PLEASE NOTE: IF YOU RESIDE IN THE UNITED STATES, THESE TERMS CONTAIN A MANDATORY ARBITRATION AND CLASS ACTION WAIVER CONTAINED IN SECTION 20, THAT REQUIRES YOU SUBMIT YOUR DISPUTES TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS UNLESS YOU OPT OUT AS DESCRIBED IN SECTION 20.
Table of Contents:
- Account Registration
- Sale of Products and Services
- Ownership and Intellectual Property
- Your License to Use the Services
- User Submitted Content
- Copyright Policy
- General Prohibitions and Acceptable Use Standards
- Termination and Account Cancellation
- Limitation and Liability
- Controlling Law and Jurisdiction
- Entire Agreement
- Dispute Resolution, Mandatory Arbitration and Class Action Waiver
- Export Control and Economic Sanctions Laws
- Government End Users
1. Account Registration
In order to access or use certain features of the Service must register for an account (“Account”). You agree to provide accurate, current and complete information during the registration process and at all times when you use the Service and to update such information if it changes. PeakDo reserves the right to suspend or terminate your Account if any information provided during the registration process or at other times proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password 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 PeakDo of any unauthorized use of your Account. To use our Services, you must be at least eighteen years of age or otherwise recognized as being able to form legally binding contracts under applicable law.
3. Sale of Products and Services
End-Users Only/Resale Prohibited: this Site is intended only for sales to end-user customers who may use the PeakDo products for personal or professional purposes. Products sold through the Site are not authorized for resale or export. The resale of a PeakDo product without the authorization of PeakDo is an infringement of PeakDo’s intellectual property rights. By submitting an order on PeakDousa.com, you agree that you are not purchasing PeakDo’s products for resale.
Descriptions: we do our best to provide accurate information on our product pages – including product descriptions, prices, shipping estimates, etc. However, we reserve the right to correct pricing errors that may inadvertently occur (which may require us to revoke an offer). Prices and availability are subject to change. Your order is subject to cancellation by us, in our sole discretion.
Order Acceptance: we reserve the right to cancel or refuse any order for any reason at any stage of the online ordering process, including after an order has been submitted and whether or not the order has been confirmed. Some situations that may result in cancellation include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified by our credit and fraud avoidance department. We may also require additional verifications or information before accepting any order. We will attempt to contact you if all or any portion of your order is cancelled, or if additional information is required to accept your order. If we do cancel your order, we will refund you any amounts that you have been charged.
Payments: generally, we do not charge your payment method until after you order has shipped. However, we may pre-authorize the total purchase amount (including applicable taxes and shipping costs) with your authorized payment method once when you place your order. You cannot make changes to your order after it has been placed.
Indirect Taxes: this Site is dedicated to sales to end-user customers and indirect taxes (VAT, GST or sales tax) is included or assessed as appropriate. PeakDo provides a tax invoice to each end-user customer. If a duplicate copy of the tax invoice is needed, you may contact Customer Service to request this.
Risk of Loss: All purchases of physical products are made subject to a shipping contract. Risk of loss and title for purchases pass to you upon our delivery to the carrier. You must notify us within 21 days of the date of your invoice or acknowledgement if you believe any part of your purchase is missing, wrong or damaged.
Shipping, Returns, Manufacturer Warranty: please see our Shipping Policy, Warranty and Return Policy for further information about purchasing our cameras, mounts and accessories. As described in the Return Policy, if you are an EU resident, you also have a legal right to withdraw from this contract without giving any reason within 14 days of receiving your purchased goods.
B. Subscription Services
If you purchase a subscription service from PeakDo (“Subscription”), then, in addition to these Terms, your Subscription is also governed by the PeakDo Subscription Terms and Conditions (“Subscription Terms”) and any additional terms and conditions presented during your Subscription purchase. The Subscription Terms will govern to the extent of any express conflict with the Terms herein.
4. Ownership and Intellectual Property
The Service and Content are protected by copyright, trademark, and other laws of the United States and foreign countries and are subject to our Trademark Policy (which is incorporated herein by reference). Except as expressly provided in these Terms, PeakDo and its licensors exclusively own all right, title and interest in and to the Service and Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or Content.
