Last Updated: June 16, 2016
The “Arrowshade” website is a website operated by Pomo One Marketing, Inc. (“POM,” “We,” or “Us”), an entity operating in Indian Country pursuant to laws of the Habematolel Pomo of Upper Lake, a federally recognized Indian Tribe (the “Tribe”). POM is not a lender, does not broker loans, and does not make loan or credit decisions.
If you submit, transfer or make available Information to POM, that Information will be shared with participating lenders, data aggregators, list managers, marketing partners and others in our network. .
- Our Relationship with You
- Eligibility and Use of Personal Information
- Restricted Activities
- Your Liability – Actions We May Take
- Disputes with POM
1. Our Relationship with You
1.1 The company. POM is a marketing and information services company that is owned by a federally recognized Indian tribe. It offers a secure online marketplace that allows merchants and marketing partners to drive traffic, generate leads and monetize data opportunities across various consumer markets.
1.3 Intellectual Property. The URLs representing the POM website(s), “Pomo One Marketing, Inc.,” and all related logos of our products and services described in our website(s) are either copyrighted by POM, trademarks or registered trademarks of POM or its licensors. In addition, all page headers, custom graphics, button icons, and scripts are either copyrighted by POM, service marks, trademarks, and/or trade dress of POM You may not copy, imitate, modify, alter, amend or use them without our prior written consent. All right, title and interest in and to the POM website and any content thereon is the exclusive property of POM and its licensors.
2. Eligibility and Use of Information
2.1 Eligibility. To be eligible for our Services, you must (i) be a resident of the United States; (ii) have full legal capacity to enter into a contract; and (iii) have successfully completed our vendor onboarding procedures, and (iv) POM has executed an Agreement with you. You further represent and warrant to us that when you provide Information to us you are providing accurate Information and you are not acting on behalf of, or for the benefit of, anyone else.
2.2 Information. You agree and understand that when you provide Information to us that will enter into Tribe’s jurisdiction, and you consent to Tribal laws exclusively governing this transaction. We may share your Information with other third parties who may inform you of products or services offered by us, our affiliates, and partners. You agree to allow third party merchants to contact you and present products and services that may be of interest to you.
2.3 Use of Information. In addition to the foregoing, we may also use your Information for a variety of purposes to do things like:
- Protect our rights and property and those of our customers.
- Respond to legal process and emergencies.
- Anonymize or aggregate Information for various purposes like market analysis and reporting.
- Monitor, evaluate or improve our Services or systems, or marketing strategies.
- Customize or personalize your experience with our Services.
4. Restricted Activities
4.1 Restricted Activities. In connection with your use of our website(s) or the Services, or in the course of your interactions with POM, or its agents or affiliates, you will not:
- Breach any applicable law, statute, contract, or regulation;
- Infringe upon POM’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
- Act in a manner that is obscene, defamatory, libelous, unlawfully threatening or unlawfully harassing;
- Provide false, inaccurate or misleading Information;
- Fail to provide us with further Information about you that we may reasonably request;
- Receive what we reasonably believe to be potentially fraudulent or unauthorized funds;
- Refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us;
- Use an anonymizing proxy;
- Conduct your activities or use the Services in a manner that results in or may result in complaints, Disputes, Claims, fees, fines, penalties and other liability to POM;
- Undertake activity that does or may present to us a credit or fraud risk, a sudden increase in exposure, or a significant or otherwise detrimental level of exposure (as POM reasonably believes based on the Information available to it);
- Facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information;
- Use any robot, spider, other automatic device, or manual process to monitor or copy our website without our prior written permission;
- Use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere, with our website or the Services;
- Copy, reproduce, communicate to any third party, alter, modify, create derivative works, publicly display or frame any content from the POM website(s) without our or any applicable third party’s written consent;
- Take any action that may cause us to lose any of the services from our internet service providers, payment processors, or other suppliers;
- Allow your use of the Service to present to POM a risk of non-compliance with POM’s regulatory obligations.
You agree that engaging in the above Restricted Activities diminishes POM customers’ safe access and/or use of the Service generally.
5. Your Liability – Actions We May Take
5.1 Actions by POM. If we have reason to believe that you have engaged in any Restricted Activities, we may take various actions to protect POM, a third party, or you from fees, fines, penalties and any other liability. The actions we may take include but are not limited to the following:
- We may, at any time and without liability, suspend, block, limit, close or cancel your right to use the Services.
- We may request information from you or otherwise update inaccurate Information you provided us;
- We may refuse to provide our Services to you in the future;
- We may take legal action against you.
In addition, and without limiting the generality of the foregoing, you agree that you will indemnify us and hold POM, our other companies in our corporate group, the people who work for us, or who are authorized to act on our behalf, harmless from and against any claims, demands, liabilities, actions, losses, damages, costs and expenses (including reasonable attorneys’ fees and expenses) related to or arising from your use of the Services, and any transactions entered into by you with a third party.
You agree that POM may recover amounts you owe it through any legal means available to it.
6. Disputes with Pomo One Marketing, Inc.
6.1 Arbitration Provision. This section 6 may be collectively referred to as the “Arbitration Provision.” In general, binding arbitration is a process in which persons with a dispute waive their rights to file a lawsuit in a court and waive their rights to have a jury trial. Instead, the parties agree to submit their disputes to a neutral third person (an “arbitrator”) for a decision. Arbitration proceedings are private and less formal than court proceeding. Each party to a dispute has an opportunity to present their evidence to the arbitrator regarding the dispute. After considering each party’s evidence and arguments, the arbitrator then issues a final and binding decision resolving the dispute. We will follow and you agree to follow Our policy of arbitrating all disputes, including the scope and validity of this Arbitration Provision. As part of agreeing to arbitrate any dispute, You explicitly waive any right You may have to participate in any class action against Us.
