Peck Technology, Inc.
TERMS OF SERVICE
Last Updated: 16 September 2019
These Terms of Service (“Terms”) apply to your access to and use of the websites, mobile applications and other online products, and services (collectively, the “Services”) provided by Peck Technology, Inc. (“Peck” or “we”). By clicking “I accept” or by using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 14. If you do not agree to these Terms, do not use our Services.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
If you have any questions about these Terms or our Services, please contact us at [firstname.lastname@example.org].
To use our Services, you must be at least 13 years of age and must not have been previously suspended or removed from the Services.. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responble for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
3. User Accounts and Account Security
You will need to register for an account to access some or all of our Services. You must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames. You agree that your account is not transferable and that in the event of your death, incapacity or unavailability, we may terminate any rights to your account.
4. Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
Use or attempt to use another user’s account without authorization from that user and Peck;
Impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
Sell, resell or commercially use our Services;
Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
Develop or use any applications that interact with our Services without our prior written consent;
Bypass or ignore instructions contained in our robots.txt file; or
Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
Enforcement of this Section 4 is solely at Peck’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 4 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
5. Ownership; Limited License
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Peck or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
Peck Technology, Inc. and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Peck and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Peck or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Peck’s sole discretion. You understand that Peck may treat Feedback as nonconfidential.
8. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Peck’s designated agent as follows:
Designated Agent: Ronald A. LaSalvia
Address: 7160 E. Kierland Blvd. Unit 614
Scottsdale, AZ 85254
Telephone Number: 757.377.5758
Please include the following information in your notification:
1. Your physical or electronic signature;
2. A description of the copyrighted work that is allegedly being infringed or, if multiple works, a listing of those works;
3. Information reasonably sufficient to permit Peck to locate the allegedly infringing material;
4. Information reasonably sufficient to permit Peck to contact you, including your address, telephone number, and email address;
5. A statement that you have a good faith belief that the use of the allegedly infringing material is not authorized by the copyright owner, its agent, or under law; and
6. A statement that the information you submitted is accurate and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Peck for certain costs and damages.
9. Third-Party Content
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Peck does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Peck and our officers, directors, agents, partners and employees (individually and collectively, the “Peck Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You agree to promptly notify Peck Parties of any third-party Claims, cooperate with Peck Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the Peck Parties will have control of the defense or settlement, at Peck 's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Peck or the other Peck Parties.
Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, and to the fullest extent permitted by applicable law, our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Peck does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Peck attempts to make your use of our Services and any content therein safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. To the fullest extent permitted by applicable law, you assume the entire risk as to the quality and performance of the Services.
12. Limitation of Liability
To the fullest extent permitted by applicable law, Peck and the other Peck Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, incidental, punitive or special damages or lost profits, even if Peck or the other Peck Parties have been advised of the possibility of such damages.
The total liability of Peck and the other Peck Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $50 or the amount paid by you to use our Services.
The limitations set forth in this Section 12 will not limit or exclude liability for personal injury, death or property damage caused by the Services, products purchased through the Services, or the gross negligence, fraud or intentional, willful or reckless misconduct of Peck or the other Peck Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release Peck and the other Peck Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
14. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Peck and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
No Representative Actions. You and Peck agree that any dispute arising out of or related to these Terms or our Services is personal to you and Peck and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or Peck seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Peck seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Peck waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against Peck or relating in any way to the Services, you agree to first contact Peck and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Peck by email at [email@example.com] or by certified mail addressed to [Peck, 7160 E. Kierland Blvd, Unit 614, Scottdale, AZ 85254]. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Peck cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Maricopa County, Arizona or may be conducted telephonically or via video conference for disputes alleging damages less than $1,000.00 in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and Peck agree that these Terms affect interstate commerce and that the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrator, Peck and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and Peck agree that for any arbitration you initiate, you will pay the filing fee and Peck will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Peck will pay all JAMS fees and costs. You and Peck agree that the state or federal courts of the State of Arizona and the United States sitting in Maricopa County, Arizona have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Peck will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 14 by [email to firstname.lastname@example.org]. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 14.
If any portion of this Section 14 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 14 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 14; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 14 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 14 will be enforceable.
15. Governing Law and Venue
Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of Arizona, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Arizona or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Arizona and the United States, respectively, sitting in Maricopa County, Arizona.
Each party expressly waives the application of the United Nations Convention on Contracts for the International Sale of Goods and the UK Sale of Goods Act 1979.
16. Modifying and Terminating our Services
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
The failure of Peck to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically.