Thank you for your interest in Perfecting Pizza, LLC (“Perfecting Pizza” or “We” or “Us”), which offers its subscription services (the “Subscription Services”) through the web site located at http://www.perfectingpizza.com and any related application programming interfaces (API’s), mobile applications, including but not limited to Perfect Food Cost—software in the format of a React Native program for use on handheld mobile devices (the “Application”)—and online services (the “Site”). The following Terms of Service are a legal contract between you (“You”) and Perfecting Pizza regarding your use of the Subscription Services. Users of the Subscription Services are referred to individually as “User” and collectively as “Users”.
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY REGISTERING FOR, ACCESSING OR USING THE SUBSCRIPTION SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE PERFECTING PIZZA PRIVACY NOTICE AND ANY ADDITIONAL GUIDELINES (AS DEFINED BELOW) (COLLECTIVELY, THE “TERMS”).
BY SUBMITTING USER-GENERATED CONTENT—INCLUDING ANY TRADE SECRET (INCLUDING RECIPES, ETC.)—VIA THE SUBSCRIPTION SERVICES INCLUDING THE APPLICATION, YOU AGREE THAT IT MAY BE VIEWED AND ACCESSED BY THE COMPANY AND/OR ITS AFFILIATE, GRANDE CHEESE COMPANY. THERE SHALL BE NO GUARANTEE OF CONFIDENTIALITY FOR SUCH USER-GENERATED CONTENT AS AMONG THE COMPANY AND GRANDE CHEESE COMPANY. GRANDE CHEESE COMPANY MAY UTILIZE SAID USER-GENERATED CONTENT FOR ITS INTERNAL BUSINESS PURPOSES. BY UTILIZING THE SUBSCRIPTION SERVICES, YOU ACKNOWLEDGE AND AUTHORIZE SUCH USE OF YOUR USER-GENERATED CONTENT BY THE COMPANY AND/OR GRANDE CHEESE COMPANY. NOTWITHSTANDING THE FOREGOING, YOU HEREBY RELEASE ANY AND ALL LEGAL CLAIMS AGAINST THE COMPANY FOR ANY PERCEIVED VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT ASSOCIATED WITH ANY USER-GENERATED CONTENT, INCLUDING TRADE SECRET(S).
THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 11, BELOW.
- a. Registration. In order to use the Subscription Services, you must register for an account and pay applicable fees and charges. You will be asked to provide a password in connection with your account. You are solely responsible for maintaining the confidentiality of your account and password, and You agree to accept responsibility for all activities that occur under your account or password. You agree that the information You provide to Perfecting Pizza, whether at registration or at any other time, will be true, accurate, current, and complete. You also agree that You will ensure that this information is kept accurate and up-to- date at all times. If You have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), then You agree to immediately notify Perfecting Pizza at firstname.lastname@example.org. You may be liable for the losses incurred by Perfecting Pizza or others due to any unauthorized use of your account.
- b. Fees. You acknowledge that you will be required to pay applicable fees and charges (including initial and renewal) by credit card. Fees and charges will be based on the number of Authorized Users and Authorized Locations for which you have received a license in accordance with these Terms. For purposes of these Terms, “Authorized User(s)” means the named individual(s) authorized to access and use the Licensed Content, and “Authorized Location(s)” shall mean the specific retail store(s) or other locations where the Licensed Content may be utilized. In addition to any other fees required under these Terms, You agree to pay, and to indemnify and hold Perfecting Pizza harmless from, any sales, use, excise, import or export, value added or similar tax or duty not based on Perfecting Pizza’s net income, including any penalties and interest, as well as any costs associated with the collection or withholding thereof; and all governmental permit fees, license fees and customs and similar fees levied upon the delivery by Perfecting Pizza of the Licensed Content which Perfecting Pizza may incur in respect of these Terms.
- c. Audit. You shall maintain complete and accurate written records describing all information which may be reasonably required by Perfecting Pizza to determine whether You are complying with these Terms. To ensure compliance with these Terms, Perfecting Pizza shall have the right to conduct an inspection and audit of Your facilities and relevant books and records during regular business hours at Your offices and in such a manner as not to interfere unreasonably with Your normal business activities. If any such audit should disclose any underpayment of any fees, You shall promptly pay Perfecting Pizza such underpaid amount, together with interest thereon at a rate of one and one-half percent (1.5%) per month or partial month during which each such amount was owed and unpaid, or the highest rate allowed by law, whichever is lower. If the amount of such underpayment exceeds five percent (5%) of amounts otherwise paid, then You shall immediately reimburse Perfecting Pizza for its reasonable expenses associated with such audit.
3. Modification of the Terms.
Perfecting Pizza reserves the right, at our discretion, to change, modify, add, or remove portions of the Terms at any time. Please check the Terms and any Guidelines periodically for changes. Your continued use of the Subscription Services after the posting of changes constitutes your binding acceptance of such changes. For any material changes to the Terms, Perfecting Pizza will make reasonable effort to provide notice to You of such amended Terms, such as by an email notification to the address associated with Your account or by posting a notice on the Site, and such amended terms will be effective against You on the earlier of (i) Your actual notice of such changes and (ii) thirty days after Perfecting Pizza makes reasonable attempt to provide You such notice. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose.
4. Proprietary Materials; Licenses
- a. Proprietary Materials. The Site and Subscription Services are owned and operated by Perfecting Pizza. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), software, services, content (including without limitation Licensed Content as defined below), and all other elements of the Site and Subscription Services (the “Subscription Materials”) are protected by United States and international copyright, patent, and trademark laws, international conventions, trade secret laws and other applicable laws governing intellectual property and proprietary rights. Except as otherwise set forth in this Section 4, all Subscription Materials, and all trademarks, service marks, and trade names, contained on or available through the Site and Subscription Services are owned by or licensed to Perfecting Pizza, and Perfecting Pizza reserves all rights therein and thereto not expressly granted by these Terms.
- b. Licensed Content. Perfecting Pizza makes available through the Subscription Services certain videos, templates, tools, spreadsheets, data bases, books, articles and related materials that are owned by Perfecting Pizza or its third-party licensors (the “Licensed Content”). Perfecting Pizza grants to the Authorized User(s) a non-exclusive, non-transferable, non-sublicensable right to access and use the Licensed Content as made available through the Subscription Services by Perfecting Pizza solely for Your internal business and non-commercial purposes and solely for the Authorized Locations. For the avoidance of doubt, only the named Authorized Users and the named Authorize Locations may use the Licensed Content; Authorized Users and Authorized Locations are not transferable. You may not download, distribute, sell, lease, modify, or otherwise provide access to the Licensed Content to any third party. This license is personal to each Authorized User and Authorized Location and Licensed Content may not be shared with or used by other colleagues within Your organization or with any other location that is not an Authorized Location. You shall ensure that: (a) only the Authorized User(s) will access and use the Licensed Content; (b) at all times the number of Authorized Users of the Licensed Content does not exceed the total number of subscriptions You have purchased; and (c) Authorized Users are either employees of Your organization or Your consultants/contractors (limited to the period of engagement and for the sole purpose of providing services to You); and (d) the Licensed Content is used only at and solely for the benefit of the Authorized Locations. You shall ensure that each Authorized User complies with all provisions of these Terms applicable to Access to and use of the Licensed Content by any other third party is not permitted.
- c. Confidentiality. The Subscription Materials constitute and are comprised of the confidential and trade secret information of Perfecting Pizza and its third-party suppliers (“Confidential Information”), and You agree not to use or disclose the Subscription Materials other than as is expressly authorized by these Confidential Information does not include (i) information known to You at the time of disclosure, (ii) information that is disclosed to you by a third party not under an obligation of confidentiality to Perfecting Pizza, (iii) information that is or becomes generally known, (iv) information that You independently develop without reference to or reliance on the Confidential Information, or (v) information required by law or regulation to be disclosed by You to the extent so disclosed. You agree to safeguard the Subscription Materials against unauthorized use or disclosure with means at least as stringent as those You uses to safeguard Your own confidential information, and in no event with less than reasonable means.
- d. Covenant Not to Infringe. You acquire only a right to use the Licensed Content as authorized herein. You agree not to contest or challenge Perfecting Pizza’s or its third party suppliers’ ownership of the Subscription Materials and associated intellectual property rights, and not to take any action that would infringe, misappropriate, constitute unfair competition with respect to, or otherwise violate Perfecting Pizza’s or its third party suppliers’ ownership of or rights in, the Subscription Materials.
- e. Impermissible Uses. Without limiting the generality of the foregoing, the following are types of uses that Perfecting Pizza expressly defines as falling outside of “non-commercial” use:
- the sale or rental of (a) any part of the Licensed Content, (b) any derivative works based at least in part on the Licensed Content, or (c) any collective work that includes any part of the Licensed Content;
- providing training, support, or other services that use or reference the Licensed Content in exchange for a fee; and
- the sale of advertisements, sponsorships, or promotions placed on the Licensed Content, or any part thereof, or the sale of advertisements, sponsorships, or promotions on any website or blog containing any part of the Licensed Content, including without limitation any “pop-up advertisements”.
- ii. Use Characterization. Whether a particular use of the Licensed Content is “non-commercial” depends on the use, not the User. Thus, a use of the Licensed Content that does not require that Users pay fees and that does not provide an entity with a commercial advantage is “non-commercial,” even if this use is by a commercial entity. Conversely, any use that involves charging Users in connection with their access to the Licensed Content is not “non-commercial,” even if this use is by a non-profit entity. As an example, a company’s use of the Licensed Content for internal professional development or training of employees is permitted, so long as the company charges no fees, directly or indirectly, for such use. Conversely, as another example, a company’s use of the Licensed Content in connection with an fee-based training or educational program is NOT “non-commercial” and is not permitted.
5. Prohibited Conduct. YOU AGREE NOT TO:
- a. use the Subscription Services for any external or commercial use or purpose unless expressly permitted by Perfecting Pizza in writing, it being understood that the Subscription Services are intended for personal, internal, non-commercial use only;
- b. scrape, rent, lease, loan, sell, resell, sublicense, distribute, or publicly display any Subscription Materials;
- c. copy, download, reproduce, modify or create derivative works of any Subscription Materials except as expressly permitted by Perfecting Pizza in writing and only to the extent made available by Perfecting Pizza for copying, downloading, reproducing, modifying or creating derivative works.
- d. post, upload, or distribute any defamatory, libelous, or inaccurate content;
- e. post, upload, or distribute any content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
- f. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the accounts of others without permission, or perform any other fraudulent activity;
- g. delete the copyright or other proprietary rights notices on the Site or on any Subscription Materials;
- h. make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Subscription Services (including, but not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);
- i. use the Subscription Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
- j. defame, harass, abuse, threaten or defraud Users of the Subscription Services, or collect, or attempt to collect, personal information about Users or third parties without their consent;
- k. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Subscription Services, Licensed Content, or features that prevent or restrict use or copying of any content accessible through the Subscription Services, or features that enforce limitations on the use of the Subscription Services or Licensed Content;
- l. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Subscription Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- m. modify, adapt, translate or create derivative works based upon the Subscription Services or any part thereof, except and only to the extent expressly permitted by Perfecting Pizza herein or to the extent the foregoing restriction is expressly prohibited by applicable law; or
- n. intentionally interfere with or damage operation of the Subscription Services or any User’s enjoyment of it, by any means, including without limitation by participation in any denial-of-service type attacks or by uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
6. Third-Party Sites, Products and Services; Links.
The Subscription Services may include links or references to other web sites or services solely as a convenience to Users (“Reference Sites”). Perfecting Pizza does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH REFERENCE SITES IS SOLELY AT YOUR OWN RISK.
