Last Updated: May 2, 2024
Welcome to Mana Pool! Mana Pool is the operator of www.manapool.com (the “Site”) and the developer and operator of the Mana Pool mobile application (the “App”). Throughout these Terms of Service, the terms “we”, “us” “Mana Pool” and “our” refer to Mana Pool, Inc. Mana Pool offers the Site, and the App, including all information, tools and services available from the Site and the App (the “Services”) to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated below. NOTE THAT SECTION 22 OF THESE TERMS OF SERVICE CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
By visiting our site or the App and/or by accepting these terms and conditions (the “Terms of Service,” or “Terms”) upon check out when purchasing products via the Services, you agree to be bound by the following Terms, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the Services, including without limitation users who are browsers, vendors, customers, merchants, and/or contributors of content.
If you are registering for and/or using the Services on behalf of an organization, you are agreeing to these Terms of Service for that organization and promising that you have the authority to bind that organization to these Terms of Service. In that case, “you” and “your” will also refer to that organization, wherever possible.
Please read these Terms of Service carefully before accessing, using our website or opting to accept these Terms. By accessing or using any part of the Services, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any Services.
Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. You are encouraged to review these Terms of Service each time you use the Site or the App because your use of the Site or the App after the posting of changes will constitute your acceptance of the changes.
We grant you a personal, limited, non-transferable, non-exclusive license to access and use the Site and the App. We reserve the right, in our sole discretion and without notice to you, to revise the products and services available on the Site and the App and to change, suspend or discontinue any aspect of the Site or the App and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Site or the App or restrict your access to part, or all, of the Site or the App without notice or penalty. Your continued use of the Site and the App will constitute your acceptance of any such changes.
You agree your purchases of products and/or use of the Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Mana Pool or any of its affiliates regarding future functionality or features.
You may use the Site and the App only in compliance with these Terms. You are responsible for your own communications, including the transmission, uploading or posting of information to the Site or the App and are responsible for the consequences of such communications. Any other use of the Site or the App requires the prior written consent of Mana Pool. You may not otherwise copy, modify, or distribute the contents of this Site or the App without the prior written consent of Mana Pool. You may not modify, publish, transmit, participate in the transfer of, sell, create derivative works from, or in any way exploit any of the content found on the Site or the App, in whole or in part.
If you are using the Services as a seller, you hereby appoint Mana Pool as your limited payment collection agent solely for the purpose of accepting payment for the products that you sell through the Services. You also hereby agree to honor and abide by the terms of our Return Policy with respect to the return of your products sold through the Mana Pool marketplace.
If you are using the Services as a buyer, you understand that Mana Pool has been appointed as the sellers’ limited payments agent for purchases you make from such sellers on the Mana Pool marketplace. Accordingly, receipt of your payment by Mana Pool on behalf of a seller extinguishes your obligation to pay the seller in the amount of the payment received, subject to these Terms of Service.
We require all members to agree not to use the Site or the App, and specifically prohibit any use of the Site or the App, for any of the following purposes:
You may not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute content available on the Site or the App without the express written consent of Mana Pool. Further, you may not use any such automated means to manipulate the Site or the App, such as automating what are otherwise manual or one-off procedures. You may not take any action to interfere with, or disrupt, the Site or the App or any other user's use of the Site or the App, including, without limitation, via means of overloading, “flooding”, “mailbombing” or “crashing” the Site or the App, circumventing security or user authentication measures or attempting to exceed the limited authorization and access granted to you under these Terms. You may not frame portions of the Site or the App within another web site without the prior written consent of Mana Pool. You may not resell use of, or access to, the Site or the App to any third party without the prior written consent of Mana Pool.
The Sites are not targeted toward or intended for use by anyone under the age of 18. By agreeing to these Terms of Service, you represent that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (d) do not have more than one Mana Pool account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party. If not yet 18, then you may only use the Services with the monitoring of your parent or guardian, and you must get your parent or guardian to read these Terms and agree to them for you before you use the Services. If you are a parent or guardian and you provide your consent to your child's use of the Services, you hereby agree to be bound by these Terms with respect of your child’s use of the Services.
A breach or violation of any of the Terms will result in an immediate termination of your access to the Services.
As part of our order processing procedures, we may screen received orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity. If we suspect fraudulent, unauthorized or illegal activity, we may reject your order or we may contact you at the phone number or email address you provided to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.
We are not responsible if information made available on this Site or App is not accurate, complete or current. The material on this Site and App is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information.
All descriptions, images, references, features, content, specifications, products, and prices of products and services described or depicted on the Site and the App are subject to change at any time without notice. Certain specifications and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services on the Site and the App does not imply or warrant that these products or services will be available. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any item purchased from this Site and the App.
We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our Site or the App. You agree that it is your responsibility to monitor changes to our Site and the App.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected. Mana Pool tries to be as accurate as possible in all aspects of card pricing and product availability. However, Mana Pool does not guarantee that product listings, prices, descriptions, available quantities, shipping times or release dates are accurate, complete, reliable, current or error-free. If a product you purchase from Mana Pool is not as described, your recourse is to return it or request a partial refund pursuant to our Return Policy.
Prices for Services and any Products made available through the Services are subject to change without notice. The current pricing for the Services can be found in our Pricing Policy.
We reserve the right at any time to modify or discontinue the Services (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.
Mana Pool reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product or service; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar any user from making or completing any or all Transaction(s); and (iv) refuse to provide any user with any product or service.
When you purchase any product or service made available through the Site and the App (each such purchase, a "Transaction"), you agree to provide current, complete and accurate purchase and account information for all purchases made via our Service on our Site and App. You agree to promptly update your account and other information, including your email address and credit card account information, expiration dates and shipping address, so that we can complete your Transactions and contact you as needed.
You may only have one account per individual user. We shall have the sole discretion to determine if you have created more than one account per individual user and if we determine that you have done so, we reserve the right to cancel your account and modify any orders that you have placed through the Services.
These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. We reserve the right to refuse any order you place with us. If you have obtained multiple promotional discounts as a result of setting up multiple accounts, we may charge you the difference for any products purchased with a discount that was obtained in violation of these Terms or the stated terms of the promotion or discount.
In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any Transaction. By submitting such information, you grant to Mana Pool the right to provide such information to third parties for purposes of facilitating the completion of Transactions 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 by placing an order on the Site or the App and agreeing to these Terms, you are entering into a binding contract with Mana Pool and agree to pay all charges that may be incurred by you or on your behalf through the Site and the App, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.
You agree that additional terms and conditions may apply to specific products, orders or your use of certain portions of the Site or the App (“Additional Terms”), which Additional Terms are made part of these Terms by reference. If there is a conflict between these Terms and the Additional Terms, the Additional Terms shall control.
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the Site and App is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the Site and App (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
The Service may contain links or connections to third party websites, products or services that are not owned or controlled by Mana Pool. When you access third party websites or use third party services or products, you accept that there are risks in doing so, and that Mana Pool is not responsible for such risks. We encourage you to be aware when you leave the Service and to read the terms and conditions and privacy policy of each third party website or service that you visit or utilize.
Mana Pool has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Service. In addition, Mana Pool will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Service, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Mana Pool shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between users and any third party, you agree that Mana Pool is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Mana Pool, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
You acknowledge that you will be able to create, transmit, publish or display variety of information, reviews, recommendations, messages, comments, posts, text, graphics, photographs, data, and other materials through use of the Services. All such information is referred to below as “User Content.”
You agree that you are solely responsible for (and that Mana Pool has no responsibility to you or to any third party for) any User Content, and for the consequences of your actions (including any loss or damage which Mana Pool may suffer) in connection with such User Content. If you are registering for these Services on behalf of an organization, you also agree that you are also responsible for the actions of associated users and for any User Content that such associated users might upload, record, publish, post, link to, or otherwise transmit or distribute through use of the Services. You agree that your User Content will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your User Content will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You are responsible for all User Content you contribute, in any manner, to the Service, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You are responsible for all your activity in connection with the Services. Furthermore, you acknowledge that Mana Pool does not control or actively monitor content uploaded by other users of the Services and, as such, does not guarantee the accuracy, integrity or quality of such content. You acknowledge that by using the Services, you may be exposed to materials that are offensive, indecent or objectionable. Under no circumstances will Mana Pool be liable in any way for any such content, and we take no responsibility and assume no liability for any User Content posted by you or any third-party.
Mana Pool may refuse to store, provide, or otherwise maintain your User Content for any or no reason. Mana Pool may remove your User Content from the Services at any time if you violate these Terms or if the Services are canceled or suspended. If User Content is stored using the Services with an expiration date, Mana Pool may also delete the User Content as of that date. User Content that is deleted may be irretrievable. You agree that Mana Pool has no responsibility or liability for the deletion or failure to store any User Content or other communications maintained or transmitted through use of the Services.
Mana Pool reserves the right (but shall have no obligation) to monitor and remove User Content from the Services, in its discretion. You agree to immediately take down any User Content that violates these Terms, including pursuant to a takedown request from Mana Pool. Mana Pool also reserves the right to directly take down such User Content.
By submitting, posting or otherwise uploading User Content on or through the Services you give Mana Pool a worldwide, nonexclusive, perpetual, fully sub-licensable, royalty-free right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute , publicly perform, and publicly display such User Content (in whole or part) worldwide via the Services or otherwise, and/or to incorporate it in other works in any form, media, or technology now known or later developed for any legal business purpose.
You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Services. By submitting any feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Mana Pool under any fiduciary or other obligation, and that we are free to use such feedback without any additional compensation to you, and/or to disclose such feedback on a non-confidential basis or otherwise to anyone. Further, you warrant that your feedback is not subject to any license terms that would purport to require us to comply with any additional obligations with respect to any products or services that incorporate any of your feedback.
In accordance with the DMCA, we’ve adopted the policy below toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.
Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to the Mana Pool’s Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):
Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
Please contact Mana Pool's Designated Agent at the following address:
Mana Pool Inc.
Attn: Chief Executive Officer
1950 W Corporate Way, Anaheim, CA 92801
You acknowledge and agree that Mana Pool own all legal right, title and interest in and to the Site, App and Services and that the Site, App and Services are protected by copyrights, trademarks, patents, or other proprietary rights and laws (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
“Mana Pool,” the Mana Pool logo and any other Mana Pool product or service names, logos or slogans that may appear on the Site, App or Service are trademarks of Mana Pool and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Mana Pool” or any other name, trademark or Product or service name of Mana Pool without our prior written permission. In addition, the look and feel of the Site, App and Services, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Mana Pool and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Sites or Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Mana Pool.
Your submission of personal information through the Services is governed by our Privacy Policy.
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at.
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Services or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Services or on any related website, should be taken to indicate that all information in the Services or on any related website has been modified or updated.
Unless otherwise noted, the price displayed for products from any individual seller on Mana Pool represents the current price for that product, not including any shipping charges, taxes or processing fees that may be required.
Your total price will include the price of the product plus any applicable sales tax; such state and local sales tax is based on the shipping address and the sales tax rate in effect at the time you purchase the product. We will charge tax only in states where the goods sold over the Internet are taxable.