6.2 PRESERVATION OF SOVEREIGN IMMUNITY: The Information that you submit is being submitted by you to us as an economic arm, instrumentality, and corporation owned by the Tribe. The Tribe is a federally-recognized Tribe and enjoys governmental sovereign immunity. Because we and the Tribe are entitled to sovereign immunity, you will be limited as to what claims, if any, you may be able to assert against the Tribe and Us. Any complaint must be submitted by you or on your behalf to us as described below. It is the express intention of the Tribe and Us operating as an economic arm of the Tribe, to fully preserve, and not waive either in whole or in part, sovereign governmental immunity, and any other rights, titles, privileges, and immunities, to which we and the Tribe are entitled. To protect and preserve the rights of the parties, no person may assume a waiver of sovereign immunity.
THEREFORE, YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:
2. You acknowledge and agree that by entering into this Arbitration Provision:
(a) YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES;
(b) YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES; and
(c) YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT FILED AGAINST US AND/OR RELATED THIRD PARTIES.
3. All disputes including any Representative Claims against Us and/or related third parties shall be resolved by binding arbitration only on an individual basis with You. THEREFORE, THE ARBITRATOR SHALL NOT CONDUCT CLASS ARBITRATION; THAT IS, THE ARBITRATOR SHALL NOT ALLOW YOU TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN THE ARBITRATION.
4. Any party to a dispute, including related third parties, may send the other party written notice by certified mail return receipt requested of their intent to arbitrate and setting forth the subject of the dispute along with the relief requested, even if a lawsuit has been filed. Regardless of who demands arbitration, the following arbitration organizations will administer the arbitration: the American Arbitration Association (1-800-778-7879) https://www.adr.org. The party receiving notice of arbitration will respond in writing by certified mail return receipt requested within twenty (20) days. If You demand arbitration, You must inform Us in Your demand of the arbitration organization You have selected. If related third parties or We demand arbitration, You must notify Us within twenty (20) days in writing by certified mail return receipt requested of Your decision to select an arbitration organization. If You fail to notify Us, then We have the right to select an arbitration organization. The parties to such dispute will be governed by the laws of the Tribe and such rules and procedures used by the applicable arbitration organization applicable to consumer disputes, to the extent those rules and procedures do not contradict the express terms of this Arbitration Provision or the law of the Tribe, including the limitations on the arbitrator below. You may obtain a copy of the rules and procedures by contacting the arbitration organization listed above.
You have the right to request that arbitration take place within thirty (30) miles of Your residence or some other mutually agreed upon location, provided, however, that such election to have binding arbitration occur somewhere other than on Tribal land shall in no way be construed as a waiver of sovereign immunity or allow for the application of any other law other than the laws of the Tribe.
5. Throughout the arbitration, each party shall bear his or her own attorneys’ fees and expenses, such as witness and expert witness fees. The arbitrator shall apply applicable substantive Tribal law consistent with the Federal Arbitration Act (FAA), and applicable statutes of limitation, and shall honor claims of privilege recognized at law. The arbitrator may decide, with or without a hearing, any motion that is substantially similar to a motion to dismiss for failure to state a claim or a motion for summary judgment. If allowed by statute or applicable law, the arbitrator may award statutory damages and/or reasonable attorneys’ fees and expenses.At the timely request of any party, the arbitrator shall provide a written explanation for the award. The arbitrator’s award is binding and not appealable.
6. All parties, including related third parties, shall retain the right to enforce an arbitration award before the applicable governing body of the Tribe (“Tribal Forum”). Both You and We expressly consent to the jurisdiction of the Tribal Forum for the sole purposes of enforcing the arbitration award. The Tribe does not waive sovereign immunity.
7. This Arbitration Provision is made pursuant to a transaction involving both interstate commerce and Indian commerce under the United States Constitution and other federal and tribal laws. Thus, any arbitration shall be governed by the FAA and subject to the laws of the Tribe. If a final non-appealable judgment of a court having jurisdiction over this transaction and the parties finds, for any reason, that the FAA does not apply to this transaction, then Our agreement to arbitrate shall be governed by the laws of the Tribe.
8. This Arbitration Provision is binding upon and benefits You, Your respective heirs, successors and assigns. This Arbitration Provision is binding upon and benefits Us, Our successors and assigns, and related third parties. This Arbitration Provision continues in full force and effect, even if Your obligations have been paid or discharged through bankruptcy. This Arbitration Provision survives any cancellation, termination, amendment, expiration or performance of any transaction between You and Us and continues in full force and effect unless You and We otherwise agree in writing. If any of this Arbitration Provision is held invalid, the remainder shall remain in effect.
6.3 No Waiver. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
1. any loss of profits, goodwill, business, contracts, revenue or anticipated savings even if we are advised of the possibility of such damages, loss of profits, goodwill, business, contracts, revenue or anticipated savings; or
2. any loss or corruption of data; or
You alone are responsible for understanding and complying with any and all laws, rules and regulations of your specific jurisdiction that may be applicable to you in connection with your use of the POM Services.
“Calendar Year” means 1 January to 31 December inclusive in any year.
“Days” means calendar days.
“Information” means any confidential and/or personally identifiable information or other information that you provide or make available to POM.
“Pomo One Marketing, Inc. website(s)” means any URL through which we provide the Services to you.
“Policy” or “Policies” means any Policy or other agreement between you and POM that you entered into on the POM website(s), or in connection with your use of the Services.
“Policy Update” means a prior notice of Changes that POM may make available to you in writing.
“POM website(s)” means any URL through which we provide the Services to you.
“Services” means the products, services, portals and websites offered or available to you by POM.