Any disputes under these Terms will be resolved on an individual basis through binding arbitration, with no class relief. More info in Section 7.
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Eligibility. You represent and warrant that you are at least 18 years old or the age of majority in the state in which you reside, you have the right, capacity and authority to be bound by these Terms, and you agree to be bound by these Terms when accessing or using our Services.
Updates to Terms. Pieology reserves the right to update or otherwise change these Terms at any time by posting on the Site or App the most current version of the Terms with a new “Last Updated” date shown. All changes are effective from that Last Updated date and your continued use of the Services after that date signifies your agreement to any such changes. Note that special terms, conditions, or rules may apply to some Services, such as rules for particular promotions, applications, or other features or activities. Any such terms are in addition to these Terms. In the event of any conflict or inconsistency between these Terms and any rules, restrictions, limitations, terms, or conditions that may be provided through the Services or otherwise communicated to you, we will determine, in our sole discretion, the order in which those items will control. If you are dissatisfied with any changes made pursuant to this provision or any policies or practices of Pieology in providing the Services, your sole remedy is to stop using our Services.
Electronic Communications. By accessing the Services, you consent to receiving these Terms in electronic form, and agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing.
Contacting You. Please keep your contact information up to date as you are solely responsible for any contact information you provide to us. When you provide us with contact information in connection with a particular activity or when using our Services, such as an email address or telephone number, you agree that this action constitutes either a purchase or inquiry and establishes a business relationship with us. You expressly consent to our communicating with you using contact information obtained directly from you or which is provided to us with your consent. You attest that you have the legal authority over any contact information provided to us and can provide us and/or third parties with the authorization to contact you. This means you may be contacted in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text (SMS) message, IM messaging, or any other means of communication that your wireless or other telecommunications device may be capable of receiving), in accordance with applicable law.
2. MOBILE APPLICATION TERMS
License Grant. Subject to these Terms and as permitted by the Usage Rules set forth in the Terms of Service for the Apple iOS App Store or on the Google Android platform, Pieology and Punchh (the App developer) grant you a limited, non-exclusive, and nontransferable license to download, install, and use the App for your personal, non-commercial use on a personal mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the App’s documentation, to access, stream, download, and use on such Mobile Device the Services that may be made available in or otherwise accessible through the App, strictly in accordance these Terms.
Application Updates. Pieology may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Pieology has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (1) the Application will automatically download and install all available Updates; or (2) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to these Terms.
Termination. Pieology may terminate your access to the App immediately without notice if Pieology in its sole discretion (i) ceases to support the App; (ii) determines it has lost or will lose any licenses to software or materials used as a part of the App; or (iii) you fail to comply with any of these Terms. You may terminate the App by deleting the App and all copies thereof from your Mobile Device. Upon Termination for any reason you must cease use of the App.
Third-Party Beneficiary. You acknowledge and agree that Punchh is a third-party beneficiary with respect to your use of the App.
U.S. Export Controls. The App may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the App to, or make the App accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the App available outside the US..
3. INTELLECTUAL PROPERTY RIGHTS
Ownership of Content and Marks. The Services, and all content published on or accessible through the Services (‘Content”), is owned by Pieology, its affiliates or its licensors, and is protected by laws governing copyrights patents, trademarks, trade secrets and/or other proprietary rights. Pieology owns a copyright in the selection, coordination, arrangement and enhancement of such Content and a copyright in the Site and the App. All trademarks, logos, service marks, trade names, and trade dress appearing on the Content and Services (“Marks”), are proprietary to Pieology, its affiliates, or its licensors. You acknowledge that you do not acquire any ownership rights in any Content or Marks downloaded or accessed from the Services. You may not frame or utilize framing techniques to enclose any Mark or Content (including images, text, page layout, or form) nor use any Meta tags or any other “hidden text” utilizing Pieology’s, its affiliates’, or its licensors’ name or Marks without the prior express written consent of Pieology. You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, any Services or any of the Marks or Content, in whole or in part, without the prior written consent or Pieology.
Our Limited License to You. You acknowledge and agree that the Services and Content are provided under license, and not sold, to you. You do not acquire any ownership interest in the Services or Content under these Terms, or any other rights thereto other than to use the Services and Content in accordance with the license granted, and subject to all terms, conditions, and restrictions under these Terms. Pieology grants you a limited, personal, non-commerical, non-exclusive, revocable, non-assignable, and non-transferable license to access (but not through scraping, spidering, crawling or other technology or software used to access data) and display the Content (excluding any software code) solely for your personal use in connection with accessing and using the Services as reasonably necessary to use them for their intended purpose. You may not insert any code or product to manipulate the Content or Site or App in any way that affects any user’s experience. Pieology and its licensors reserve all rights not expressly granted in and to its respective Services, Marks and Content. You may not use the Services, Marks or Content in a manner that constitutes an infringement of our rights or that has not been authorized by us. More specifically, unless explicitly authorized in these Terms you may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works, exploit, or distribute in any manner or medium (including by email or other electronic means) any material from the Services. You may, however, from time to time, download copies of individual pages from the Services for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices.
