the AI.
“Instruct” or “Instruction” means a direction, either in writing (e.g., the Agreement), in textual form (e.g., by e-mail), or by using a software or online tool (e.g., the Platform), issued by Client to Pogo.
“License Term” means the duration of the license term set forth in an Order.
“Look-A-Like Targeting” means Client's targeting of an Audience with ads where the users represented within such Audience (by way of such Device IDs) shares characteristics with the users represented within the Pogo Audience that served as a seed set to generate such “look-a-like” Audience.
“Off-The-Shelf Audiences” means Pogo Audiences that are not Customized Audiences.
“Order(s)” means a duly executed transactional document, including but not limited to, “Statement of Work(s),” “License(s),” “Purchase Order,” “Order(s),” or “Order Form(s),” Each Order references this Agreement and is considered an integral part thereof.
“Platform” means Pogo’s proprietary software as a service platform and technology, including materials, templates and works contained therein and any modifications, updates, or upgrades of the same.
“Pogo Audiences” means Audiences created by Pogo, or otherwise licensed by Pogo from third parties, that Pogo makes available for use by Client pursuant to this Agreement.
“Professional Services” means the professional market research and analytical services provided by Pogo as set forth in an applicable Order.
“Retargeting” means Client's targeting of ads.
“Services” means Pogo’s provision of the Platform, the Pogo Audiences and Professional Services as set forth in an Order.
“Study(ies)” means any means of conducting market research on the Platform or in connection with this Agreement, including but not limited to: surveys, forms, interviews, applications, questionnaires, and other similar actions.
“Pogo IP” means Pogo Audiences, the Platform, User Data and Pogo Marks, collectively.
“Pogo Marks” means any Pogo trademarks, service marks, logos and trade names.
“Targeting Purposes” means the “Targeting Purposes” set forth in the Order Form on a per-Audience basis.
“Term” means the term of this Agreement.
“User(s)” means the third-party individual users of the public who participate as respondents in surveys conducted in connection with this Agreement.
“User Data” means any and all demographic, statistical, profile, financial, or otherwise informative data provided by Pogo pertaining to Users used in connection with this Agreement, regardless of the format of or time at which it is provided to or collected by Pogo.
“Work Product” means the User’s responses to Studies published by Client, and any custom reports, research, or output data developed by Pogo for Client pursuant to an Order (excluding the Pogo IP, and any third-party materials or materials in the public domain).
2. Free Trials.
If You have access to the Services on a free trial basis, We will make the Services available to You on a trial basis, free of charge, until the earlier of (a) the end of the free trial period, or (b) the start date of any purchased Service subscriptions ordered by You for such Service(s). Notwithstanding the above, Pogo reserves the right to terminate a Free Trial at any time unless otherwise set forth expressly in an Order Form executed between the parties.
CLIENT ASSETS IN OUR SYSTEMS OR IN OUR POSSESSION OR CONTROL DURING YOUR FREE TRIAL MAY BE PERMANENTLY LOST OR DELETED AT THE END OF THE FREE TRIAL PERIOD UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SERVICES BEFORE THE END OF THE TRIAL PERIOD. WE WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A FREE TRIAL.
3. Services.
Subject to the terms of this Agreement, Pogo will provide Client with the Services and deliver the Work Product as set forth in an Order. Any requests for Services not set forth in the Order may be provided at an additional cost to Client, which must be set forth in an amendment to the Order or an additional Order.
The Platform. Pogo may introduce material changes to the Platform, provided that (i) any such material changes do not adversely affect the quality, price or function of the Platform and (ii) Pogo keeps Client informed of any such changes. Pogo will use commercially reasonable efforts to meet the deadlines set forth in each Order; provided, the parties understand and agree that Pogo will not be held liable for any delays that are the result of Client’s failure to meet Client’s deadlines set forth in an Order. Pogo acknowledges and agrees that any Affiliate of Client may enter into a separate Order under the terms of this Agreement, and each Order will represent a separate and individual contract between Pogo and the entity executing the Order.
Pogo Audiences.