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the Services: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet; or (l) in a manner inconsistent with, or in violation of, these Terms. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
Mana Pool attempts to display information on this site and in connection with the Services as accurately as possible. However, Mana Pool does guarantee not make any representations or warranties concerning any content contained in or accessed on the Site and the App or through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Mana Pool or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
EXCEPT IN CASES OF WILLFUL MISCONDUCT AND RECKLESS CONDUCT ON THE PART OF MANA POOL, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL MANA POOL BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR PRODUCTS, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM MANA POOL, OR FROM EVENTS BEYOND THE MANA POOL’S REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO MANA POOL’S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF MANA POOL ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR PRODUCTS EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS OR EXCEED THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO MANA POOL IN CONNECTION WITH THE SERVICES IN THE PRECEDING TWELVE (12) MONTH PERIOD. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THRIVE MARKEY’S SOLE LIABILITY AND OBLIGATION, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE MANA POOL FROM AND AGAINST, AND COVENANT NOT TO SUE, FOR ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE SERVICES AND THE PRODUCTS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER 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.”
THE LIMITATIONS SET FORTH IN THIS SECTION 18 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY PRODUCTS YOU PURCHASE DIRECTLY FROM US (AND NOT FROM A THIRD PARTY THROUGH THE SERVICES), OR FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.
You agree to indemnify and hold Mana Pool, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your illegal use of the Services (including any actions taken by a third party using your account), (b) your violation of these Terms of Service, (c) your posting of any defamatory or infringing content on the Site or App, and (d) your violation of any third party rights in connection with your use of the Service, the Site and the App. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
You may not assign, delegate or transfer these Terms of Service or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Mana Pool’s prior written consent. We may transfer, assign, or delegate these Terms of Service, and our Privacy Policy, along with our rights and obligations herein, and thereto without consent.
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
Account termination may result in destruction of any content associated with your account, so keep that in mind before you decide to terminate your use of the Services.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MANA POOL AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
BINDING ARBITRATION:
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 1 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Mana Pool agree (a) to waive your and Mana Pool’s respective rights to have any and all Disputes arising from or related to these Terms, or the Site, and the Apps, content or products, resolved in a court, and (b) to waive your and Mana Pool’s respective rights to a jury trial. Instead, you and Mana Pool agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
No Class Arbitrations, Class Actions or Representative Actions: You and Mana Pool agree that any Dispute arising out of or related to these Terms, the Sites, the App, Content, the Service or products sold on the Site is personal to you and Mana Pool and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Mana Pool agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Mana Pool agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
Notice; Informal Dispute Resolution
You and Mana Pool agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Mana Pool shall be sent by certified mail or courier to Mana Pool, Inc., Attn: Chief Executive Office, 1950 W Corporate Way, Anaheim CA 92801. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Mana Pool account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Mana Pool cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Mana Pool may, as appropriate and in accordance with this Section 22, commence an arbitration proceeding or, to the extent specifically provided for above, file a claim in court.
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 1 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND MANA POOL AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR MANA POOL WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND MANA POOL WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).
You and Mana Pool agree that (a) any arbitration will be conducted confidentially in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Santa Clara County, California, or the Northern District of California.
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
If any term, clause or provision of this Section 22 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 22 will remain valid and enforceable. Further, the waivers set forth in Section 22 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 22 by writing to: Mana Pool, Inc., Attn: Chief Executive Office, 1950 W Corporate Way, Anaheim CA 92801. In order to be effective, the opt out notice must include your full name and email address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 23.
These Terms of Service and your relationship with Mana Pool are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms or to your relationship with Mana Pool shall be finally settled in Santa Clara County, California, in English. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, County of Santa Clara. You and Mana Pool agree that these Terms affect interstate commerce and that the enforceability of this Section 23 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms of Service shall otherwise remain in full force and effect and enforceable. You and Mana Pool agree that these Terms of Service are the complete and exclusive statement of the mutual understanding between you and us, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms of Service, and that all modifications to these Terms of Service must be in a writing signed by both parties (except as otherwise provided herein). No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and you do not have any authority of any kind to bind Mana Pool in any respect whatsoever. You and Mana Pool agree there are no third party beneficiaries intended under these Terms.
If you have any questions about these Terms of Service or if you wish to make any complaint or claim with respect to the Services, please contact us at: support@manapool.com or:
Mana Pool
1950 W Corporate Way, Anaheim CA 92801
Attn: Chief Executive Office