GENERAL AND ACCEPTANCE
1.2. This Agreement governs your use of: (i) our website, located at: www.peacockspantry.net and operated by the Company (“Website”); (ii) the mobile application software, developed and owned by Quick Check Ltd., for an on-line payment solution via an iPhone, iPad, Android and Blackberry (“Application”); and (iii) any related services thereto (“Services”) (together the “Sites”). Throughout this Agreement, we will refer to Website, Application and Services together with any software, data, information or other material contained in or accessible via the Website and/or the Application and/or the Services, collectively as “Peacock's Pantry”.
1.3. The titles in this Agreement are provided only for your convenience and are not to be used in interpreting the Agreement. This Agreement applies equally to both genders, and the masculine language is used for convenience reasons only.
1.4. BY BROWSING, ACCESSING AND/OR USING ANY PART OF Peacock's Pantry, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT ACCESS OR USE ANY PART OF Peacock's Pantry.
1.5. By browsing, accessing and/or using any part of Peacock's Pantry (whether with or without registration) you represent and warrant that: (i) You are 18 years of age or older; (ii) you are eligible to enter into binding contracts; you have an email address; and (iv) you have a valid credit card issued in USA by one of the credit card companies.
RESTRICTIONS USE; UNAUTHORIZED OR ILLEGAL USE
4.1. Without derogating from any provisions of this Agreement, the following prohibitions shall apply while using Peacock's Pantry:
4.1.1. You may not transmit unauthorized communications through Peacock's Pantry, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
4.1.2. You may not reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Services, or to obtain any information from Peacock's Pantry using any method not approved in writing by Company;
4.1.3. You agree not to reproduce, republish, upload, post, transmit, make available to the public, or otherwise distribute, or any part or any modification or derivative work of Peacock's Pantry;
4.1.4. You may not institute, assist or become involved in any type of attack, including distribution of a virus, attacks upon Peacock's Pantry that prevent access to or use of Peacock's Pantry, other attempts to disrupt Peacock's Pantry, gain unauthorized access to Peacock's Pantry, or disrupt any other person’s use or enjoyment of Peacock's Pantry;
4.1.5. You shall not use, facilitate, create, or maintain any unauthorized connection to Peacock's Pantry, including: (i) any connection to any unauthorized server that emulates, or attempts to emulate any part of Peacock's Pantry; or (ii) any connection using programs, tools, or software not approved in writing by the Company;
4.1.6. You shall not copy, modify or distribute rights or content from the Services, or Company’s copyrights or trademarks or use any method to copy or distribute the content of Peacock's Pantry except as specifically allowed in this Agreement; and
4.2. If you violate any of the limitations set forth herein and/or commit fraud or falsify information in connection with your use of Peacock's Pantry or in connection with your Account, your Account will be terminated immediately and we reserve the right to hold you liable for any and all damages that we suffer, to pursue legal action through relevant local and national law enforcement authorities and to notify your Internet Service Provider of any fraudulent activity we associate with you or your use of Peacock's Pantry. If we terminate your Account, you may not re- enroll or join under a new Account unless we formally invite you.
4.3. Without derogation from anything in this Agreement, Company reserves the right to decline any new registration or to cancel any account, or to prevent any use of Peacock's Pantry (or any part of Peacock's Pantry), or to prevent user from making any purchase using Peacock's Pantry, either temporarily or permanently, at any time in its sole discretion without providing any prior notice, including due to any of the following: (i) the user performed an illegal acting by the law; (ii) the user violated any provision of this Agreement; (iii) the user provided incorrect information when registered for the account; (iv) the user performed an act or omission that harms the Company and/or anyone on its behalf and/or proper functioning of Peacock's Pantry and/or on any third party; (v) if the credit card user has been blocked or restricted in any way.
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
5.1. Peacock's Pantry is provided by Company on an “as is” and “as and when available” basis to users. You use Peacock's Pantry at your own risk.
5.2. Company makes considerable efforts to make information made available via Peacock's Pantry as accurate as possible but no warranty or fitness is implied.
5.3. Neither Company nor any of its officers, directors, shareholders, employees, affiliates, agents, third-party content providers, sponsors, licensers, or the like, makes any representation or warranty or condition, either express or implied, to you:
5.5. In jurisdictions that do not allow the exclusion or disclaimer of certain warranties, the above exclusion may not apply to you.
LIMITATION OF LIABILITY
6.1. Under no circumstances will Company or any of its officers, directors, shareholders, employees, affiliates, agents, sponsors, licensers, or any other party involved in the creation, production, maintenance or distribution of
Peacock's Pantry be liable for any direct, indirect, incidental, special or consequential damages (including but not limited to loss of profits, business, anticipated savings, goodwill, use of data or other intangible losses) that result from either:
6.2. If any jurisdiction does not allow the exclusion or limitation of liability for consequential or incidental damages, liability is limited to the fullest extent permitted by law.