Ad Clients. Where Client is acting on behalf of an Ad Client, Client may perform under this Agreement and exercise its rights under this Agreement only on behalf of an Ad Client (e.g., Client cannot serve ads on behalf of Client itself or for any other advertising client of Client). Ad Client is not a third-party beneficiary under this Agreement.
3P Ad Platforms. Client and Pogo will mutually agree upon the 3P Ad Platforms to which Pogo shall provide the Pogo Audiences for use by Client for the Targeting Purposes, without limitation on Pogo’s rights under this Agreement. Client shall have a written agreement with all 3P Ad Platforms to which Pogo provides Pogo Audiences to, and such written agreement must not contradict the terms of this Agreement. Client shall remain in compliance with such written agreements with such 3P Ad Platforms and any other policies, guidelines, terms, or rules of such 3P Ad Platforms. Client agrees that the applicable 3P Ad Platform may generate the audiences used for the Targeting Purposes via the 3P Ad Platform’s matching of that Pogo Audience with that 3P Ad Platform’s users and, further, that such matching may occur when such Pogo Audience is contained within Pogo’s account on such 3P Ad Platform; for the avoidance of doubt, Client's targeting of such matched audiences is deemed use of the Pogo Audience itself for Retargeting or use of an Audience for Look-A-Like Targeting (as applicable) under the Fees section set forth in the Order Form. Client shall cooperate with Pogo to set up any Client account permissions on a 3P Ad Platform as reasonably required by Pogo under this Agreement (e.g., where the Pogo Audience is matched initially within Pogo’s account, Pogo may require inter-account permissions on the 3P Ad Platform to provide Client with the ability to target such Pogo Audience on such 3P Ad Platform).
Client agrees that Pogo may reject any 3P Ad Platforms in Pogo’s sole discretion (in whole or in part; for example, in the latter case, Pogo can provide certain Pogo Audiences to a particular 3P Ad Platform but not other Pogo Audiences to that same 3P Ad Platform, such as based on 3P Ad Platform rules). Pogo may, without limitation on any of the foregoing, require that Pogo enters into a written agreement with a 3P Ad Platform (where such agreement is satisfiable to Pogo) before Pogo agrees to provide the Pogo Audiences to such 3P Ad Platform. Without further penalty to Pogo, Pogo may remove any Pogo Audiences from any 3P Ad Platform (a) on reasonable grounds related to (i) the 3P Ad Platform’s compliance with laws, privacy standards, or other reasonable concerns (e.g., material changes to the 3P Ad Platform’s contractual terms) or (ii) Client's compliance with this Agreement or (b) in light of any governmental acts (e.g., demand, order, civil investigative demands, subpoenas, law enforcement requests) or any changes in law or facts known to Pogo, in each case, to the extent applicable to this Agreement. Pogo will endeavor to provide Client with prior notice of such reasonable grounds before Pogo removes such Pogo Audiences except that, for the avoidance of doubt, Pogo is not required to reveal any attorney-client privileged information within such notice to Client. Pogo is not responsible or liable for any of 3P Ad Platforms’ audience size, conversion, impression, lead, or other estimations or predictions, impressions served, match rates, campaign performance, pricing or other rates (and any increase or decreases in such pricing or rates), brand safety, ad fraud, bot traffic, contractual terms with Client or Ad Client, measurement, reports, security, or other features, functionality, or acts or omissions.