- a. Termination by Perfecting Pizza. Perfecting Pizza, in its sole discretion, for any breach by You of these Terms, and without penalty, may terminate any account (or any part thereof) You may have with Perfecting Pizza or your use of the Subscription Services and remove and discard all or any part of your account and User profile at any time. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Perfecting Pizza may have at law or in equity. As discussed herein, Perfecting Pizza does not permit copyright, trademarks, or other intellectual property infringing activities in using the Subscription Services, and will terminate access to the Subscription Services, and remove all content submitted, by any Users who are found to be repeat infringers.
- b. Termination by You. Your only remedy with respect to any dissatisfaction with (i) the Subscription Services, (ii) any term of these Terms, (iii) Guidelines, (iv) any policy or practice of Perfecting Pizza in using the Subscription Services, or (v) any content or information transmitted through the Subscription Services, is to terminate the Terms and your account. You may terminate the Terms at any time by deleting your login account for the Subscription Services and discontinuing use of any and all parts of the Subscription Services.
You agree to indemnify, defend, and hold harmless Perfecting Pizza, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners (“Perfecting Pizza Indemnitees”) from any claims, losses, damages, liabilities, and expenses (including legal fees and expenses), arising out of any use or misuse of the Subscription Services, any violation of the Terms, or any breach of the representations, warranties, and covenants made herein. Perfecting Pizza reserves the right, at your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Perfecting Pizza, and You agree to cooperate with Perfecting Pizza’s defense of these claims. Perfecting Pizza will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
9. Disclaimers; No Warranties
- a. No Warranties. THE SITE, THE SUBSCRIPTION SERVICES AND ALL DATA, INFORMATION, SOFTWARE, SUBSCRIPTION MATERIALS, CONTENT, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SUBSCRIPTION SERVICES, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PERFECTING PIZZA, AND ITS AFFILIATES AND LICENSORS, DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PERFECTING PIZZA OR THROUGH THE SUBSCRIPTION SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
- b. Content. PERFECTING PIZZA, AND ITS SUPPLIERS, LICENSORS, AND AFFILIATES, DO NOT WARRANT THAT THE SUBSCRIPTION SERVICES OR ANY DATA, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
- c. NO ADVICE. THE SUBSCRIPTION MATERIALS ARE INTENDED ONLY AS GENERAL RESOURCES. THEY HAVE NOT BEEN APPROVED, SANCTIONED, OR OFFICIALLY PROMULGATED BY AN ATTORNEY, HUMAN RESOURCE PROFESSIONAL, OR ANY OTHER FORMAL REGULATORY OR NON-REGULATORY AGENCY. IN MAKING THESE MATERIALS AVAILABLE, NEITHER PERFECTING PIZZA OR ANY OF ITS AFFILIATED ENTITIES ARE ENGAGED IN RENDERING LEGAL, TAX, ACCOUNTING, OR OTHER PROFESSIONAL SERVICES OR ADVICE. YOU ARE STRONGLY ENCOURAGED TO CONSULT AN APPROPRIATE LICENSED PROFESSIONAL OR PROFESSIONALS TO REVIEW AND APPROVE THESE MATERIALS FOR YOUR OWN PLANNED AND PARTICULAR USES.
- d. Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOUR USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAINING OF CONTENT, SUBSCRIPTION MATERIALS, SOFTWARE, OR DATA THROUGH THE SUBSCRIPTION SERVICES (INCLUDING THROUGH ANY API’S) IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS THEREFROM.
- e. Limitations by Applicable Law. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
10. Limitation of Liability and Damages.
- a. Limitation of Liability. Limitation of Damages. UNDER NO CIRCUMSTANCES SHALL THE COMPANY, AND ITS EMPLOYEES, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES AND THEIR RELATED COMPANIES, INCLUDING, BUT NOT LIMITED TO ANY PLATFORM AND THE VENDORS, BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR PROFITS, LOSS OF DATA, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE SUBSCRIPTION SERVICES AND/OR THESE TERMS. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SUBSCRIPTION SERVICES IS TO STOP USING THE SUBSCRIPTION SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SUBSCRIPTION SERVICES AND/OR THESE TERMS OR ANY LINKS ON THE SUBSCRIPTION SERVICES, INCLUDING THOSE PROVIDED BY THE COMPANY, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SUBSCRIPTION SERVICES OR ANY LINKS ON THE SUBSCRIPTION SERVICES, AND ALSO TO PHYSICAL DAMAGES OR INJURY SUFFERED AS A RESULT OF ANY INFORMATION, ADVICE, OR THE LIKE RECEIVED BY YOU EITHER DIRECTLY OR INDIRECTLY FROM THE SUBSCRIPTION SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY CONTENT POSTED BY A THIRD-PARTY, USER-GENERATED CONTENT, OR CONDUCT OF A THIRD-PARTY ON THE SUBSCRIPTION SERVICES, OR ANY OTHER USERS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF THE COMPANY AND ITS EMPLOYEES, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES AND THEIR RELATED COMPANIES EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE SUBSCRIPTION SERVICES, OR IN ANY WAY RELATED TO THIS AGREEMENT, MUST BE FILED WITHIN SIX (6) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM WILL BE FOREVER BARRED. IN SOME JURISDICTIONS LIMITATIONS OF LIABILITY ARE NOT PERMITTED. IN SUCH JURISDICTIONS, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING, THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
- b. Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT PERFECTING PIZZA HAS OFFERED THE SUBSCRIPTION SERVICES AND ENTERED INTO THE TERMS IN RELIANCE UPON THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND PERFECTING PIZZA, AND THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND PERFECTING PIZZA. PERFECTING PIZZA WOULD NOT BE ABLE TO PROVIDE THE SUBSCRIPTION SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
- a. Notice. Perfecting Pizza may provide You with notices, including those regarding changes to the Terms, by email, regular mail, postings on the Subscription Services, or other reasonable means. Notice will be deemed given twenty-four hours after email is sent, unless Perfecting Pizza is notified that the email address is invalid. Alternatively, we may give You legal notice by mail to a postal address, if provided by You through the Subscription Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Subscription Services is deemed given 30 days following the initial posting.
- b. Waiver. The failure of Perfecting Pizza to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. Any waiver of any provision of the Terms will be effective only if in writing and signed by Perfecting Pizza.
- c. Dispute Resolution.
- Governing Law. The Terms will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to any principles of conflicts of law.
- Pre-Arbitration Dispute Resolution. The Company is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing us at email@example.com and mailing a duplicate copy via registered mail to the Company at O. BOX 282 Fort Mill, SC 29716. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice should be sent to firstname.lastname@example.org (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If the Company and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or the Company may commence an arbitration proceeding.
- Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND THE COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THE COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
- In the event that a lawsuit is filed, or a claim is made and demanded, by You, or on Your behalf in any form whatsoever, against a User of the Subscription Services, and the Company needs to seek legal counsel for any involvement in the matter, You or Your legal representative shall pay for all legal fees incurred by the Company relating thereto. In such matters, and in any other matter in which You are liable to the Company for payment of attorneys’ fees, as set forth herein, or otherwise permitted by law, nothing contained in this Agreement, including this clause, shall in any way limit the Company’s right to hire legal counsel of its choice.
- This Agreement, THE SUBSCRIPTION SERVICES, AND/OR ANY DISPUTE ARISING THEREFROM shall be governed by and construed according to the laws of the COMMONWEALTH OF PENNSYLVANIA. The parties waive any other venue to which either party might be entitled by domicile or otherwise. THE COMPANY makes no representation that materials on the Subscription Services are Appropriate or available for use in other locations. With respect to any dispute arising out of or related to this Grant OF A LICENSE, OR THIS AGREEMENT, YOU hereby agree that all disputes arising OR TOUCHING THIS AGREEMENT OR THE SUBSCRIPTION SERVICES shall promptly be submitted to arbitration in COMMONWEALTH OF PENNSYLVANIA, before one arbitrator in accordance with the rules of the American Arbitration Association. The arbitrator may assess costs IN FAVOR OF THE COMPANY ONLY, including ATTORNEYS’ fees ACTUALLY INCURRED, in such manner as the arbitrator deems fair and equitable. The award of the arbitrator shall be final and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction. THE PARTIES HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE ARISING OUT OF This Agreement, THE SUBSCRIPTION SERVICES, AND/OR ANY DISPUTE ARISING THEREFROM.
- d. Severability. If any provision of the Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from the Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
- e. Assignment. The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by You without Perfecting Pizza’s prior written consent, but may be assigned by Perfecting Pizza without consent or any restriction. Any assignment attempted to be made in violation of the Terms shall be null and void.
- f. Force Majeure. Perfecting Pizza shall have no liability whatsoever for interruptions of service or other breach of these Terms due to fire, explosion, lightning, power surge or failure, water or floods, acts of God, war, civil disturbance, acts or omissions of communications carriers, governmental acts, natural disasters, strikes or industrial disputes, political disturbances, epidemics and any and all other circumstances which, against its will, prevent or hinder Perfecting Pizza from performing its obligations. The parties have specifically considered force majeure scenarios—including, but not limited to, pandemic, civil unrest and/or governmental action—and agreed that such shall excuse the Company from performance under this Agreement.
- g. Headings. The heading references herein are for convenience purposes only, do not constitute a part of the Terms, and will not be deemed to limit or affect any of the provisions hereof.
- f. Survival. Upon termination of the Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 4(a), 4(c), 4(d), 5, 8, 9, 10 and 11.
- h. Entire Agreement. The Terms, the Privacy Notice and Guidelines constitute the entire agreement between You and Perfecting Pizza relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to the Terms, Privacy Notice or Guidelines made by Perfecting Pizza as set forth in Section 3 above.
- i. Disclosures. The Subscription Services provided hereunder are offered by Perfecting Pizza: P.O. BOX 282 Fort Mill, SC 29716
These Terms were last updated on January 1, 2021.
Account means a unique account created for You to access the Application.
Affiliate means an entity that controls, is controlled by or is under common control with a party, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority. Affiliate includes Grande Cheese Company.
Application means the software program provided by the Company downloaded by You on any electronic device, named “Perfect Food Cost”
Company (referred to as either “the Company,” “We,” “Us” or “Our” in this Agreement) refers to Perfecting Pizza LLC, P.O. BOX 282 Fort Mill, SC 29716.
For the purpose of the GDPR, the Company is the Data Controller.
Country refers to: United States
Data Controller, for the purposes of the GDPR (“General Data Protection Regulation”), refers to the Company as the legal person which alone or jointly with others determines the purposes and means of the processing of Personal Data.