Your License to Us. By submitting any material to us (“User Content”) you are representing that you are the owner of the User Content you provide to us or have the express written consent of the owner of the User Content. In addition, you are granting us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such User Content, in whole or in part, in any manner or medium, now known or hereafter developed, for any purpose.
4. USE OF THE SERVICES
Ordering Online. Menu items and gift cards available on our Site or App are subject to availability when you order. Images on our Site or App may not accurately capture the actual appearance or quantity of what is available for purchase. When you order online, you are responsible for providing accurate billing information. From time to time, the prices of our food in our restaurants may be higher or lower than those prices available through the Site or App. In that event, the prices on our menus at each restaurant location will govern the price you will pay.
Monitoring. Pieology reserves the right to monitor all network traffic to the Services. Pieology may block unauthorized attempts or intrusions to upload or change information or cause damage to Services in any fashion. Anyone using the Services expressly consents to such monitoring.
Termination. Pieology may terminate your access to Services immediately or disable any user name, password or other identifier, whether chosen by you or provided by Pieology, at any time without notice, if, in Pieology’s sole opinion, you have violated any provision of these Terms. Upon Termination you must cease all use of the Services. Termination will not limit any of Pieology’s rights or remedies at law or in equity.
Security. If you use our Services you are responsible for restricting access to your computer and ensuring that your computer and mobile device are free from all types of malicious content, including content that may track any data you enter via the Services, including email address, credit card number, and other payment-related information. Your login ID email address (or other unique identifier needed to create an account) and password, together with any mobile number or other contact information you provide, form your “Account Information.” You understand and agree that you are responsible for maintaining the confidentiality and security of your password and other Account Information, and that you are solely responsible for all activities that occur on or through your account. You further agree to notify Pieology immediately of any unauthorized access to or use of your Account Information or any other security breach, at the email address firstname.lastname@example.org.
Payment Verification. Pieology may refuse service or decline orders for any reason. As a condition to accepting payment or fulfilling an order, Pieology may, in its sole discretion, require you to provide written verification and proof of your identity by supplying us with a copy of government-issued photo identification.
Data Collection Policy. No party unaffiliated with Pieology may collect or use, or direct, authorize or assist other persons or entities to collect or use any data from a user, or a computer or device operated by a user, while accessing our Services without our prior express written permission.
Changes to our Services. We reserve the right to change our Services, or any portion thereof, at any time without notice.
5. LEGAL NOTICES
Limitation of Warranty. THE INFORMATION, PRODUCTS AND SERVICES OFFERED ON OR THROUGH THE SERVICES BY PIEOLOGY AND/OR ANY THIRD-PARTY WEBSITES/APPLICATIONS ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT: 1) THAT THE SITE, APP OR OTHER SERVICES OR ANY OF THEIR FUNCTIONS WILL BE UNINTERRUPTED OR ERROR-FREE; 2) THAT DEFECTS WILL BE CORRECTED; 3) OR THAT ANY PART OF THE SITE, APP OR OTHER SERVICES, OR THE SERVERS THAT MAKE THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR CONTENT CONTAINED THEREIN OR THIRD-PARTY WEBSITES OR APPLICATIONS WITH REGARD TO THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, APPROPRIATENESS FOR ANY PURPOSE, OR OTHERWISE.
Limitation of Liability. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL WE, OR OUR AGENTS AND THIRD-PARTY SUPPLIERS BE LIABLE FOR ANY DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED FIFTY ($50) DOLLARS OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL OR INCONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION THAT RESULT FROM LOSS OF PROFITS, DATA OR OTHER INTANGIBLES, THE USE OR THE INABILITY TO USE THE SERVICES OR FROM TRANSACTIONS ENTERED INTO WITH PIEOLOGY OR THIRD PARTY SERVICE PROVIDERS ASSESSIBLE THROUGH THE SITE, APP OR OTHER SERVICES OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, EVEN IF WE ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY AND THE LIABILITY OF OUR AGENTS AND THIRD-PARTY SUPPLIERS IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW. THE NEGATION OF DAMAGES SET FORTH HEREIN IS A FUNDAMENTAL ELEMENT OF THE BARGAIN BETWEEN US AND YOUR USE OF THE SERVICES. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH THE SERVICES YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
Indemnification. You agree at all times to defend, indemnify and hold harmless Pieology, its affiliates, their successors, transferees, assignees and licensees, and their respective parent and affiliated companies, agents, associates, officers, directors, shareholders and employees of each, from and against any and all claims, causes of action, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, arising out of or related to (i) your use or misuse of the Services; (ii) your violation of these Terms; (iii) negligent acts or omissions; (iv) any User Content/Feedback you submit to us; and/or (v) damage to property.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
CALIFORNIA RESIDENTS: If you are a California resident and in connection with the foregoing release, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “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.”