Restrictions on Use. Client shall not, and shall ensure that any third party shall not, (i) access or attempt to access any Pogo Audiences such that Client or such third party might be able to view the Device IDs that comprise such Pogo Audiences or otherwise identify individuals (except that a 3P Ad Platform may view such Device IDs or otherwise identify such individuals for the Targeting Purposes); (ii) use, disclose, or otherwise process any Pogo Audiences in any sharing arrangement, or resell, rent, lease, sublicense, or transfer the Pogo Audiences to any third party (except that Pogo’s agreement with Client regarding Pogo’s disclosure of Pogo Audiences to a 3P Ad Platform pursuant to the first sentence of Section 3.b.2 is not deemed a violation of this subsection (ii) by Client); (iii) merge a Pogo Audience with, or use any Pogo Audience in conjunction with, data about other individuals held by Client or another third party (e.g., other segments or Device IDs which are combined or linked with such Pogo Audience or used in conjunction with such Pogo Audience within a campaign), except that a 3P Ad Platform may undertake matching of the 3P Ad Platform’s Device IDs with the Device IDs within the applicable Pogo Audience for the process of generating the targetable audience for the Targeting Purposes; (iv) use the Pogo Audiences in any manner that would deem the Pogo Audience to be “sensitive data” (or similar term, such as “consumer health data” or “sensitive personal information”) under applicable law; (v) otherwise use the Pogo Audiences in any manner other than as expressly permitted under this Agreement. Client's Ad Client’s acts and omissions with respect to Pogo Audiences will be deemed Client's acts and omissions under this Agreement, as if Client itself committed such acts or omissions.
Client may use Pogo Audiences under this Agreement to promote Client's or, as applicable and to the extent so authorized by Ad Client, Ad Client’s games or other products or services (collectively, “Client Services”) except that Client shall not promote Client Services that display or promote any of the following: (i) obscene material; (ii) pornography, adult entertainment, fetishes, or sexual services; (iii) reproductive health; (iv) firearms, ammunitions, or graphic or explicit violence (e.g., whether fictional or real: injury to humans or animals, acts of torture or terrorism, suicide); (v) automotive warranties; (vi) credit repair agencies; (vii) lotteries; (viii) illegal drugs, drug paraphernalia, or substance abuse; (ix) alcohol; (x) gambling (except where Client promotes such gambling Client Service in a manner that complies with laws and any self-regulatory requirements and best practices); (xi) hate speech, harassment, intimidation, bullying, excessive profanity, threats, discrimination, or religious extremism; (xii) black-hat hacking, cracking, warez, file sharing, counterfeit goods, or content that otherwise violates intellectual property rights; (xiii) anything otherwise illegal or non-compliant with the law; or (xiv) anything that violates any policies, guidelines, terms, or rules of the applicable 3P Ad Platform.
4. Fees/Payment.
a) Client agrees to pay Pogo the Fees specified in each Order. Except as set forth herein, all Fees are (i) non-refundable, (ii) calculated based on the Services acquired for the entirety of the License Term, (iii) payable in their entirety unless Pogo materially breaches this Agreement, and (iv) exclusive of applicable sales tax, to the extent that such tax applies. Client agrees to reimburse Pogo for any costs and expenses identified on the Order that are reasonably incurred in providing the Services set forth in this Agreement or otherwise approved by Client in advance in writing.
b) Unless otherwise set forth in an Order, invoices shall be paid within thirty (30) days of Client’s receipt of an undisputed invoice. Any additional invoices submitted by Pogo to Client for renewed License Terms pursuant to this Agreement shall be payable in accordance with the Order. In the event that any invoices are not paid when due, Pogo reserves its rights to suspend or revoke Client’s access to the Platform, and to halt the provision of the Professional Services, without liability and without limiting Pogo’s other rights hereunder, until overdue amounts are paid in full. Client agrees to reimburse Pogo for all costs (including reasonable attorneys’ fees) incurred in collecting late payments.
5. Pogo IP.
Subject to Client’s compliance with the terms and restrictions set forth herein and any other policies we may provide in writing, Pogo grants Client a royalty-free, non-transferable, non-exclusive, revocable license:
a) to access and use the Platform during the applicable License Term solely for purposes of this Agreement;
b) to use the Pogo Marks solely for the purposes of attribution of the Services and Work Product, which shall be revocable at any time upon Pogo’s delivery of written notice; and
c) to use the User Data in perpetuity for its internal business purposes (including research and development), and for the advertising, promoting and publicizing Client and its products and services.
Client acknowledges and agrees that as between Pogo and Client, Pogo retains all right, title, and interest in and to the Pogo IP. Nothing contained herein shall constitute an assignment of such rights or grant Client any title or ownership therein. Client agrees that it will not contest Pogo’s ownership of such rights, challenge the validity of such rights, or take any action in derogation of such rights. Client shall not register the Pogo IP in any forum or in any jurisdiction and Pogo shall retain the exclusive right to apply for and obtain registrations for the Pogo IP throughout the world.