All trademarks, service marks, logos, trade names and any other proprietary designations of PeakDo used herein are trademarks or registered trademarks of PeakDo. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
5. Your License to Use the Services
“Content” on the Service means any links, text, graphics, images, music, audio, video, photos, information, code, or other materials available on the Service. Subject to your compliance with these Terms, PeakDo grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Service, to access, use, view and print any Content and the right to download one copy of the application to any single device solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service or Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by PeakDo or its licensors, except for the licenses and rights expressly granted in these Terms.
6. User Submitted Content
You acknowledge and agree that you are solely responsible for all User Content. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, permissions, consents and releases that are necessary to grant to PeakDo the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the Content or PeakDo’s use of the User Content (or any portion thereof) otherwise will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
If you choose to provide feedback, comments and suggestions for improvements to the Service (orally or written) (“Feedback”), you acknowledge and agree that all Feedback will be PeakDo’s sole and exclusive property and you hereby irrevocably assign to PeakDo and agree to irrevocably assign to PeakDo all of your right, title, and interest in and to all Feedback, including any intellectual property rights therein.
8. Copyright Policy
PeakDo respects copyright law and expects its users to do the same. PeakDo has adopted and implemented a policy that provides for the termination in appropriate circumstances of registered users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see PeakDo’s Copyright Policy, for further information.
9. General Prohibitions and Acceptable Use Standards
You agree not to do any of the following:
- Access or use the Service unless you can form legally binding contracts under applicable law and are at least 18 years of age.
- Post, upload, publish, submit or transmit any Content (including any links thereto) that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or any duty of confidentiality that you owe to another party; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) promotes, encourages, or engages in terrorism violence against people, animals, or property; (vii) promotes, demonstrates or constitutes illegal or harmful activities or substances; or (viii) promotes, encourages, or engages in child pornography or the exploitation of children.
- Use, display, mirror or frame the Service, or any individual element within the Service, PeakDo’s name, any PeakDo trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without PeakDo’s express written consent;
- Access, tamper with, or use non-public areas of the Service, PeakDo’s computer systems, or the technical delivery systems of PeakDo’s providers;
- Attempt to probe, scan, or test the vulnerability of any PeakDo system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by PeakDo or any of PeakDo’s providers or any other third party (including another user) to protect the Service or Content;
- Attempt to access or search the Service or Content or download Content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by PeakDo or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a PeakDo trademark, logo URL or product name without PeakDo’s express written consent;
- Use the Service or Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service or Content;
- Interfere with, or attempt to interfere with, the operation of the Service and Content, the access of any user, host or network, including, without limitation, hacking, cracking, sending or installing any kind of computer virus designed to be capable of disrupting, damaging, or limiting the functionality of any software or hardware, overloading, flooding, spamming, or mail-bombing the Service;
- Collect or store any personally identifiable information from the Service from other users of the Service without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
PeakDo may investigate and prosecute violations of any of the above to the fullest extent of the law. PeakDo may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that PeakDo has no obligation to monitor your access to or use of the Service or Content or to review or edit any Content, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. PeakDo reserves the right, at any time and without prior notice, to remove or disable access to any Content, including, any Content, that PeakDo, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Service or otherwise violates any applicable law.
The Service may contain links to third-party websites. PeakDo does not control or endorse these third-party websites. PeakDo is not responsible for the availability, appropriateness, accuracy, content, advertising, product or services of such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources. By using the Service, you expressly release PeakDo from any and all liability arising from your use of any third-party website or on-line resource. Accordingly, PeakDo encourages you to be aware when you leave the Service and to review the terms and conditions, privacy policies, and other governing documents of each website that you may visit.
PeakDo reserves the right, at its sole discretion, to modify, discontinue or terminate the Service (including, without limitation, the fees and benefits for any Subscriptions) or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Service or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Service after we have posted a modification on the Site or via the Service or have provided you with notice of a modification, you are indicating that your agreement and express consent to be bound by the modified Terms. You may also be asked to re-acknowledge and re-accept the Terms following any material changes. If the modified Terms are not acceptable to you, you may cease using the Service and this is your only recourse.
12. Termination and Account Cancellation
If you breach any of these Terms or otherwise violate applicable law, in its sole discretion and without prior notice to you, PeakDo has the right to suspend, disable, terminate or cancel your Account and/or terminate these Terms – and you shall not be entitled to any refunds, credits or other consideration for any forfeited Subscription fees. Except as set forth herein, PeakDo is under no obligation to continue to support the Service in any way, or to provide you with updates or error corrections to Service – provided, however, that we may, in our sole discretion, provide you will a refund, credit or other consideration if you are a subscriber and we suspend or discontinue your Subscription. Except as otherwise expressly stated, Your rights under these Terms will terminate immediately and automatically, with or without notice in PeakDo’s sole discretion, if PeakDo ceases to support the Service. PeakDo reserves the right to revoke, suspend, cancel or disable your access to and use of the Service (not including the Subscription services) and Content at any time, with or without cause. Except as otherwise specified in the Subscription Terms, You may cancel your Account at any time by contacting PeakDo Support at https://community.PeakDousa.com.