Device means any device that can access the Application such as a computer, a cellphone or a digital tablet.
Personal Data is any information that relates to an identified or identifiable individual. For the purposes for GDPR, Personal Data means any information relating to You such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity. May include Information and/or User-Generated Content, (as those terms are defined in the accompanying End User License Agreement and/or Terms of Service)
Sale means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information to another business or a third party for monetary or other valuable consideration.
Service refers to the Application.
Service Provider means any natural or legal person who processes the data on behalf of the Company. It refers to third-party companies or individuals employed by the Company to facilitate the Service, to provide the Service on behalf of the Company, to perform services related to the Service or to assist the Company in analyzing how the Service is used. For the purpose of the GDPR, Service Providers are considered Data Processors.
Third-party Social Media Service refers to any website or any social network website through which a User can log in or create an account to use the Service.
Usage Data refers to data collected automatically, either generated by the use of the Service or from the Service infrastructure itself (for example, the duration of a page visit).
You means the individual accessing or using the Service, or the company, or other legal entity on behalf of which such individual is accessing or using the Service, as applicable. Under GDPR (General Data Protection Regulation), You can be referred to as the Data Subject or as the User as you are the individual using the Service.
What information do we collect?
We collect information from you when you register for an Account on our Application or fill out a form. We will collect any and all information that you input. We may also collect your physical location through “geo-tagging,” first and last name, home or other physical address, including, but not limited to, Information and/or User-Generated Content, (as those terms are defined in the accompanying End User License Agreement and/or Terms of Service), street name and name of a city or town, and billing information, such as billing name and address, bank account number, routing number and in some instances a credit card number and/or other identifier that permits the physical or online contacting of a specific individual, depending on your activities while on the Application.
What we use information for
Any of the information we collect from you may be used in one of the following ways: to personalize your experience (your information helps us to better respond to your individual needs); to improve the Application (we continually strive to improve our offerings based on the information and feedback we receive from you); to improve customer service (your information helps us to more effectively respond to your customer service requests and support needs); to send periodic emails. We can also use your information to monitor and assemble analytics pertaining to an individual’s use of the Application. The Company may use the information that we collect to setup the Accounts for registered users and may also use the information to send information regarding our company or partners, such as promotions and events. The email address you provide may be used to send you occasional company news, updates, related product or service information, etc. If at any time you would like to unsubscribe from receiving future emails, please reply to the Company email and request that your email address be removed from the list.
Third party links/transactions
Residents of the State of California, under certain provisions of the California Civil Code, have the right to request from companies conducting business in California a list of all third parties to which the company has disclosed certain personally identifiable information as defined under California law during the preceding year for third party direct marketing purposes. You are limited to one request per calendar year. In your request, please attest to the fact that you are a California resident and provide a current California address for our response. You may request the information in writing at Perfecting Pizza, LLC, ATTN: LEGAL, P.O. BOX 282 Fort Mill, SC 29716 and email@example.com.
Children’s Online Privacy Protection Act Compliance
We are in compliance with the requirements of COPPA (Childrens Online Privacy Protection Act), we do not collect any information from anyone under thirteen (13) years of age. Our Application, products and services are all directed to people who are at least thirteen (13) years old or older.
Keeping Your Information Secure
We have implemented security measures we consider reasonable and appropriate to protect against the loss, misuse and alteration of the information under our control. Please be advised, however, that while we strive to protect your personally identifiable information and privacy, we cannot guarantee or warrant the security of any information you disclose or transmit to us online and are not responsible for the theft, destruction, or inadvertent disclosure of your personally identifiable information. In the unfortunate event that your “personally identifiable information” (as the term or similar terms are defined by any Applicable law requiring notice upon a security breach) is compromised, we may notify you by email (at our sole and absolute discretion) to the last email address you have provided us in the most expedient time reasonable under the circumstances; provided, however, delays in notification may occur while we take necessary measures to determine the scope of the breach and restore reasonable integrity to the system as well as for the legitimate needs of law enforcement if notification would impede a criminal investigation. From time to time we evaluate new technology for protecting information, and when Appropriate, we upgrade our information security systems.
Contact and Opt-Out Information
Legal Basis for Processing Personal Data under GDPR
We may process Personal Data under the following conditions:
- Consent: You have given Your consent for processing Personal Data for one or more specific purposes.
- Performance of a contract: Provision of Personal Data is necessary for the performance of an agreement with You and/or for any pre-contractual obligations thereof.
- Legal obligations: Processing Personal Data is necessary for compliance with a legal obligation to which the Company is subject.
- Vital interests: Processing Personal Data is necessary in order to protect Your vital interests or of another natural person.
- Public interests: Processing Personal Data is related to a task that is carried out in the public interest or in the exercise of official authority vested in the Company.
- Legitimate interests: Processing Personal Data is necessary for the purposes of the legitimate interests pursued by the Company.
In any case, the Company will gladly help to clarify the specific legal basis that applies to the processing, and in particular whether the provision of Personal Data is a statutory or contractual requirement, or a requirement necessary to enter into a contract.
Your Rights under the GDPR
The Company undertakes to respect the confidentiality of Your Personal Data and to guarantee You can exercise Your rights.
- Request access to Your Personal Data. The right to access, update or delete the information We have on You. Whenever made possible, you can access, update or request deletion of Your Personal Data directly within Your account settings section. If you are unable to perform these actions yourself, please contact Us to assist You. This also enables You to receive a copy of the Personal Data We hold about You.
- Request correction of the Personal Data that We hold about You. You have the right to to have any incomplete or inaccurate information We hold about You corrected.
- Object to processing of Your Personal Data. This right exists where We are relying on a legitimate interest as the legal basis for Our processing and there is something about Your particular situation, which makes You want to object to our processing of Your Personal Data on this ground. You also have the right to object where We are processing Your Personal Data for direct marketing purposes.
- Request erasure of Your Personal Data. You have the right to ask Us to delete or remove Personal Data when there is no good reason for Us to continue processing it.
- Request the transfer of Your Personal Data. We will provide to You, or to a third-party You have chosen, Your Personal Data in a structured, commonly used, machine-readable format. Please note that this right only applies to automated information which You initially provided consent for Us to use or where We used the information to perform a contract with You.
- Withdraw Your consent. You have the right to withdraw Your consent on using your Personal Data. If You withdraw Your consent, We may not be able to provide You with access to certain specific functionalities of the Service.
Exercising of Your GDPR Data Protection Rights
You may exercise Your rights of access, rectification, cancellation and opposition by contacting Us. Please note that we may ask You to verify Your identity before responding to such requests. If You make a request, We will try our best to respond to You as soon as possible. You have the right to complain to a Data Protection Authority about Our collection and use of Your Personal Data. For more information, if You are in the European Economic Area (EEA), please contact Your local data protection authority in the EEA.
This Agreement was last revised on January 1, 2021.
END USER LICENSE AGREEMENT
PERFECT FOOD COST
Perfect Food Cost is software in the format of a React Native program for use on handheld mobile devices (the “Application”) owned and operated by Perfecting Pizza, LLC (the “Company”), a limited liability company organized and existing under the laws of the Commonwealth of Pennsylvania with a physical address of P.O. BOX 282 Fort Mill, SC 29716. The Company also maintains and operates http://www.perfectingpizza.com (the “Website”).
Please read this END USER LICENSE AGREEMENT (THIS “AGREEMENT”) carefully before using the Application. By accessing and/or using the Application (other than to read This Agreement for the first time), you are agreeing to comply with this Agreement, which may change from time to time without notice to you, as set forth Herein below.
BY SUBMITTING USER-GENERATED CONTENT—INCLUDING ANY TRADE SECRET (INCLUDING RECIPES, ETC.)—TO THIS APPLICATION, YOU AGREE THAT IT MAY BE VIEWED AND ACCESSED BY THE COMPANY AND/OR ITS AFFILIATE, GRANDE CHEESE COMPANY. THERE SHALL BE NO GUARANTEE OF CONFIDENTIALITY FOR SUCH USER-GENERATED CONTENT AS AMONG THE COMPANY AND GRANDE CHEESE COMPANY. GRANDE CHEESE COMPANY MAY UTILIZE SAID USER-GENERATED CONTENT FOR ITS INTERNAL BUSINESS PURPOSES. BY UTILIZING THE APPLICATION, YOU ACKNOWLEDGE AND AUTHORIZE SUCH USE OF YOUR USER-GENERATED CONTENT BY THE COMPANY AND/OR GRANDE CHEESE COMPANY. NOTWITHSTANDING THE FOREGOING, THIS AGREEMENT CONTAINS A RELEASE WHEREIN YOU SHALL FOREGO ANY RIGHT TO BRING A LEGAL CLAIM AGAINST THE COMPANY FOR ANY PERCEIVED VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT ASSOCIATED WITH ANY USER-GENERATED CONTENT.
THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTIONS 17 AND 19, BELOW.
You are hereby, after usage of said Application, entering into and agreeing to be bound by This Agreement.
If you do not agree or wish to be bound by THIS AGREEMENT, discontinue your usage of the Application and remove it from your mobile device.
1. General and Definitions.
The term “Application,” in addition to the definition set forth above, shall include to mean, and refer to the following:
- the mobile software Application accompanying this Agreement, including, without limitation, any software code, algorithms, scripts, interfaces, graphics, displays, text, content, documentation, APIs, and other components;
- any updates, modifications or enhancements to the items listed in subsection (i) regardless of whether the same are accessible by You or not; and
- any specific website the Application directs you to via any browser located on your Mobile Device, if the same is maintained by the Company, or its affiliates.
“Admin Panel” shall mean the web-based platform inaccessible to Users through which the Company and/or its affiliates, including Grande Cheese Company, are able to view, modify and/or manage the Application, including User-Generated Content, Information (as those terms are defined herein below) and other user-submitted information, data and/or information.
“Mobile Device” shall mean any handheld computing device capable of operating the Application, meaning and intending to include the iPhone, iPod Touch, iPad, iWatch, and such other similar products by App, LG G6, Google Pixel, LG V30, Samsung Galaxy S8 Edge, and such other similar products that run the operating system Android by Google and/or iOS by Apple.
“User” shall mean, in addition to the definition above, and not in derogation thereof, any individual who downloads, installs, and uses the Application in any manner on any Mobile Device, whatsoever, including, but not limited to, You, and other individuals as context may require.
1.1 License Grant
The Company grants You a revocable, worldwide, non-exclusive, non-transferable, personal, royalty-free, limited license to install and use the Application and its features—including but not limited to “Account,” “Profiles,” “Menu Items,” “Ingredients,” “Batch Recipes,” “Categories,” “Suppliers,” “Coupon Builder,” “Video Library,” and/or “Search” (as amended) (collectively, the “Features”)—across all of your compatible Mobile Devices , but for active use on a single Mobile Device controlled by You at one time, and to access and use the Application on such Mobile Device strictly in accordance with this Agreement, the Usage Rules, and any service agreement associated with your Mobile Device (“Related Agreements”), solely for your own purposes. All rights not expressly granted to You are reserved by the Company, its affiliates, and licensors. Your right and license shall allow You to use the Application on any Mobile Device that You own or control, and as permitted by a Platform’s Usage Rules set forth in applicable Terms of Service.