Except as expressly permitted herein, Client shall not, and shall not permit its personnel to, directly or indirectly (i) use the Pogo IP or any Confidential Information of Pogo to create or enable a third party to create any software, product or service competitive to the Services; (ii) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying ideas, algorithms or organization of the Platform; (iii) copy, alter, modify, or create derivative works of the Pogo IP or any Confidential Information of Pogo, provided that Client may copy User Data in connection with its use under the license granted above and may modify such User Data, but only to the extent reasonably required to accommodate the channel in which it is used, as long as such modification does not distort such User Data; or (iv) otherwise use the Pogo IP or any Confidential Information in any way that violates this Agreement.
In connection with the license grant in Section 5(a) above, Pogo shall issue an unlimited number of access credentials to Client’s Authorized Users, at the Instruction of Client. Client acknowledges and agrees that it shall be responsible for the actions of all Authorized Users, and by such Instruction, consents to Pogo’s sharing of Client’s Confidential Information with Authorized Users.
6. Work Product.
To the extent Pogo agrees to develop any Work Product for Client as set forth in the Order, Pogo hereby agrees that all such Work Product shall be deemed “works made for hire” for the benefit of Client, and without limiting the foregoing, except with respect to third-party materials within the Work Product (to the extent any are identified in the Order or at the time the Work Product is delivered to Client), hereby assigns to Client all right, title, and interest in and to such Work Product; provided that Client shall not resell such Work Product and shall provide attribution to Pogo when it re-uses such Work Product. Pogo agrees to cooperate with Client at Client’s expense to perfect the ownership of any such Work Product and hereby waives all moral or other rights in and to such Work Product once assigned to Client. Pogo hereby assigns to Client all right, title, and interest, if any, in and to AI Output. As between Client and Pogo, and to the extent permitted by applicable law, Client (a) retains all ownership rights in Input, (b) owns any User responses to specific questions input by Client into the Platform and (c) owns all AI Output. Client acknowledges that due to the nature of our Services and artificial intelligence generally, AI Output may not be unique and other Platform users may receive similar content from the AI. Responses that are requested by and generated for other Platform users are not considered AI Output. Pogo’s assignment (b) and (c) above does not extend to other user output.
7. Client Licenses.
a) Client hereby grants Pogo a royalty-free, non-transferable, non-exclusive license to use the Client Assets during the applicable License Term solely for the purposes of Pogo providing the Services hereunder. Client retains all right, title, and interest in and to the Client Assets. Nothing contained herein shall constitute an assignment of such rights or grant to Pogo any right, title or interest therein. Pogo agrees that it will not contest Client’s ownership of such rights, challenge the validity of such rights, or take any action in derogation of such rights. Pogo shall not register the Client Assets in any forum or in any jurisdiction and Client shall retain the exclusive right to apply for and obtain registrations for the Client Assets throughout the world.
b) In addition to the license granted in Section 7(a) above, Client hereby grants Pogo a perpetual, irrevocable, worldwide, royalty-free, non-exclusive license to use, copy, and modify the Input solely for the purposes of providing the Services and improving the Platform and Pogo service offerings in connection with the provision of AI. Client acknowledges that Client shall be responsible for the AI Output it generates. Client is responsible for all Input and Client represents and warrants that it has all rights, licenses, and permissions required to provide Input to the AI. Client is solely responsible for all use of the AI Output and evaluating the AI Output for accuracy and appropriateness for each use case, including by utilizing human review as appropriate.
8. Data Protection.
The Data Processing Addendum accessible at https://joinpogo.ai/platform-dpa (“DPA”) sets forth each Parties' obligations with regards to the protection of Personal Data (as defined by the DPA) associated with the Processing (as defined by the DPA) and transfer of Personal Data under this Agreement, and is hereby incorporated into the terms of this Agreement by reference.