OTHER THAN AS EXPRESSLY PROVIDED IN WRITING BY PEAKDO IN CONNECTION WITH YOUR PURCHASE OF A PEAKDO PRODUCT, THE SERVICE AND CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, PEAKDO EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PEAKDO MAKES NO WARRANTY THAT THE SERVICE OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. PEAKDO MAKES NO WARRANTY THAT PEAKDO WILL CONTINUE TO OFFER OR MAKE AVAILABLE THE SERVICES, INCLUDING WITHOUT LIMITATION ANY PARTICULAR SOFTWARE FOR ANY PARTICULAR LENGTH OF TIME AND PEAKDO RESERVES THE RIGHT TO CHANGE AND UPDATE THE SERVICE AND ANY SOFTWARE WITHOUT NOTICE TO YOU. PEAKDO MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PEAKDO OR THROUGH THE SERVICE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE.
THE FOREGOING DISCLAIMERS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS OR YOUR USE OF THE SERVICE.
You agree to defend, indemnify, and hold PeakDo, its subsidiaries and affiliates, and their officers, directors, employees, agents, representatives and attorneys harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Service or Content; (ii) your violation of these Terms or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive the termination or expiration of these Terms or your use of the Service.
15. Limitation and Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PEAKDO NOR ANY OTHER COMPANY OR INDIVIDUAL INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PEAKDO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE EXTENT JEW JERSEY LAW APPLIES TO YOU, THIS EXCLUSION OR LIMITATION OF LIABILITY DOES NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PEAKDO’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR CONTENT EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL AND MATERIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PEAKDO AND YOU.
16. Controlling Law and Jurisdiction
If you reside inside the European Union, these Terms and any action related thereto will be governed by the laws of the Member State where you are domiciled. In case of a dispute the competent courts of the Member State where you are domiciled will have jurisdiction, but you may also choose one of the options provided for in section 20 (Dispute Resolution). The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
If you reside outside of the European Union, these Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to exclusive jurisdiction and venue in such courts.
17. Entire Agreement
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between PeakDo and you regarding the Service and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between PeakDo and you regarding the Service and Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without PeakDo’s prior written consent and any attempt by you to do so will be null and of no effect. PeakDo may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
You consent to receive notifications from PeakDo electronically to the email address you provide. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirements that such communications be in writing. You agree that you can store such electronic communications such that they remain accessible to you in unchanged form.
20. Dispute Resolution
IF YOU RESIDE INSIDE THE EUROPEAN UNION: Without prejudice to your right to bring an action against PeakDo in the competent courts of the Member State where you are domiciled, we will try to resolve any disputes with you quickly and efficiently if you are not satisfied with your subscription. In such case, we invite you to contact us as soon as possible through https://community.PeakDousa.com. If we are unable to resolve a dispute with you using our internal complaint handling procedure, we will notify you as such.
MANDATORY ARBITRATION AND CLASS ACTION WAIVER. IF YOU RESIDE IN THE UNITED STATES OR OUTSIDE THE EUROPEAN UNION, PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Last Updated Date to Section 20: August 17, 2020
Application. You and PeakDo agree that these Terms affect interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 20 is intended to be interpreted broadly and governs any dispute, claim, or controversy of any kind between PeakDo arising under these Terms or in connection with your access to, and/or use of the Service, including but not limited to the PeakDo Plus subscription service, and/or the provision of content, services, and/or technology on or through the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below in the Exception provision.
Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at https://community.PeakDousa.com and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). To the extent that PeakDo has your contact information, it will send any such notice to you by U.S. Mail, or otherwise to your email address. PeakDo and you will attempt to resolve any dispute, claim, or controversy through informal negotiation within sixty (60) days from the date that any notice of dispute, claim, or controversy is sent. PeakDo and you shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After 60 days, PeakDo or you may resort to the other alternatives described in this section. Notwithstanding the foregoing, the notice and 60-day negotiation period required by this paragraph shall not apply, however, to disputes, claims, or controversies concerning intellectual property and small claims court claims, as discussed further below in the Exception provision.
Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided below in the Exception provision) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or use of the Service shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration and more information about JAMS and the JAMS rules at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS (contact information for JAMS, as well as copies of the JAMS rules and applicable forms, are available at www.jamsadr.com); and (c) Send one copy of the Demand for Arbitration to us at: legal@PeakDousa.com
When you initiate arbitration against us, you are required to pay up to $250 of the filing fee to initiate the arbitration. To the extent the filing fee for the arbitration exceeds that amount, PeakDo will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, PeakDo will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
PeakDo and you understand that, absent this mandatory arbitration provision, PeakDo and you would have the right to sue in court and have a jury trial. PeakDo and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The decision of the arbitrator will be in writing and binding and conclusive on PeakDo and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. PeakDo and you agree that dispositive motions, including without limitation, motions to dismiss and motions for summary judgment will be allowed in the arbitration. The arbitrator must follow these Terms and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. Notwithstanding the foregoing, PeakDo and you agree not to seek any attorney’s fees and expert witness costs unless the arbitrator finds that a claim or defense was frivolous or asserted for an improper purpose.
Location of Arbitration. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For residents outside the United States, arbitration shall be initiated in the courts of the Northern District of California, and PeakDo and you agree to submit to the personal jurisdiction of the courts of the Northern District of California to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. If your claim is solely for monetary relief of $10,000 or less, and does not include a request for any type of equitable remedy, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the JAMS Rules.
Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. You and we agree that to the extent that either party has a good faith belief that a dispute falls within the jurisdiction of the small claims court in the U.S. county (or parish) of your residence, or of a small claims court with jurisdiction and venue over PeakDo, either party may elect to have such dispute adjudicated in such small claims court. Such election can be made by either party even after the other party initiates an arbitration. In such case, the party that initiated the arbitration agrees to dismiss or suspend the arbitration and seek to resolve the dispute in small claims court. You and we agree that in the situation where an arbitration is already initiated and one party invokes the small claims court option, any dispute regarding whether the dispute is properly within the jurisdiction of a small claims court shall be resolved by the small claims court in the first instance (unless it is unwilling to do so) and not the arbitrator or JAMS.
Class Action Waiver. PeakDo and you agree that PeakDo and you will resolve any disputes, claims or controversies on an individual basis, and that any claims brought under these Terms in connection with the Service will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. PeakDo and you further agree that PeakDo and you shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising under these Terms or in connection with the Service. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in federal court located in the Northern District of California.
30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out by emailing us atlegal@PeakDousa.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within the later of 30 days of your first use of the Service or within 30 days of the date any changes to these arbitration provisions became effective, as indicated in the “Last Updated Date to Section 20” above or in the date of PeakDo’s email to you notifying you of such change. Otherwise, you shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of this Section. If you opt-out of these arbitration provisions, PeakDo also will not be bound by them. If you do not affirmatively elect to opt out as described above, your use of the Service will be deemed to be your irrevocable acceptance of these Terms and any changes/updates to this section.
Changes to This Section. PeakDo will provide thirty (30) days’ notice of any changes to this section by posting on the Services. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Services.
General. If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect. In the event some or all of these arbitration provisions are determined to be unenforceable for any reason, or if a claim, dispute or controversy is brought that is found by a court to be excluded from the scope of these arbitration provisions, PeakDo and you agree to waive, to the fullest extent allowed by law, any trial by jury. This section shall survive any termination of your use of the Services. The terms of this section will also apply to any claims asserted by you against any present or future parent or affiliated company of PeakDo to the extent that any such claims arise out of your access to, and/or use of the Service, and/or the provision of content, services, and/or technology on or through the Service and will be binding on you, your heirs, successors, and assigns.
21. Export Control and Economic Sanctions Laws
You agree to comply fully with all U.S. and foreign export control and economic sanctions laws and regulations that apply to the Services, including restrictions on any use of the Service where data is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Service, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government export embargo, or that has been sanctioned by the Office of Foreign Assets Control, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
22. Government End Users
The Service is a “commercial item” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Service is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Service will be only those specified in this Agreement.
The failure of PeakDo to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of PeakDo. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. To access the Terms of Service for your territory please change the country setting on the Site by clicking the country link in the top right corner of the pages. If specific terms are not available, we will default to this English version.