You may not access the Application if you are a direct competitor of the Company, except with the Company’s prior written consent. In addition, you may not access the Application for the purposes of monitoring its availability, performance, functionality, or for any other benchmarking or competitive purpose.
You agree that at all times while using the Application that you will comply with all Applicable Federal, State, international, and local laws including, without limitation, copyright law. Except as expressly permitted in this Agreement, You may not use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit the Application for any purpose, whatsoever, without obtaining prior written consent from the Company, any third-party, including a Platform and other Vendors, or other Users in the case of User-Generated Content, as set forth hereinafter, who is the respective owner of such content. You hereby expressly acknowledge that you do not acquire any ownership rights or interests of any nature by way of any usage of the Application, and that the Company may revoke this license without any notice to You whatsoever, and thereby your rights to continued usage of the Application.
1.2 Restrictions on Use.
The Application is for the commercial use of Users only, unless otherwise set forth herein. Illegal and/or unauthorized uses of the Application may be investigated, and appropriate legal action will be taken, including without limitation, civil actions, criminal prosecution, and injunctive remedies. Use of the Application may be revoked at any time, as determined in the Company’s sole discretion.
Any unauthorized use of the Application or publication of its contents, or other distribution or public exhibition of the materials provided on the Application, in whole or in part, is strictly prohibited as set forth herein.
You shall use the Application in strict accordance with this Agreement, and the Terms of the Related Agreements, and shall not do any of the following, in whole or in part, or in any way engage in any behavior or actions similar in intent to those which follow:
- You must not post nude, violent, partially nude, unlawful, pornographic, infringing, hateful, sexually suggestive or discriminatory photos or other content through the Application.
- You shall not stalk, defame, bully, harass, threaten, impersonate, intimidate or abuse, people or entities, and you should not post confidential or private information through the Application, including, your or any third party’s credit card details, alternate national identity numbers, or social security, private phone numbers or private email addresses.
- Remove, alter, obscure, cover, or distort any proprietary notice, including notices of copyright, trademark, or the like, on the Application whether said notice is of the Company, its affiliates, a Platform, Vendors, other Users, or any other party;
- Circumvent, disable or otherwise interfere with security-related features of the Application including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the, use of the Application;
- Use an automatic device (such as a robot or spider) or manual process to copy or scrape the Application for any purpose without the express written permission of the Company. Notwithstanding the foregoing, the Company grants public search engine operators permission to use automatic devices (such as robots or spiders) to copy the Application for the sole purpose of creating (and only to the extent necessary to create) to include the Application only—not its content—in search results that are available to the public. The Company reserves the right to revoke this permission (generally or specifically) at any time without notice;
- Attempt to or interfere with the proper working of the Application or impair, purposely overburden, or disable the same;
- Decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the whole, or any portion, of the Application;
- Hack the Application, attempt to introduce and/or elicit a DDOS (denial of service), introduce any malware, spam or any code or content with a malicious intent to the Application or the Perfecting Pizza digital ecosystem;
- Use network-monitoring software to determine architecture of or extract usage data from the Application;
- Encourage, or engage in, conduct that violates any local, state, Federal, or international law, either civil or criminal, or impersonate another user, person, or entity (e.g., accessing another member’s account without permission, etc.);
- Violate U.S. export laws, including, without limitation, Export Administration Act, the Export Administration Regulations administered by the Department of Commerce and/or the International Traffic in Arms administered by the Department of State;
- Engage in any conduct that restricts or inhibits any other User from using or enjoying the Application;
- Use the Application to encourage, or engage in, conduct taking place offline or on other third-party Applications that violates any local, state, Federal, or international law, either civil or criminal;
- Fail to remove, eliminate, resolve and/or take down any content allegedly infringing of a third-party’s rights of any kind;
- Use the Application for any purpose for which it is not designed or intended;
- Install, use, or permit the Application to be in active simultaneous use on more than one Mobile Device at a time, or on any other Mobile Device, unless otherwise permitted, or required to be permitted, by a Platform;
- Make the Application available over a network or other environment permitting access or use by multiple Mobile Devices or Users at the same time, unless otherwise permitted, or required to be permitted, by a Platform;
- Use the Application for creating a product, service, or software that is directly or indirectly competitive with, or in any way a substitute for any service, product, or software, in whole or in part, of the Company, whether or not such functionality is incorporated into the Application or not;
- Use the Application to send automated queries to any website, or to send any unsolicited spam or email; and/or
- Use any proprietary information or interfaces of the Company or a Platform, or other intellectual property of the Company or a Platform in the design, development, manufacture, licensing, or distribution of any Application, website, accessories, devices, or the like for use with or in substitution of the Application.
You agree to cooperate fully with the Company to investigate any suspected or actual activity that is in breach of this Agreement.
This Agreement and rights hereby established by this Agreement shall be effective until terminated. The Company may terminate said license and/or right and/or this Agreement with, or without any notice to You whatsoever.
The Company may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this Agreement, the Application, Your usage and access of the Application, and any rights or license rights afforded to You hereunder with or without prior notice. If you fail to renew or fail to timely renew Your paid membership registered with www.perfectingpizza.com You will lose access to the Application and the Company may delete any information or data associated therewith. Furthermore, if You fail to comply with any terms and conditions of this Agreement, then this Agreement and any rights granted to You or license hereby granted to You shall terminate automatically, without any notice or other action by Company. Upon the termination of this Agreement, You shall cease all use of the Application and uninstall the Application.
You hereby acknowledge that This Agreement is formed between You and the Company only, and not with a Platform. The Company, and not a Platform, is responsible, as set forth herein, for the Application. Any provisions of This Agreement that are less restrictive than a Platform’s Usage Rules set forth for so-called Licensed Applications in the iTunes App Store and/or Google Play Terms of Service shall be superseded by the more restrictive terms.
3. User Registration.
Through the Application and once registered for a paid membership Account at www.perfectingpizza.com, You may be able to become a member of a certain class of user that may allow access to and/or use some features or functionality of the Application that may otherwise be restricted, including, but not limited to the Features. In order for Your access to said Features or functionality to be accessible, you must first register for an account, or “Profile” as hereinafter defined.
IF YOU ARE UNDER THE AGE OF EIGHTEEN (18), THEN YOU ARE NOT PERMITTED TO REGISTER AS A USER, FOR A PROFILE, OR OTHERWISE SUBMIT PERSONAL INFORMATION TO THIS APPLICATION OR TO THE COMPANY. YOU hereby confirm that you are at least EIGHTEEN (18) years old of age. You hereby confirm that you are legally able to enter into a contract. You acknowledge that your ability to access and use the APPLICATION is conditioned upon the truthfulness of the information you provide, INCLUDING regarding your age, and that THE COMPANY IS relying upon this certification in order to interact with you and provide the APPLICATION.
You hereby certify and hold the Company harmless that your participation in and access of this Application, or in any way your usage of the Company’s services, that you are eighteen (18) years of age, or older. Furthermore, you represent and warrant that you have the right, authority and capacity to enter into this Agreement, and that you are not a person barred from receiving services under the laws of the United States or other Applicable jurisdiction. You further agree to provide true, accurate, current and complete information about yourself on the Services registration form. If the Company suspects that any information provided is untrue, inaccurate, outdated or incomplete, the Company has the right to refuse any and all current or future use of the Application (or any purchase thereof), including purchase of any of our services.
3.1 User Account(s) / “Accounts.”
- A. Through the Features, you may be able to become a member of a certain class of user that may be allowed access to and/or use some of the Features for purposes of viewing, managing and/or organizing information. Such a personalized registered account shall be referred to as an “Account.” You may obtain an Account only by registering for a paid membership on the website www.perfectingpizza.com and agreeing to the accompanying Subscription Agreement which is hereby incorporated as if set forth fully herein. If you are under the age of eighteen (18) then you are not permitted to register a Profile or otherwise submit personal information to the Application.
- B. To register an Account, you shall provide true, accurate and complete registration information, including your birth date and/or credentials relating to your existing Apple, Facebook and/or Google accounts, and, if such information changes, you will promptly update the relevant registration information. During registration, you will either confirm or input identifying information, which may permit you access to certain areas of the Application not available to non-registered users. You are responsible for safeguarding and maintaining the confidentiality of your Account. You are solely responsible for the activity that occurs under your Account, whether or not you have authorized the activity. You agree to promptly provide us with detailed written notice thereof to firstname.lastname@example.org of any breach of security or unauthorized use of your Account.
- C. Menu Items. The Application enables an inventory of menu items where Users may input the ingredients that comprise each one, and the commercial attributes of each, including, but not limited to cost, supplier(s) and other characteristics. BY SUBMITTING USER-GENERATED CONTENT—INCLUDING ANY TRADE SECRET (INCLUDING RECIPES, ETC.)—VIA THIS FEATURE, YOU AGREE THAT IT MAY BE VIEWED AND ACCESSED BY THE COMPANY AND/OR ITS AFFILIATE, GRANDE CHEESE COMPANY. THERE SHALL BE NO GUARANTEE OF CONFIDENTIALITY FOR SUCH USER-GENERATED CONTENT AS AMONG THE COMPANY AND GRANDE CHEESE COMPANY. GRANDE CHEESE COMPANY MAY UTILIZE SAID USER-GENERATED CONTENT FOR ITS INTERNAL BUSINESS PURPOSES. BY UTILIZING THE APPLICATION, YOU ACKNOWLEDGE AND AUTHORIZE SUCH USE OF YOUR USER-GENERATED CONTENT BY THE COMPANY AND/OR GRANDE CHEESE COMPANY. NOTWITHSTANDING THE FOREGOING, YOU HEREBY RELEASE ANY AND ALL LEGAL CLAIMS AGAINST THE COMPANY FOR ANY PERCEIVED VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT ASSOCIATED WITH ANY USER-GENERATED CONTENT, INCLUDING TRADE SECRET(S).
- D. Coupon Builder. Registered Users may through an Account utilize a Feature which generates an analysis of prospective Menu Item discounts based on the financial parameters of a given Menu Item.
- E. Future and/or Deletion of Features. The Company reserves the right to implement novel Features or to disable and/or delete existing Features without notice to You.
4. Intellectual Property Rights.
4.1 Rights to the Application.
You acknowledge and agree that the Application, and all copyrights, patents, trademarks, trade secrets, and other intellectual property rights associated therewith are, and shall remain, the property of the Company, and that the content, and all functionality related incidentally an/or indirectly thereto, and any derivative works or enhancements of the same, including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, and interactive features shall remain the property of the Company, its affiliates, a Platform, Vendors, or other Users in the case of User-Generated Content, as the case may be. Except for the limited use rights granted to You in this Agreement, you shall not acquire any right, title, or interest in the Application, including intellectual property rights, and that no such rights, title, or interest shall be derived by you in or to the Application by implication, estoppel, or any other legal theory. Any rights not specifically set forth herein are expressly reserved by the Company.
4.2 Third-Party Software.
The Application may utilize or include third-party software that is subject to open source and third-party license terms (“Third-Party Software”), including but not limited to functionalities of payment processing, YouTube (or other video platform(s)) and/or other functionalities, including APIs. You acknowledge and agree that Your right to use such Third-Party Software as part of the Application is subject to, and governed by, the terms and conditions of the open source or third-party license Applicable to such Third-Party Software, including, without limitation, any Applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between This Agreement and the terms of such open source or third-party licenses, the terms of the open source or third-party licenses shall control with regard to Your use of the relevant Third-Party Software, but in no way shall be Applicable to the balance of the Application not so thereby governed. In no event, shall the Application or components thereof be deemed to be “open source” or “publicly available” software as those terms may be in common usage in similar scenarios.
4.3 Third-Party Payment Processing.
The processing of payments, if available on the Application, made on the Application may be handled by a third-party, such as Stripe, Inc., or otherwise. Said third-party payment processor may have its own terms of service or other agreements with which you must agree before making payment online and/or may be agreeing to tacitly by making and/or receiving payment online. By accepting this Agreement, you specifically agree that the processing of payments is handled by a third-party other than the Company and is subject to the Indemnifications and Limitation of Liability reflected below.
4.4 Company’s Marks.
You are not authorized to use the Company trademarks in any advertising, publicity or in any other commercial manner without the prior written consent of Company, which may be withheld for any or no reason.
4.5 Infringement Acknowledgement.
You and Company acknowledge and agree that, in the event of a third-party claim that the Application or Your possession or use of the Application infringes any third-party’s intellectual property and/or any other rights, You (and not Company nor a Platform) will be responsible for the investigation, defense, settlement, and/or discharge of any such claim of intellectual property infringement. A Platform shall expressly be waived hereby of any and all such liability. You will, however, promptly notify the Company in writing of such a claim.
5. Services and Account.
The Company agrees to provide you with services for the specific edition of the Application provided, developed, operated, and/or maintained by the Company, and accessible via Your Mobile Device or another designated platform, or ancillary online or offline products and services provided to You by Company as related specifically to Your use of the Application, to which you are being granted access under this Agreement.
You may be required to establish an account, for which access may or may not be granted via ancillary online or offline products and services as specifically related to the Application. Any access to said account or other services provided on any device other than the Mobile Device for which the Application is intended, including, but not limited to the Website, shall not in any way be guaranteed. No rights shall be given to You in furtherance of this Agreement to such ancillary products or services, and the terms of this Agreement shall be the full extent of the Agreement between You and the Company. Such ancillary products and services are solely for Your convenience, and You do not gain any additional rights, or remedies thereby. The Company may, in its sole discretion, and without notice whatsoever, discontinue, alter, or change in whole or in part said ancillary services or products.
6. Restriction on Transfer.
You may not rent, lease, lend, sublicense or transfer the Application, Account, this Agreement, or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect, and the Company expressly reserves all rights that it may have hereunder or otherwise.
7. Use of Information.
7.1 Consent to Use Information.
You hereby authorize and consent to the collection, storage and use, by the Company and its affiliates, partners and agents, including a Platform and the Company’s Vendors, of any information and data related to or derived from Your use of the Application, and any information or data that You provide to Company and its affiliates, partners and licensors, including a Platform and the Company’s Vendors (“Information”). Without limiting the generality of the foregoing, the Information shall include, without limitation, the following types of information and data, in an aggregate (not user level) form: search requests, search results, patterns, data and suggestions based on user actions. ADDITIONALLY, BY SUBMITTING INFORMATION—INCLUDING ANY TRADE SECRET (INCLUDING RECIPES, ETC.)—VIA THE APPLICATION, YOU AGREE THAT IT MAY BE VIEWED AND ACCESSED BY THE COMPANY AND/OR ITS AFFILIATE, GRANDE CHEESE COMPANY. THERE SHALL BE NO GUARANTEE OF CONFIDENTIALITY FOR SUCH INFORMATION AS AMONG THE COMPANY AND GRANDE CHEESE COMPANY. GRANDE CHEESE COMPANY MAY UTILIZE SAID INFORMATION CONTENT FOR ITS INTERNAL BUSINESS PURPOSES. BY UTILIZING THE APPLICATION, YOU ACKNOWLEDGE AND AUTHORIZE SUCH USE OF YOUR INFORMATION BY THE COMPANY AND/OR GRANDE CHEESE COMPANY. NOTWITHSTANDING THE FOREGOING, YOU HEREBY RELEASE ANY AND ALL LEGAL CLAIMS AGAINST THE COMPANY FOR ANY PERCEIVED VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT ASSOCIATED WITH ANY INFORMATION, INCLUDING TRADE SECRET(S). The Information will be treated as being non-confidential and nonproprietary, and the Company assumes no obligation to protect confidential or proprietary information (other than personally identifiable information) from disclosure and will be free to reproduce, use, and distribute the Information to others without restriction. The Company will also be free to use any ideas, concepts, know-how or techniques contained in the Information for any purpose whatsoever including, without limitation, developing, manufacturing and marketing products and services incorporating such Information. The Company and/or Grande Cheese Company may use your personal information to contact you directly with prospective transactions if the Company believes it may be in possession of information about prospective deals that may be of interest to you.
8. User-Generated Content.
You shall not submit any User-Generated Content that is not Yours and is protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, proprietary or other Third-Party right without the express permission of the owner of the respective right. YOU, AND NOT THE COMPANY OR ANY PLATFORM, ARE SOLELY LIABLE FOR ANY DAMAGE RESULTING FROM YOUR FAILURE, WHETHER INTENTIONAL OR NOT, TO OBTAIN SUCH PERMISSION OR FROM ANY OTHER HARM RESULTING FROM USER-GENERATED CONTENT THAT YOU SUBMIT.
You represent, warrant, and covenant that you will not submit any User-Generated Content that:
- Violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, proprietary or other third party right of any person or entity;
- Impersonates another or is unlawful, threatening, abusive, harassing, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable;
- Encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;
- Unnecessarily includes personal information;
- Contains a formula, instruction, or advice that could cause harm or injury;
- The licensed use by the Company hereunder would result in us having any obligation or liability to any party;
- Is intentionally misleading or fraudulent; or
- Violates any of the exclusions to use set forth herein.
Any conduct by a User that in our sole discretion restricts or inhibits any other User from using or enjoying the Application will not be permitted.
THE COMPANY RESERVES THE RIGHT TO DELETE, DISABLE OR OTHERWISE ELIMINATE FROM THE APPLICATION ANY USER-GENERATED CONTENT THAT THE COMPANY DEEMS VIOLATIVE OF THIS AGREEMENT AND/OR ANY RULE OF LAW, REGULATION OR PROTOCOL, IN ITS SOLE DISCRETION.
The Company has the right, but not the obligation, to monitor all User-Generated Content. The Company has no obligation to post, maintain or otherwise make use of User-Generated Content and does not guarantee distribution of User-Generated Content. The Company may discontinue operation of the Application and/or User-Generated Content, or Your use of the Application and/or User-Generated Content, in either case in whole or in part, in its sole discretion. You have no right to maintain or access your User-Generated Content on the Application and the Company has no obligation to return your User-Generated Content or otherwise make it available to You.
8.1 Digital Communication.
THE COMPANY IS NOT RESPONSIBLE FOR COMMUNICATION INITIATED BY USERS–REGARDLESS OF THE CAPACITY IN WHICH THEY COMMUNICATE–THROUGH THE WEBSITE AND/OR APPLICATION.
The rights granted by You hereunder may not be terminated, revoked or rescinded and are not subject to reversion. If You become aware that User-Generated Content You have submitted includes any material for which You lack the unrestricted right to grant us the rights set forth above without obligations or liability to any party, You agree to promptly provide us with detailed written notice thereof to Perfecting Pizza, LLC, ATTN: LEGAL, P.O. BOX 282 Fort Mill, SC 29716 and email@example.com.
The Company strives to keep User-Generated Content secure but cannot guarantee that it will be successful at doing so, given the nature of the Internet. Accordingly, You acknowledge that You bear sole responsibility for adequate security, protection, and backup of User-Generated Content. The Company strongly encourages You, where available and Appropriate, to: (a) use encryption technology to protect User-Generated Content from unauthorized access; (b) routinely archive User-Generated Content; (c) keep Your password and access details secure; and (d) keep Your User-Generated Content or any software that you use or run with the Application and/or Applications current with the latest security patches or updates. WE SHALL HAVE NO LIABILITY TO YOU FOR ANY UNAUTHORIZED ACCESS OR USE, CORRUPTION, DELETION, DESTRUCTION, OR LOSS OF ANY ACCOUNT AND/OR USER-GENERATED CONTENT.
In the event you elect, in connection with the Application to communicate to the Company suggestions for improvements to the Application, or to any other property of the Company, intellectual or otherwise (collectively, “Feedback”), the Company shall own all right, title, and interest in and to the same, even if You have designated the Feedback as confidential, and the Company shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title, and interest in and to the Feedback to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback.
In keeping with our efforts to maintain Your privacy, the Company will not disclose User-Generated Content to any governmental agency, body and/or department unless lawfully sought by presentation to us of a valid Subpoena, warrant or other such document.
9. Intentionally deleted.
10. Third-Party Content and Services.
You acknowledge that the Application may permit access to products, services, websites, advertisements, promotions, recommendations, advice, information, and materials created and provided by government agencies, public record repositories, advertisers, publishers, content partners, marketing agents, vendors, blockchain, and other third parties, including in the form of videos, “Ads” and/or APIs offered by such parties or other related vendors (“Third-Party Content and Services”), which may or may not include a Platform, and/or the Vendors.
You acknowledge that the Company does not investigate, monitor, represent or endorse the Third-Party Content and Services (including any third-party websites, or other services, available through the Application). Furthermore, Your access to and use of the Third-Party Content and Services is at Your sole discretion and risk, and Company and its affiliates, partners, suppliers and licensors, including a Platform, shall have no liability to You arising out of or in connection with Your access to and use of the Third-Party Content and Services. The Company hereby disclaims any representation, warranty, or guaranty regarding the Third-Party Content and Services, whether express, implied, or statutory, including, without limitation, the implied warranties of merchantability, WARRANTIES OF HABITABILITY or fitness for a particular purpose, and any representation, warranty, or guaranty regarding the availability, quality, reliability, features, AppropriateNESSs, accuracy, completeness, or legality of the Third-Party Content and Services. BY REGISTERING AN ACCOUNT, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY RECEIVE THIRD-PARTY CONTENT AND SERVICES FROM (AN)OTHER USER(S), AND EXPRESSLY WAIVE THE FOREGOING WARRANTIES AS THEY RELATE TO YOUR RECEIPT OF SAME.