9. Aggregate Data.
Notwithstanding anything in this Agreement to the contrary, Client acknowledges and hereby agrees that Pogo shall have the right to collect and aggregate certain data relating to Client’s use of the Platform, which includes, but is not limited to, aggregating data related to Studies (“Aggregate Data”), provided such Aggregate Data does not refer to or identify Client or any individuals. Client acknowledges that Aggregate Data is Pogo’s intellectual property and that Pogo may, during and after the term of this Agreement, use Aggregate Data for any business purpose.
10. Feedback.
As between Pogo and Client, all right, title and interest in and to all feedback, analysis, suggestions, enhancement requests, comments and recommendations to Pogo regarding the Services or AI provided by Client to Pogo at any time (“Feedback”), shall be owned solely and exclusively by Pogo. Client agrees that Pogo shall have the perpetual, irrevocable and worldwide right to use, modify, license, sublicense and otherwise exploit all or part of the Feedback or any derivative thereof in any manner or media now known or hereafter devised without any remuneration, compensation, or credit to Client.
11. Representations, Warranties and Covenants.
a) Mutual. Each Party represents and warrants that: (i) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized; (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations thereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
b) Pogo. Pogo represents, warrants and covenants that: (i) the Services will be performed by qualified personnel in a workmanlike manner with the exercise of reasonable and due care in material accordance with any written specifications agreed to in the applicable Order; (ii) it owns all rights, title, and interest in and to the Pogo IP and the Work Product, or that Pogo has otherwise secured all necessary rights in the Pogo IP and Work Product to permit the access and use thereof as contemplated by this Agreement; and (iii) it shall comply with all federal, state, and local laws, rules and regulations applicable to its provision of the Services. Pogo makes no representations or warranties with respect to any Users or User Data, except that Pogo represents that its agreements with its Users permit Pogo to perform the Services, as well as grant the applicable licenses to Client for the User Data as set forth herein.
c) Client. Client represents, warrants and covenants that (i) Client shall strictly adhere to this Agreement, including the license and use of the Pogo IP, including but not limited to any rights and restrictions thereto; (ii) it shall not rent, sell, license, lease or otherwise commercially exploit or make available the Pogo IP to any unauthorized user or otherwise use, modify, adapt, or combine the Pogo IP in an infringing or unauthorized manner; (iii) Client Assets will comply with all applicable laws and regulations (including those applicable to its industry’s advertising practices) and will not infringe upon or otherwise violate the rights of any third party; (iv) it shall not include any pornographic or other inappropriate material in Client Assets; and (v) it shall comply with all applicable federal, state, and local laws, rules and regulations. For clarity, Client Assets will be deemed Client’s property and not Pogo’s property.
12. Indemnification.
a) Pogo. Pogo shall indemnify, defend and hold harmless Client from and against any losses, liabilities, damages or expenses, including reasonable attorneys’ fees and expenses, (collectively, a “Loss”) arising from any claim by a third party relating to: (i) the Platform infringing a valid U.S. patent (issued before the Effective Date), or any copyright, trademark or trade secret of such third party; (ii) any violation by Pogo or its subcontractors of any applicable federal, state, or local law, rule, or regulation in Pogo’s provision of the Services to Client; or (iii) any breach of Section 14 of this Agreement by Pogo or its subcontractors.
b) Client. Client shall indemnify, defend and hold harmless Pogo against any Loss arising from any claim by a third party relating to: (i) Pogo’s authorized use of Client Assets or its Confidential Information; (ii) any violation by Client of any applicable federal, state or local law, rule or regulation in performing its obligations under this Agreement or utilizing the Platform and User Data; (iii) any breach of Section 14 of this Agreement by Client, its subcontractors, Authorized Users or clients; and (iv) any use of the Services by Client not strictly in accordance with this Agreement or a relevant Order.
c) Procedure. The obligations of the indemnifying party hereunder are conditioned upon: (i) indemnified party’s delivery of written notice to the indemnifying party of any potential Loss promptly after the indemnified party becomes aware of such potential Loss (provided, however, that any delay or failure to promptly notify the indemnifying party of a potential Loss shall only relieve the indemnifying party of its obligations to indemnify to the extent that the indemnifying party is materially prejudiced by such delay or failure); and (ii) reasonable and timely cooperation, information, and assistance in connection therewith. The indemnifying party will have sole control over the defense of any suit or action related to such a Loss. The indemnified party may participate in (but not control) the defense thereof at its sole cost and expense. The indemnifying party may settle a suit or action related to such Loss; however, the indemnifying party may not settle if such settlement would require a materially adverse act or admission by the indemnified party without the indemnified party’s written consent, which cannot be unreasonably withheld, conditioned, or delayed. The indemnified party will not be liable for any settlement made without its prior written consent.