6. DISPUTE RESOLUTION
Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND/OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Informal Resolution. In the event of any dispute, controversy or claim arising out of or relating to these Terms or Services (“Dispute”), you agree that before taking any formal action, you will contact us at pieology.com/contact-us, provide a brief, written description of the dispute and your contact information (including your username if your dispute relates to an account) and allow 60 days to pass, during which we will attempt to reach an amicable resolution of any issue.
Arbitration. If we cannot reach resolution, you consent to arbitrate your Dispute, before a single arbitrator under the then current rules and fees of the American Arbitration Association (or another alternative dispute resolution provider, chosen mutually by you and Pieology) in a location in Rancho Santa Margarita, California rather than litigate the dispute in court.
The arbitration will be governed by the laws of the State of California, conducted in English, and be confidential. You and Pieology also agree that the United States Arbitration Act governs the arbitrability of all disputes between us. In addition, you agree not to participate in a class action, a class-wide arbitration, claims brought in a representative capacity, or consolidated claims involving another person’s use of the Services, if Pieology is a party to the proceeding. The arbitrator shall interpret and determine the validity of the arbitration provision, including unconscionability. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. The arbitrator shall not award consequential damages in any arbitration initiated under this section. Any relief ordered cannot affect other users of the Services. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If the arbitrator finds that the arbitration agreement, including class waiver, is unenforceable, in whole or part, the entire arbitration provision shall be null and void and either party may file the action in court. If for any reason a claim proceeds in court rather than through arbitration, you and we each waive any right to a jury trial.
Exceptions. There are only two exceptions to this arbitration agreement: 1) Either of us may take claims to small claims court if they qualify for hearing by such a court, so long as the matter remains in that court and advances only on an individual (non-class, non-representative) basis; and 2) if a party reasonably believes that the other party has threatened to infringe the intellectual property rights of the other party the owner of the intellectual property rights may seek injunctive or other appropriate interim relief in any court of competent jurisdiction.
Opt-Out Procedure. In order to opt-out, you must email your name, address (including street address, city, state, and zip code), and email address(es) associated with your Account(s) to which the opt-out applies and an unaltered digital image of a valid driver’s license that matches the name on your account to: email@example.com or via US Mail to Pieology, 2642 Michelle Drive Suite 100, Tustin, CA 92780.
Geographic Restrictions. The Services are provided for access and use only by persons located in the United States of America and its territories (“Territory”). Pieology makes no representations that the Services are appropriate for use from locations outside the Territory or compliant with laws outside the Territory. You acknowledge that you may not be able to access all or some of the Services outside of the Territory and that access thereto may not be legal by certain persons or in certain countries. If you access the Services from outside the Territory, you are responsible for compliance with local laws.
Feedback. All comments or materials submitted to us, including ratings, testimonials, images, reviews, questions, comments, suggestions or ideas (collectively, “Feedback”), is received and treated by us on a non-confidential and unrestricted basis. If you provide Pieology with any Feedback, you hereby grant Pieology a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, sublicensable license to reproduce, distribute, modify, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit that Feedback for any purposes, for all current and future methods and forms of exploitation throughout the world. If any such rights may not be licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert all such rights. You understand and agree that Pieology is not required to make any use of any Feedback that you provide. You agree that if Pieology makes use of your Feedback, Pieology is not required to credit or compensate you for your contribution. You represent and warrant that you have sufficient rights in any Feedback that you provide to Pieology to grant Pieology and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary or personal rights.
Survival. If these Terms expire or are terminated for any reason, the provisions which by their nature should continue after termination including Intellectual Property Rights, Legal Notices, Dispute Resolution and General shall survive any such expiration or termination.
Severability. Except as otherwise provided herein, if any provision of these Terms is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable.
No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there are not third party beneficiaries to these Terms.
Miscellaneous. These Terms, and policies incorporated herein, are the entire agreement between you and Pieology. They supersede any and all prior or contemporaneous agreements between you and Pieology relating to your use of the Services. You may not assign your rights under your account or this agreement to any third party without Pieology’s prior written permission. Pieology may assign these Terms, in whole or in part, at any time. If any part of these Terms is determined to be invalid or unenforceable, it will not impact any other provision of these Terms, all of which will remain in full force and effect. Headings in the Terms are for convenience of reference only and shall not affect the interpretation or construction of this agreement. The failure of Pieology to partially or fully exercise any rights or the waiver of Pieology of any breach of these Terms by you, shall not prevent a subsequent exercise of such right by Pieology or be deemed a waiver by Pieology of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of Pieology under these Terms and any other applicable agreement between you and Pieology shall be cumulative, and the exercise of any such right or remedy shall not limit Pieology’s right to exercise any other right or remedy.
8. CONTACT US
If you have any questions about these Terms or our Services, please contact us at pieology.com/contact-us, call us at (949) 674-3844, or write us at Pieology, 2642 Michelle Drive Suite 100, Tustin, CA 92780.