10.3 Third-Party Terms of Service/Other Agreement(s).
You acknowledge and agree that Your access to and use of the Third-Party Content and Services and any correspondence or business dealings between You and any Third-Party located using the Application are governed by and require Your acceptance of the terms of service of such Third-Party, including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein, and that the Company and a Platform are not a party or in anyway bound by the same, nor does the Company nor a Platform bear any responsibility or liability related thereto. Furthermore, You acknowledge and agree that the Third-Party Content and Services and any related third-party terms of service are subject to change by the Applicable Third-Party at its sole discretion and without any notice. You assume all risks arising out of or resulting from your transaction of business over the Internet and with any Third-Party, and you agree that Company and its affiliates, partners, suppliers and licensors, including, but not limited to a Platform and the Vendors, are not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers. Furthermore, You acknowledge and agree that You are not being granted a license to: (i) the Third-Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third-Party Content and Services; or (iii) any copyright, trademark, patent or other intellectual property right in the Third-Party Content or Services or any products, services, processes or technology described or offered therein.
10.4 Reliance on Information, third-Party Product and Services.
In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of the Application, information stored on or accessible by the Application, and Third-Party Content and Services. Under no circumstances will the Company or a Platform be liable for any loss, claim, or damage caused by your reliance of the Application, information stored on or accessible by the Application, and Third-Party Content and Services.
You acknowledge and agree that the provision of access to any Third-Party Content and Service shall not constitute or imply any endorsement by the Company or its affiliates, including a Platform, of such Third-Party Content and Services. The Company reserves the right to restrict or deny access to any Third-Party Content and Services otherwise accessible through the Application, although the Company has no obligation to restrict or deny access even if requested by You. The Company does not, nor shall any actions hereinafter taken, except for any written material that expressly waives this provision executed by the Company, endorse, warrant, or guarantee, nor shall the Company be responsible in any way for, the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on the Application by anyone other than authorized employees of the Company, or spokespersons acting in their official capacities with actual agency authority.
10.6 Inappropriate Materials.
You understand that by accessing and using the Third-Party Content and Services that You may encounter information, materials and subject matter: (i) that You or others may deem offensive, indecent, or objectionable; (ii) which may or may not be identified as having explicit language; and (iii) that automatically and unintentionally appears in search results, as a link or reference to objectionable material. Notwithstanding the foregoing, You agree to use the Third-Party Content and Services at Your sole risk and that Company and its affiliates, partners, suppliers and licensors shall have no liability to You for information, material or subject matter that is found to be offensive, indecent, or objectionable.
10.7 Use of Third-Party Content and Services.
You agree that the Third-Party Content and Services contain proprietary information and material that is owned by Company and its affiliates, partners, suppliers and licensors and is protected by applicable intellectual property and other laws, including, without limitation, pursuant to copyright, and that You will not use such proprietary information or materials in any way whatsoever except for permitted use of the Third-Party Content and Services. No portion of the Third-Party Content and Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Third-Party Content and Services, in any manner, and You shall not exploit the Third-Party Content and Services in any unauthorized way whatsoever, including, without limitation. You agree that You will not use any Third-Party Content and Services in a manner that would infringe or violate the rights of any other party, and that Company is not in any way responsible for any such use by You.
11. User Liability.
11.1 Liability of Users.
You are solely responsible for any and all complaints, claims, causes of action, and/or lawsuits by anyone caused by or arising out of Your breach of this Agreement and/or Your use of the Application and/or User-Generated Content and/or Third-Party Products and Services. You shall indemnify, defend, reimburse, and hold harmless the Company and a Platform for any and all such liability to the extent permitted by law and in accordance with this Agreement.
11.2 Actions by the Company.
If the Company has reason to believe that You have engaged in any activities restricted by this Agreement, or any activities similar to the spirit and intent of such restrictions, or are in derogation of any responsibilities that You may have hereunder, then the Company may take various actions to protect the Company, other Users, a Platform, and other third-parties’ claims, fees, fines, penalties, and any other liability. The actions the Company may take include, but are not limited to the following, and the Company does not hereby waive any other rights or remedies it may have:
- The Company may terminate, close, suspend, or limit Your access to the Application or Account in whole or in part;
- The Company may contact Third-Parties, Your bank or credit card issuer, other Users, and/or law enforcement, as deemed appropriate in the Company’s sole discretion;
- The Company may, without notice to You, update inaccurate information You provided;
- The Company may refuse to provide an account, access to the Application, or Account or any other Application or services to You in the future; and/or
- The Company may take legal action against you.
11.3 Actions by other Third-Parties.
You are responsible for Third-Party complaints caused by or arising out of your breach of this Agreement, INCLUDING FROM OTHER USERS OF THE APPLICATION, as set forth herein, and/or Your use of the Application and/or User-Generated Content. You agree to indemnify, reimburse, defend, hold harmless the Company and a Platform for any and all such liability.
Company does not warrant that the Application will be compatible or interoperable with Your Mobile Device or any other piece of hardware, software, equipment or device installed on or used in connection with your Mobile Device. Furthermore, You acknowledge that compatibility and interoperability problems can cause the performance of your Mobile Device to diminish or fail completely, and may result in permanent the damage to Your Mobile Device, loss of the data located on Your Mobile Device, and corruption of the software and files located on Your Mobile Device. You acknowledge and agree that Company and its affiliates, partners, suppliers and licensors shall have no liability to You for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
Compatible versions of operating systems and compatible devices supported by the Application will be available for review on the iTunes App Store and/or Google Play page for the Company and/or the Application.
13. Product Claims.
You acknowledge that You (not Company or a Platform) are responsible for addressing any Third-Party claims relating to Your use or possession of the Application, and agree to notify the Company of any third-Party claims relating to the Application of which You become aware. Furthermore, You hereby release the Company and ALL PlatformS from any liability resulting from Your use or possession of the Application, including, without limitation, the following: (i) any product liability claims; (ii) any claim that the Application fails to conform to any Applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation.
YOU AGREE TO RELEASE, INDEMNIFY, DEFEND, AND HOLD HARMLESS THE COMPANY, AND ITS EMPLOYEES, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES, INCLUDING ANY PLATFORM, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, LOSSES, DAMAGES, OBLIGATIONS, COSTS AND EXPENSES (INCLUDING ACTUAL ATTORNEYS’ FEES AND COSTS INCURRED) ARISING OUT OF, RELATED TO, OR THAT MAY ARISE IN CONNECTION WITH:
- YOUR ACCESS TO OR USE OF THE APPLICATION, THIRD-PARTY CONTENT AND SERVICES AND/OR ACCOUNT AND/OR WEBSITE AND/OR YOUR RELIANCE ON ANY INFORMATION REFLECTED THEREIN;
- USER-GENERATED CONTENT AND/OR INFORMATION PROVIDED BY YOU OR THROUGH USE OF YOUR ACCOUNT AND/OR ACCOUNT;
- ANY ACTUAL OR ALLEGED VIOLATION OR BREACH BY YOU OF THIS AGREEMENT;
- ANY ACTUAL OR ALLEGED BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT THAT YOU HAVE MADE TO THE COMPANY;
- YOUR ACTS OR OMISSIONS;
- LOSS OF OR DAMAGE TO USER-GENERATED CONTENT FOR ANY REASON.
YOU AGREE TO COOPERATE FULLY WITH THE COMPANY AND ANY PLATFORM IN THE DEFENSE OF ANY CLAIM THAT IS THE SUBJECT OF YOUR OBLIGATIONS HEREUNDER, AND YOU HEREBY ACCEPT THE PROVISIONS OF THIS AGREEMENT IN FULL, INCLUDING SPECIFICALLY YOUR AGREEMENTS IN SECTION 17 REGARDING SELECTION OF COUNSEL.
YOU EXPRESSLY AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK. THE APPLICATION AND ANY SERVICES OR CONTENT RELATED THERETO, INCLUDING THIRD-PARTY CONTENT AND SERVICES, AND USER-GENERATED CONTENT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES INCLUDING ANY:
- WARRANTIES THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS;
- WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE APPLICATION, AND ANY SERVICES OR CONTENT RELATED THERETO, INCLUDING THIRD-PARTY CONTENT AND SERVICES, AND USER-GENERATED CONTENT;
- WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE;
- WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OUR APPLICATION OR ACCESSED THROUGH THE APPLICATION;
- WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION;
- WARRANTIES THAT YOUR USE OF THE APPLICATION WILL BE SECURE OR UNINTERRUPTED; AND
- WARRANTIES THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED.
THE COMPANY SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY ADVICE THAT MAY LEAD TO PHYSICAL DAMAGE, OR INJURY. ANY CONTENT OR SOFTWARE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APPLICATION IS DONE AT YOUR OWN DISCRETION AND RISK. THE COMPANY SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR MOBILE DEVICE, EXCESS BATTERY DRAINAGE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT OR SOFTWARE.
IN THE EVENT OF ANY FAILURE OF THE APPLICATION TO CONFORM TO AN APPLICABLE WARRANTY, IF ANY DOES EXIST, WHICH THIS PARAGRAPH DOES NOT EXPRESSLY CREATE, THEN YOU MAY NOTIFY ANY PLATFORM, AND ANY PLATFORM MAY REFUND THE PURCHASE PRICE OF THE APPLICATION TO YOU; AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY PLATFORM WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS, OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO ANY WARRANTY WILL BE THE COMPANY’S SOLE RESPONSIBILITY, IF AT ALL.
16. Limitation on Liability.
UNDER NO CIRCUMSTANCES SHALL THE COMPANY, AND ITS EMPLOYEES, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES AND THEIR RELATED COMPANIES, INCLUDING, BUT NOT LIMITED TO ANY PLATFORM AND THE VENDORS, BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE APPLICATION, SERVICES, AND/OR THIS AGREEMENT. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE APPLICATION IS TO STOP USING THE APPLICATION. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE APPLICATION OR ANY LINKS ON THE APPLICATION, INCLUDING THOSE PROVIDED BY THE COMPANY, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE APPLICATION OR ANY LINKS ON THE APPLICATION, AND ALSO TO PHYSICAL DAMAGES OR INJURY SUFFERED AS A RESULT OF ANY INFORMATION, ADVICE, OR THE LIKE RECEIVED BY YOU EITHER DIRECTLY OR INDIRECTLY FROM THE APPLICATION. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY CONTENT POSTED BY A THIRD-PARTY, USER-GENERATED CONTENT, OR CONDUCT OF A THIRD-PARTY ON THE APPLICATION, OR ANY OTHER USERS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF THE COMPANY AND ITS EMPLOYEES, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES AND THEIR RELATED COMPANIES EXCEED ONE HUNDRED U.S. DOLLARS ($100.00).
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE APPLICATION, OR IN ANY WAY RELATED TO THIS AGREEMENT, MUST BE FILED WITHIN SIX (6) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM WILL BE FOREVER BARRED.
IN SOME JURISDICTIONS LIMITATIONS OF LIABILITY ARE NOT PERMITTED. IN SUCH JURISDICTIONS, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING, THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
17. Disputes involving the Company.
17.1 Pre-Arbitration Dispute Resolution.
The Company is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing us at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice should be sent to email@example.com (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If the Company and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or the Company may commence an arbitration proceeding.