13. Limitations of Liability; Disclaimer of Warranties.
a) Except for any breach of Section 14 (Confidentiality) or liabilities to third parties pursuant to Section 12 (Indemnification), in no event shall either Party be liable to the other party concerning the subject matter of these terms, regardless of the form of any claim or action (whether in contract, negligence, strict liability, or otherwise), for any (i) interruption of use, loss or inaccuracy of data, loss of, or cost of procuring substitute technology, goods or services, or (ii) indirect, punitive, incidental, reliance, special, exemplary or consequential damages including, but not limited to, loss of business, revenues, profits, and goodwill.
b) Except for any breach of Section 14 (Confidentiality) or liabilities to third parties pursuant to Section 12 (Indemnification), in no event shall either Party’s aggregate liability to the other Party arising out of applicable law or related to this Agreement exceed the total of the amounts paid to it (in the case of Pogo) or paid and payable by it (in the case of Client) hereunder during the previous twelve (12) month period preceding the event giving rise to the claim, even if it has been advised of the possibility of such damages.
c) The limitations in Sections 13(a) and 13(b) are independent from all other provisions of this Agreement and shall apply notwithstanding the failure of any remedy herein provided that such limitations are not prohibited by applicable law.
d) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL POGO BE LIABLE TO CLIENT FOR CONTENT SUPPLIED BY OR ACTIONS PERFORMED BY ANY USER FOR OR WITH RESPECT TO CLIENT. CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT USERS ARE NOT EMPLOYEES OF POGO, AND THAT POGO, WHILE CREATING, TRACKING AND MANAGING THE PLATFORM, SOLELY FACILITATES THE ENGAGEMENT OF USERS FOR ACTIONS REQUESTED BY CLIENT AND DOES NOT CONTROL, MONITOR, MODERATE, SUPERVISE OR REGULATE THE ACTIVITIES OF USERS. CLIENT ACKNOWLEDGES AND AGREES THAT POGO IS IN NO WAY LIABLE FOR THE ACTS AND/OR OMISSIONS OF ANY USERS, AND HEREBY RELEASES AND HOLDS POGO HARMLESS FROM ANY AND ALL CLAIMS ARISING OUT OF ANY USER’S ACTS OR OMISSIONS, REGARDLESS OF WHETHER WILLFUL OR NEGLIGENT. MOREOVER, IT IS EXPRESSLY UNDERSTOOD THAT AI OUTPUT IS GENERATED BY ARTIFICIAL INTELLIGENCE. POGO DOES NOT VERIFY THE ACCURACY OF AI OUTPUT AND IT DOES NOT REPRESENT POGO’S VIEWS. POGO MAKES NO WARRANTY OR GUARANTEE AS TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF AI OUTPUT AND SHALL NOT BE LIABLE OR RESPONSIBLE UNDER ANY CIRCUMSTANCE FOR AI OUTPUT OR CLIENT’S USE OF AI OUTPUT, OR ANY ERRORS OR OMISSIONS CONTAINED IN AI OUTPUT.
e) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF POGO AND CLIENT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, WITH RESPECT TO ANY MATTER RELATING TO AN ORDER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IT IS EXPRESSLY UNDERSTOOD BY CLIENT THAT POGO DOES NOT WARRANT THAT THE PLATFORM, SERVICES AI OUTPUT OR WORK PRODUCT WILL MEET CLIENT’S REQUIREMENTS OR ACHIEVE ANY SPECIFIC RESULTS; THAT TRANSMISSION OF DATA OVER THE INTERNET, OR OPERATION OF THE SERVICES OR THE PLATFORM, WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE; OR THAT ALL ERRORS WHICH MAY BE CONTAINED IN THE PLATFORM, SERVICES OR WORK PRODUCT CAN OR WILL BE FIXED. MOREOVER, TO THE FULLEST EXTENT PERMITTED BY LAW, POGO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH REGARDS TO AI OUTPUT. CLIENT ACKNOWLEDGES AND AGREES THAT POGO’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT APPLY TO ANY CLAIMS, LIABILITIES, OR DAMAGES ARISING FROM OR RELATED TO AI OUTPUT.