6.3. LIMITATION OF LIABILITY. WITHOUT DEROGATING FROM THE ABOVE, IN ANY EVENT NEITHER COMPANY NOR Peacock's Pantry TOTAL AGGREGATE LIABILITY TO THE USER OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THIS AGREEMENT IN CONNECTION WITH A SPECIFIC TRANSACTION (WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) SHALL IN NO EVENT EXCEED THE FEES PAID TO Peacock's Pantry FOR SUCH TRANSACTION.
7.1. All intellectual property rights in Peacock's Pantry, including all copyright, patents, trademarks, service marks, trade names, designs, whether registered or unregistered, information content on Peacock's Pantry, any database operated by us and all Peacock's Pantry design, text and graphics, software, photos, video, music, sound, and their selection and arrangement, and all software compilations, underlying source code and software (including applets and scripts) shall remain the property of Quick Check Ltd. (or that of its licensors). You shall not, and shall not attempt to, obtain any title to any such intellectual property rights. All rights are reserved.
7.2. None of the material listed in Section 7.1 above may be reproduced or redistributed or copied, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, sold, rented or sub- licensed, used to create derivative works, or in any way exploited without our prior express written permission. You may, however, retrieve and display the content of the Website on a computer screen, store such content in electronic form on disk (but not on any server or other storage device connected to a network) or print one copy of such content for your own personal, non-commercial use, provided you keep intact all and any copyright and proprietary notices. You may not otherwise reproduce, modify, copy or distribute or use for commercial purposes any of the materials or content on the Website without our permission.
JURISDICTION AND GOVERNING LAW
8.1. This Agreement and any dispute shall be governed by and construed in accordance with Laws of the State of New York and/or applicable federal law, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction. Parties agree to submit to the exclusive jurisdiction of the courts located within the State of New York to resolve any dispute arising out of this Agreement.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH ARBITRATION INSTEAD OF COURT TRIALS AND CLASS ACTIONS. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT, USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, AND DISCOVERY IS MORE LIMITED. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
9.1. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to this Agreement and your relationship with us. Any dispute or claim arising out of or relating to this Agreement and your relationship with us or any subsidiary, parent or affiliate company or companies (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration, or in the event applicable, either party may take claims to small claims court if they quality for earing by such court.
9.2. Notwithstanding the above, you may choose to pursue your claim in court and not by arbitration if you opt out of this arbitration provision within thirty (30) days from the earliest of the date you made a purchase, downloaded the app, or participated in any functionality associated with this Agreement (the “Deadline”) after this Agreement has gone into effect. You may opt out of these arbitration procedures by sending us a written notice that you opt out to the following address: Elior, Inc., 300 South Tryon Street, Charlotte, North Carolina 28202. Any opt out received after the Deadline (allowing three (3) additional days for mailing) will not be valid and you must pursue your claim in arbitration or small claims court.
9.3. For all disputes, whether pursued in court or arbitration, you must first send a written description of your claim to our customer service department to allow us an opportunity to resolve the dispute. You and we each agree to negotiate your claim in good faith. You may request arbitration if your claim or dispute cannot be resolved within sixty (60) days. The arbitration of any dispute or claim shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”), including the AAA”s Consumer Arbitration Rules (as applicable), as modified by this Agreement. The AAA Rules and information about arbitration and fees are available online at www.adr.org. You and we agree that this Agreement evidences a transaction in interstate commerce, and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law, and not governed by state law. Any arbitration will be held in a reasonably convenient location in the state in which you reside or at another mutually agreed location. The arbitration will be conducted in the English language. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy your individual claim, and must follow and enforce this Agreement as a court would. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award. Judgment upon any arbitration award may be entered in any court having proper jurisdiction.
9.4 Upon filing of the arbitration demand, we will pay all filing, administration and arbitrator fees other than the initial filing fee and, for claims less than $1,000, we will reimburse you for the filing fee within thirty (30) days of receiving a written request from you. Each party shall bear the fees of its own attorneys, experts, witnesses and preparation and presentation of evidence at the arbitration. Except for claims determined to be frivolous, we agree not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law.
9.5 You and we each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If a court or arbitrator determines that this class action waiver is unenforceable, the arbitration agreement will be void as to you. If you opt out of the arbitration provision as specified above, this class action waiver provision will not apply to you. Neither you nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt-out procedure set forth above. If for any reason a claim proceeds in court rather than through arbitration, you and we each waive any right to a jury trial.
COPYRIGHT AND LIMITED LICENSE
10.1 Unless otherwise indicated, Peacock's Pantry and all content and other materials therein, including, without limitation, the Peacock's Pantry log and all designs, texts, graphics, pictures, information, data, software, sound files, other files, and the selection and arrangement thereof (collectively, “Materials”) are the personal property of Peacock's Pantry or its licensors or users and are protected by U.S. and international copyright laws.
11.1. These conditions and any and all documents specifically referenced herein constitute the entire agreement between you and Company with respect to the subject matter hereof. If any provision contained in these conditions is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, that provision shall be severed from these conditions and the remaining provisions shall continue in full force and effect.
This Agreement was most recently updated on February 1, 2019.