17.2 Prohibition of Class and Representative Actions and Non-Individualized Relief.
YOU AND THE COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THE COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
In the event that a lawsuit is filed, or a claim is made and demanded, by You, or on Your behalf in any form whatsoever, against a User of the Application, and the Company needs to seek legal counsel for any involvement in the matter, You or Your legal representative shall pay for all legal fees incurred by the Company relating thereto. In such matters, and in any other matter in which You are liable to the Company for payment of attorneys’ fees, as set forth herein, or otherwise permitted by law, nothing contained in this Agreement, including this clause, shall in any way limit the Company’s right to hire legal counsel of its choice.
The Company reserves the right in its sole discretion and at any time to terminate, revoke, or suspend your account and/or block your access to the Application for any reason including, without limitation if you have failed to comply with the letter, intention, or spirit of this Agreement. If you fail to renew or fail to timely renew Your paid membership registered with www.perfectingpizza.com You will lose access to the Application and the Company may delete any information or data associated therewith. You agree that the Company and a Platform shall not be liable to you or any Third-Party for any termination or suspension of your account or for blocking Your access to the Application and/or any User-Generated Content that may reside there that was generated by You. You agree that You have no rights or interests in any information, data, or functionality of the Application, regardless if the same relates to You.
You may terminate your Account at any time by following instructions within the Application to terminate the account. The Company shall have no obligation to retain, preserve or maintain Your User-Generated Content following Your termination of an Account.
Any suspension or termination shall not affect Your obligations to the Company under this Agreement. The provisions of this Agreement, which by their nature survive the suspension or termination of Your account and access of the Application, including, but not limited to the rights and licenses that You have granted hereunder, indemnities, releases, disclaimers, limitations on liability, and provisions related to choice of law.
19. Choice of Law; Mandatory Arbitration.
This Agreement, THE APPLICATION, AND/OR ANY DISPUTE ARISING THEREFROM shall be governed by and construed according to the laws of the COMMONWEALTH OF PENNSYLVANIA. The parties waive any other venue to which either party might be entitled by domicile or otherwise. THE COMPANY makes no representation that materials on the Application are Appropriate or available for use in other locations. With respect to any dispute arising out of or related to this Grant OF A LICENSE, OR THIS AGREEMENT, YOU hereby agree that all disputes arising OR TOUCHING THIS AGREEMENTOR THE APPLICATION shall promptly be submitted to arbitration in COMMONWEALTH OF PENNSYLVANIA, before one arbitrator in accordance with the rules of the American Arbitration Association. The arbitrator may assess costs IN FAVOR OF THE COMPANY ONLY, including ATTORNEYS’ fees ACTUALLY INCURRED, in such manner as the arbitrator deems fair and equitable. The award of the arbitrator shall be final and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction. THE PARTIES HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE ARISING OUT OF This Agreement, THE APPLICATION, AND/OR ANY DISPUTE ARISING THEREFROM.
20.1 Export Control.
You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction(s) in which the Application was obtained. You represent and warrant that You are not: (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You also agree that You will not use the Application for any purposes prohibited by United States law.
20.2 Dissolution, modification, and maintenance.
Modifications to this Agreement or Additional Terms (as hereinafter defined) will be effective immediately upon notice, either by posting on the Application, posting on the Website, posting on the iTunes App Store page for the Company and/or the Application by notification by email or conventional mail, or any other method allowed for by this Agreement. It is your responsibility to review this Agreement and the Application from time to time for any changes or Additional Terms. Your access and use of any the Application following any modification of this Agreement or the provision of Additional Terms will signify your assent to and acceptance of the same. If you object to any subsequent revision to the Terms or to any Additional Terms, You may terminate your Account as provided above or, if You do not have an account, Your only recourse is to immediately discontinue use of the Application. The Company, and not a Platform, is solely responsible for any maintenance or support that may be required regarding the Application, as set forth herein, or required by Applicable law. You hereby acknowledge that a Platform has no obligation whatsoever to furnish any maintenance or support services with respect to the Application.
20.3 Additional Terms.
The Company reserves the right to provide You with operating rules or Additional Terms that may govern Your use of the Application generally, specifically, in whole, in part, or any combination thereof (“Additional Terms”). Any Additional Terms that we may provide to You will be incorporated by reference into this Agreement. To the extent any Additional Terms conflict with this Agreement, the Additional Terms will control.
If any part of This Agreement is held to be legally unenforceable by a court of competent jurisdiction, the remainder may still be enforced as if This Agreement were written without said unenforceable portions.
Except as permitted herein otherwise, You shall not assign this Agreement or any rights or obligations herein without the prior written consent of the Company, and any attempted assignment in contravention of this provision shall be null and void and of no force or effect; however, the Company may assign this Agreement freely without notice to You.
Except as provided herein, the failure to exercise a right or require performance of an obligation under This Agreement shall not effect the Company’s ability to exercise such right or require such performance at any time thereafter, nor shall the waiver of a breach constitute waiver of any subsequent breach.
The section titles or headings in This Agreement are for convenience only and have no legal or contractual effect.
Nothing contained in This Agreement shall be deemed to constitute either party a partner, joint venturer or employee of the other party for any purpose.
20.10 Force Majeure.
The Company shall not be liable for any default, delay in the performance of any of its obligations under this Agreement, or Your inability to access the Application and/or any User-Generated Content if such default or delay is caused, directly or indirectly, by forces beyond the Company’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications (including third party integrations related to social media, server malfunctions, or any other mechanical, electronic, or communication error), power outages, supply shortages or the failure of any Third-Party to perform any commitment relating to the production or delivery of any equipment or material required for the Company to perform its obligations hereunder. The parties have specifically considered force majeure scenarios—including, but not limited to, pandemic, civil unrest and/or governmental action—and agreed that such shall excuse the Company from performance under this Agreement.
20.11 Complaints or Comments.
Any complaints or comments regarding the Application should be directed to the Company at: firstname.lastname@example.org.
21. Third-Party Beneficiary.
You hereby acknowledge and agree that a Platform, and a Platform’s subsidiaries, are third-party beneficiaries of this Agreement, and that, upon Your acceptance of this Agreement, a Platform will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third-party beneficiary thereof.
The Company may give notice by means of a general notice by posting on the Application, posting on the Website, posting on the iTunes App Store page for the Company and/or the Application, by e-mail to your e-mail address on record in the Company’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in the Company’s account information. Such notice shall be deemed to have been given immediately after mailing, emailing or posting. You may give notice to the Company, which shall be deemed given when actually received by the Company, at any time by a written communication delivered by nationally recognized overnight delivery service or first class postage prepaid mail to the Company at the following address: Perfecting Pizza, LLC, ATTN: LEGAL, P.O. BOX 282 Fort Mill, SC 29716 and email@example.com. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
Perfecting Pizza, LLC (the “Company”) and/or www.perfectingpizza.com and/or the Application, and/or the licensors (collectively, the “Website”), the Application, the Company’s licensors, or all of the preceding, respects the intellectual property interests of other parties. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the Company’s copyright agent the written information specified below. Please note that this procedure is exclusively for notifying the Company and its affiliates that your copyrighted material has been infringed:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A copy of the copyrighted work that you claim has been infringed, or a description of the copyrighted work, including the URL (i.e., web page address) of the location where the copyrighted work exists;
- Identification of the URL or other specific location on the Application where the material that you claim is infringing is located;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- Your address, telephone number, and e-mail address.
The Company’s Copyright Agent for notice of claims of copyright infringement on its site can be reached as follows:
LMS Legal LLC
The Grain House
196 West Ashland Street
Philadelphia, PA 18901
phone: (267) 908-5058
fax: (267) 388-3780
Use of Site and Services
We may amend this Agreement from time to time due to changes to the Sites, Products or Services, to account for developments under the law, or for any other commercially reasonable reason. Future performance by us of our obligations under this Agreement is sufficient consideration for any such amendment. Any amendment will only become effective upon notification to you (by email or by posting on our Site) and, if you do not want to agree to any such amendment, you should stop using the Site and the Products and Services and contact us to cancel your account. By checking the box next to the “I agree to the terms and conditions” button on the sign-up page, by logging into your Company Account, by accessing the Sites or by accessing any of the Products and Services, you accept this Agreement on behalf of yourself and any business or organization you represent (collectively “you”).
The Sites and the Products and Services are available only to persons or organizations that can form legally binding contracts under applicable law. Without limiting the foregoing, the Sites and the Products and Services are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Sites, Products, or Services. If you are using the Sites, Products or Services on behalf of an organization, you represent and warrant that you are duly authorized and have the ability to bind such organization by your use of the Sites, Products or Services.
In order to use the Services you may be required to register and create an account (“Account”). During the registration process, you will be required to provide certain information to us and you will establish a username and a password (your “Account Credentials”). You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. We reserve the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, incomplete, or not current. You are responsible for safeguarding your Account Credentials. You agree not to disclose your Account Credentials to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your Account. By registering for an Account, you agree that we may send you occasional emails relevant to your Account or to your use of the Services.
Billing and Payment
If you have purchased a paid Service through the Site, you are expressly agreeing that Company is permitted to bill you the applicable fees, any applicable tax and any other charges you may incur with Company in connection with your use of the Site and Service and that the fees will be billed
to the credit card you provide in accordance with the billing terms in effect at the time a fee or charge is due and payable. Subscription fees are payable in U.S. Dollars and based on Services purchased and not on actual usage. You will provide Company with valid and updated credit card information and you authorize Company to charge such credit card for all purchased subscriptions and renewals.
If you have purchased a paid subscription to the Site and Service, your subscription will automatically renew for additional, successive subscription periods equal in duration to the initial subscription period that you initially purchased unless you terminate your subscription prior to the next renewal period. You acknowledge and agree that Company will automatically charge your credit card on record with Company for the then-current subscription period upon the commencement of any renewal period. You may terminate your subscription to the Site and Service at any time and you will not be obligated to pay any additional fees for upcoming subscription renewal periods but any subscription fees you have paid in advance will not be refunded.
For any upgrade or downgrade in Site usage, your credit card that you provided will automatically be charged or credited the new prorated amount for the current month and the new rate will apply on your next billing cycle.
By using the Site and the Service, you consent to receiving electronic communications from Company. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to our Site and Service. These electronic communications are part of your relationship with Company and you receive them as part of your subscription to the Site and Service. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
You are responsible for providing and maintaining, at your own risk, option and expense, any hardware, software and communication lines required to access and use the Sites and Services, and Company reserves the right to change the access configuration of the Websites at any time without prior notice.
Third Party Sites
The Sites and Services may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Sites or Services. These other websites are not under Company’s control, and you acknowledge that Company is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Company or any association with its operators. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such website or resource.
Any use or attempted use of the Sites or Services: (i) for any unlawful, unauthorized, fraudulent or malicious purpose, or (ii) that could damage, disable, overburden, or impair any server, or the network(s) connected to any server, or (iii) interfere with any other party’s use and enjoyment of the Sites or Services, or (iv) to gain unauthorized access to any other accounts, computer systems or networks connected to any server or systems through hacking, password mining or any other means, or (v) to access systems, data or information not intended by Company to be made accessible to a user, or (vi) attempt to obtain any materials or information through any means not intentionally made available by Company, or (vii) any use other than the business purpose for which it was intended, is prohibited.