14. Confidentiality.
“Confidential Information” means all information, including data, technology, prices, and specimens relating to the disclosing party (“Disclosing Party”) and its products, product concepts, technologies, businesses, financial, clinical or regulatory affairs, Client’s segmentation criteria, manufacturing processes or procedures or those of any third party from whom Disclosing Party receives information on a confidential basis, whether written, graphic or oral, furnished to the receiving party (“Receiving Party”) by or on behalf of Disclosing Party, either directly or indirectly, or obtained or observed by Receiving Party while performing hereunder, except information that is: (i) now in the public domain or subsequently enters the public domain without fault of Receiving Party; (ii) presently known by Receiving Party from Receiving Party’s own sources as evidenced by Receiving Party’s prior written records; (iii) received by Receiving Party from a third party not under any obligation to keep such information confidential; (iv) independently developed by Receiving Party without access or reference to Disclosing Party’s Confidential Information; or (v) released from confidential treatment by written consent of Disclosing Party.
Except as required or necessary for the performance of Services in accordance with this Agreement, Receiving Party agrees not to disclose or use for any purpose any Confidential Information without the prior written consent of Disclosing Party, to be given or withheld in Disclosing Party’s absolute discretion. Receiving Party shall take all necessary and reasonable precautions to prevent the disclosure of Confidential Information to any unauthorized third parties. Notwithstanding the foregoing, Confidential Information may be disclosed to the extent required by applicable laws or regulations or as ordered by a court or other regulatory body having competent jurisdiction, provided that Receiving Party uses its best efforts to limit the disclosure and maintain confidentiality to the extent possible and provides reasonable prior written notice of such disclosure to Disclosing Party.
Receiving Party acknowledges that the use or disclosure of Confidential Information without Disclosing Party’s express written permission may cause Disclosing Party irreparable harm and that any material breach or threatened material breach of this Agreement by Receiving Party will entitle Disclosing Party to seek injunctive relief and reasonable attorneys’ fees, in addition to any other legal remedies available to it.
Notwithstanding anything to the contrary, Client acknowledges that if Client shares or Instructs Pogo to share information with Users, Pogo shall not be liable for Users’ failure to maintain the confidentiality of such information. For the purposes of this Section 14, disclosure of Personal Data to Sub-processors will be in accordance with the DPA.
15. Term and Termination; Survival.
a) Term. This Agreement shall commence upon signature by both parties and, unless earlier terminated as provided herein, shall continue until all Orders entered pursuant to this Agreement have terminated or expired.
b) Termination. This Agreement and any Order may be earlier terminated by either Party (i) if the other Party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the other Party (10 days in the case of nonpayment by Client), or (ii) immediately upon written notice, if the other Party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other Party’s property, or the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other Party and is not dismissed within 90 days, or the other Party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
c) Effects of Termination; Survival. If an Order is terminated early by Client pursuant to Section 15(b)(i) above, Pogo will refund to Client a pro-rata amount of any pre-paid Fees for the remaining portion of the applicable License Term or the remaining unused Service credits, whichever is lesser. Upon expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the Parties shall cease, except that (i) all obligations accrued prior to the effective date of termination (including without limitation, payment obligations shall survive, (ii) the license granted in Section 5(c) of this Agreement shall survive termination unless this Agreement is terminated by Pogo pursuant to Section 15(b)(i), and (iii) the provisions of Sections 4, 7(b), 9-15, 17, and 19-26 of this Agreement shall survive termination.
16. Assignment.
This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, successors and permitted assigns. Neither Party may assign its rights under this Agreement or an Order without the prior written consent of the other Party, which may not be unreasonably withheld. Notwithstanding the foregoing, each Party may assign or otherwise transfer this Agreement to a successor in connection with the sale of all or substantially all of its business or assets to which this Agreement relates.
17. Disputes.
All claims or disputes between Client and Pogo arising from or relating to this Agreement shall be mutually resolved, if possible, through good faith mediation between the parties. In the event no resolution occurs within sixty (60) days of good faith mediation, the parties may exercise any dispute resolution mechanism available at law.
18. Force Majeure.
Except as otherwise provided herein, neither Party shall be liable or deemed in default for failure to perform any duty or obligation hereunder where such failure has been caused or occasioned by any act outside of the reasonable control of that Party and occurring without its fault or negligence, including but not limited to: an act of God, fire, strike, third-party hardware or software failure, third-party misuse of websites, communication failure, theft, denial of service attacks, unauthorized destruction of or access to Pogo records and services, cyber-attacks, cyber terrorism, inevitable accidents, or war. The Party whose performance has been so interrupted shall give the other Party notice of the interruption and cause thereof and shall use every reasonable means to resume full performance as soon as possible.
19. Publicity.
Client grants Pogo the right to use its company name and logo as a reference for marketing or promotional purposes on its websites and in other public or private communications with existing or potential customers, subject to Client’s standard trademark usage guidelines as provided by Client to Pogo from time-to-time.
20. Notice and Delivery.
Under this Agreement, if a Party is required or permitted to deliver or submit written notice to the other, such delivery shall be made on business days by email with electronic confirmation to the sender, certified mail, or by courier (e.g., Federal Express or UPS) and addressed to the receiving Party as provided below, and if no such address is provided, as provided in the Order. Notice shall be deemed given upon receipt.
If to Pogo:
Pogo Technologies, Inc.
228 Park Avenue South, PMB 77949
New York, NY 10003-1502
legal@joinpogo.com
If to Client:
As provided in the Order
21. Relationship of Parties.
Client and Pogo intend to act and perform as independent contractors. This Agreement is not intended to create a partnership, joint venture, agency or employment relationship between Client and Pogo or between a Party and the employees, agents or independent contractors of the other party. Each of Client and Pogo is and will remain responsible for its respective employees and agents and will make no claim against the other for compensation, vacation pay, sick leave, retirement benefits, social security benefits, workers’ compensation, disability or unemployment insurance benefits or employee benefits of any kind.
22. Subcontractors.
The Parties acknowledge and agree that Pogo may, from time to time require the support of one or more subcontractors in the performance of the Services.
23. Waiver.
The failure of either Party to insist upon or enforce the strict performance of the other Party with respect to any provision hereof, or to exercise any right hereunder, will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance.
24. Governing Law.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, without reference to its principles of conflicts of law. The Parties consent to the exclusive jurisdiction of the federal and state courts located within New York County, New York.
25. Entire Agreement.
This Agreement (with the DPA, Service Level Agreement, and any other attachments or exhibits), and each Order constitute the entire agreement between the parties with respect to the subject matter hereof. Orders may only be amended in a writing signed by both parties. This Agreement may be amended as set forth in the preamble, or in a writing signed by both parties. Notwithstanding any language to the contrary in any unilaterally issued purchase order, Client vendor portal terms and conditions, or any other linked or attached terms not expressly agreed to herein or in a signed writing by both parties, no such terms or conditions shall be deemed to apply to the Services provided hereunder. Any such unagreed terms are hereby expressly rejected and shall be wholly inapplicable and considered null and void. No terms, conditions, prior course of dealings, course of performance, usage of trade, understandings, purchase orders, acknowledgments, or agreements purporting to modify, vary, supplement, or explain any provision of this Agreement shall be effective unless hereafter made in writing and signed by the party to be bound, and any such modifications shall be expressly limited to those expressly provided for in such written amendment signed by both parties In the event of any conflict between (i) this Agreement and an Order, the Order shall control or (ii) this Agreement and any other document, this Agreement shall control.
26. Severability.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provision.