In addition, in connection with your use of the Sites and Services, you agree you will not:
1. Upload or transmit any message, information, data, text, software or images, or other content (“Material”) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable, or that may invade another’s right of privacy or publicity;
2. Create a false identity for the purpose of misleading others or impersonate any person or entity, including, without limitation, any Company representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
3. Upload or transmit any material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements);
4. Upload files that contain viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another;
5. Delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
6. Use the Sites’ or Services’ communication features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous posting of repetitive text);
7. Upload or transmit any unsolicited advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation, commercial or otherwise;
- Violate any applicable local, state, national or international law;
- Upload or transmit any material that infringes any patent, trademark, service mark, trade
secret, copyright or other proprietary rights of any party;
- Delete or revise any material posted by any other person or entity;
- Manipulate or otherwise display the Sites by using framing, mirroring or similar
navigational technology or directly link to any portion of the Sites other than the main homepage, www.perfectingpizza.com, in accordance with the Limited License and Site Access outlined herein;
12. Probe, scan, test the vulnerability of or breach the authentication measures of, this Website or the Sites or any related networks or systems;
13. Register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any Products and Services or any contests, promotions or sweepstakes if you are not expressly authorized by such party to do so;
- Harvest or otherwise collect information about others, including e-mail addresses; or
- Use any robot, spider, scraper, or other automated or manual means to access this Website,
or copy any content or information on this Website.
Right to Monitor
No Company Editorial Control of Third Party Content; No Statement as to Accuracy
To the extent that any of the Content included in the Sites is provided by third party content providers or other Website users, Company has no editorial control or responsibility over such Content. Therefore, any opinions, statements, products, services or other information expressed or made available by third party suppliers or users on the Sites or through the Services are those of such third party suppliers or users, respectively. Company does not represent or endorse the accuracy or reliability of any opinion, statement or other information provided by any third party, or represent or warrant that your use of the Content displayed on the Sites or Services or referenced content or service providers will not infringe rights of third parties not owned by or affiliated with Company.
Social Media Platforms and Websites
Additionally, in the event that any one of the Services offers a message board or any other interactive or social-type feature on a website administered directly by the Company, please be aware that these areas may allow you to publicly post, and share with other users, certain messages, content, or other information (e.g., stories, pictures, ingredients, tips, etc.). Although the Company may take certain precautions to protect those who use these areas of the Company’s Services, we encourage you to be wary of giving out any personal information in such public forums. The information you post can be collected and used by people you don’t know. We cannot guarantee the privacy and safety of these areas and are therefore not responsible for any information you choose to post. Your use of these features is fully at your own risk.
Warranty Disclaimer; Additional Representations and Warranties
In addition to any other representations or warranties herein contained, and as an inducement to enter into this Agreement, the parties represent and warrant to each other as follows, such
representations and warranties to be continuous in nature and effective as of the date of execution and throughout the term of this Agreement; (a) it shall have and will maintain in full force and effect during the term of the Agreement all licenses, permits, consents and approvals, both governmental and private, required to perform its obligations, duties and responsibilities under the Agreement; (b) it is a corporation or other business entity, duly organized, validly existing and in good standing under the laws of the State of its organization and is duly qualified to do business in all applicable jurisdiction; (c) the execution, delivery and performance of the Agreement by the party (i) is within its corporate power, (ii) has been duly authorized by all necessary corporate action on its part, and (iii) requires no consent or approvals of or filings with any governmental or other regulatory agencies, other than filings in the ordinary course of business and filings that have already been made; (d) the person who executing the Agreement on its behalf has been duly authorized to do so, and the Agreement constitutes the party’s legal, valid and binding obligation and is enforceable against it in accordance with its terms; (e) the execution, delivery and performance of the Agreement by the party does not and will not result in any breach or default under any other document, instrument or Agreement to which it is a party or by which it or any of its property is subject or bound; (f) the party is solvent, able to pay its obligations as they become due, and is not and shall not be engaged in any business or transaction for which its remaining capital is or may be unreasonably small; (g) the party has no actual intent to hinder, delay or defraud creditors in connection with any of its transactions or intent to incur (or belief that it is incurring) debts beyond its ability to pay the same as they mature; (h) the party has not commenced any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of or for debtors, seeking to have an order for relief entered with respect to the party or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts; (i) the party has not sought appointment of a receiver, trustee, custodian or other similar official for the party or for all or any substantial part of its assets or made a general assignment for the benefit of its creditors.
Although it is our intention for the Site and Services to be available as much as possible, we reserve the right to refuse access to the Sites or Services to anyone for any reason at any time. Additionally,
there will be occasions when access to the Sites or Services may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. We will not be liable to you for any modification, suspension, or discontinuation of the Sites or Services, or the loss of any Subscriber Data. You also acknowledge that the Internet may be subject to breaches of security and that the submission of Subscriber Data or other information may not be secure.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL COMPANY OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS AND MEMBERS OF OUR NETWORK, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “COMPANY”) BE LIABLE FOR ANY, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SITES OR SERVICES; (B) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BYLAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SITES OR SERVICES; (C) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (D) ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE SITES OR SERVICES; OR (E) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PRODUCTS, USE, DATA OR OTHER INTANGIBLE LOSSES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITIES OF THOSE DAMAGES, RESULTING FROM YOUR USE OR INABILITY TO USE THE SITES, SERVICES, PRODUCTS, OR CONTENT, THE COST OF OBTAINING SUBSTITUTE PRODUCTS AND SERVICES RESULTING FROM ANY LOSS OF DATA, INFORMATION, PRODUCTS AND SERVICES OBTAINED FROM PURCHASES OR TRANSACTIONS, OR STATEMENTS OR CONDUCT OF ANY THIRD PARTY, OR ANY OTHER MATTER RELATED TO THE SITES, SERVICES, PRODUCTS, OR CONTENT. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITES AND SERVICES IS PREDICATED UPON YOUR WAIVER OF ANY RIGHT TO PARTICIPATE IN A CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE SITES. IN THE EVENT THAT ANY COURT OR AUTHORITY OF APPROPRIATE JURISDICTION DETERMINES THAT ANY LIMITATION OF REMEDIES, LIABILITIES, OR DAMAGES HEREIN IS UNENFORCEABLE FOR ANY REASON, AND IN ANY EVENT RELATING TO DIRECT DAMAGES, THE MAXIMUM AGGREGATE LIABILITY OF COMPANY TO YOU ARISING OUT OF, RESULTING FROM, OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID BY YOU FOR PRODUCTS OR SERVICES HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE CIRCUMSTANCES OR EVENTS GIVING RISE TO THE LIABILITY.BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE
THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “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.”
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree that Company has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.
Indemnification and Limitation on Class Actions
You will not participate in a class action or class-wide litigation for any claims covered by this agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Company is a party to the proceeding and you and Company hereby expressly waive trial by jury.
Time Limitation on Claims
You agree that any claim you may have arising out of or related to your relationship with Company must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
Company owns or has rights to all intellectual property rights in and to the Services (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by subscriber or any other party relating to the Services or Software shall be owned by Company, and Subscriber hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by Company.
Subscriber owns any data, information or material originated by Subscriber that Subscriber submits, collects or provides in the course of using the Services, including information regarding Subscriber’s social networking connections, followers or other contacts activated through use of the Services (“Subscriber Data”). Company has no ownership rights in or to Subscriber Data; provided, however, that Subscriber grants to Company a fully-paid, worldwide license to use, copy, and distribute Subscriber Data to the extent necessary for Company to provide the Services. Subscriber shall be solely responsible for the accuracy, quality, content and legality of Subscriber Data, the means by which Subscriber Data is acquired and the transfer of Subscriber Data outside of Company.
Limited License and Site Access; All Rights Reserved
Trademarks and Service Marks
Certain trademarks are the service marks and trademarks of Company or one of its affiliates. The domain name for the Sites and Services, all page headers, custom graphics, and button icons are service marks, trademarks, logos, and/or trade dress of Company. All other trademarks, service
marks, trade dress, product names, company names or logos, whether registered or not, on the Sites and Services are the property of their respective owners. In addition to complying with all applicable laws, you agree that you will not use any such trademarks, service marks, trade dress, or other logos from the Sites and Services without the prior written authorization of Company.
Except as otherwise expressly stated, all Content appearing on the Sites and Services is the copyrighted work of Company or its third party content suppliers and is protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement and assembly) of all Content is also the exclusive property of Company and is protected by U.S. and international copyright laws.
You may download information from the Sites or Services and print out a hard copy for your personal use provided that you keep intact and do not remove or alter any copyright or other notice (e.g., trademark, patent, etc.) contained in the information. Except as otherwise expressly stated herein, you may not alter, modify, copy, distribute (for compensation or otherwise), transmit, display, perform, reproduce, reuse, post, publish, license, frame, download, store for subsequent use, create derivative works from, transfer, or sell any information or Content obtained from this Website, in whole or in part, including any text, images, audio, and video in any manner, without the prior written authorization of Company or any applicable third party suppliers. The use of Content, including images, by you, or anyone else authorized by you, is prohibited unless specifically permitted by Company. Any unauthorized use of text or images may violate copyright laws, trademark laws, the laws of privacy and publicity, and applicable regulations and statutes. Company does not warrant or represent that your use of Content, Products and Services or any other materials displayed on the Sites will not infringe rights of third parties.
Digital Millennium Copyright Act Policy (DMCA)
Company respects the intellectual property of others and requires that individuals who visit our Site or use our Products and Services do the same. If you believe that any Content on the Sites or Services violates or infringes upon your intellectual property rights pursuant to Title 17, United States Code, Section 512(c)(2) (the “Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act” or “DMCA:”), please notify us immediately at Perfecting Pizza, LLC, P.O. BOX 282 Fort Mill, SC 29716 with the following specifics necessary for us to consider and respond to your complaint.
• A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online Site are covered by a single notification, a representative list of such works at that Site;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material;
• Information reasonably sufficient to permit Company to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
• A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims.
Neither party shall be responsible for delays or failures in performance resulting from causes beyond the control of such party, including without limitation, any act of God, fire, casualty, delay, or disruption in transportation; flood, earthquake, war, strike, lockout, epidemic, destruction or shut-down of production facilities; shortage or curtailment, riot, insurrection, and governmental acts or directives; provided, however, that, in the event of the occurrence of a “force majeure” event as described in this Agreement, the non-performing party shall use all commercially reasonable efforts to meet its obligations as set forth in the Agreement.
Indemnification and Limitation on Class Actions
You will not participate in a class action or class-wide litigation for any claims covered by this agreement. You also agree not to participate in claims brought in a private attorney general or
representative capacity, or consolidated claims involving another person’s account, if Company is a party to the proceeding and you and Company hereby expressly waive trial by jury.
No Agency Relationship
Governing Law; Jurisdiction; Venue; Severability of Provisions