Terms of Service
Last Updated: 6.22.2021
Welcome, and thank you for your interest in Whipped Cream, PBC (“Pumpkin Pie,” “we,” or “us”) and our website at www.pumpkinpie.com, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Pumpkin Pie regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
Arbitration NOTICE. Except for certain kinds of disputes described in Section 19, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND PUMPKIN PIE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 19.)
1. Pumpkin Pie Service Overview. We offer a social application that connects our users. The application allows users to take survey questions (“Survey Questions”) to find out their similarity or compatibility with other users (such as their friends and family). Users may also be able to chat and communicate with one another, and invite their friends and family to use the application. We may offer a free version of the Service or a premium version of the Service for which you may be required to pay fees (“Paid Service”).
2. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations.
3. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, phone number or other contact information, birth date, or a profile picture. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
4. General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable, provided that the foregoing will not limit any refund rights that you may have directly from the operators of the marketplace from which you obtained a copy of the mobile application associated with the Service.
Price. We reserve the right to determine pricing for the Service. We will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our website periodically for current pricing information. We may change the fees for any feature of the Service, including additional fees or charges, if we give you advance notice of changes before they apply. We, at our sole discretion, may make promotional offers with different features and different pricing to any of our customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
Promotional Trial. Pumpkin Pie may, at its sole discretion, offer a complimentary trial of a Paid Service of the Service (“Trial”) for a limited term as Pumpkin Pie may elect from time to time (such term, the “Trial Period”). For clarity, at the end of the Trial Period, you may lose access to certain features of the Service if you do not purchase an equivalent or greater level of Service. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding. Nothing in these Terms creates any obligation for Pumpkin Pie to provide you with a Trial of the Service.
Authorization. You authorize Pumpkin Pie and its third party payment processors to charge all sums for any Paid Service you purchase as described in these Terms or published by Pumpkin Pie, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Pumpkin Pie or its third party payment processors may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Subscription to Premium Features. The Service may include the option to purchase certain additional premium features and functionality on an individual basis, including through certain subscription-based plans with automatically recurring payments for periodic charges.
Delinquent Accounts. We may suspend or terminate access to the Service, including features of the Paid Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees.
Limited License. Subject to your complete and ongoing compliance with these Terms, we grant you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace on a mobile device that you own or control; and (b) access and use the Service.
License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant us an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights. The Service is owned and operated by Pumpkin Pie. The visual interfaces, graphics, design, compilation, information (including our Survey Questions), data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by us are protected by intellectual property and other laws. All Materials included in the Service are the property of Pumpkin Pie or its third party licensors. Except as expressly authorized by us, you may not make use of the Materials. We reserve all rights to the Materials not granted expressly in these Terms.
7. Interactions with Other Users
Assumption of Risk. You acknowledge that there are risks associated with using the Service and that you are voluntarily using the Service. You are solely responsible for your use of the Service, conduct on the Service, and online and offline interactions with any other person you connect with on or via the Service. You acknowledge that we do not routinely screen or verify the background of our users, and agree that we are not obligated to do so. However, we reserve total discretion and the right to conduct screenings of or inquiries into any of our users. You agree that you interact with any other person you connect with on or via the Service at your own risk and discretion and that you will take all reasonable precautions when interacting with them, including online or in person.
Disclaimer. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY USER, THE INFORMATION ABOUT ANY USER, OR ANY RESULT FROM A SURVEY QUESTION OFFERED ON THE SERVICE. FURTHER, WE DO NOT GUARANTEE THAT THE SERVICE WILL BE ABLE TO CONNECT YOU WITH ANY OTHER USER(S) OR THAT YOUR USE OF THE SERVICE WILL MEET YOUR EXPECTATIONS.
8. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. harass, threaten, demean, embarrass, deceive, or otherwise harm any other user of or person you meet on or via the Service;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
d. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
e. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) soliciting, collecting or disseminating personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
f. perform any fraudulent activity including:
i.claiming a false affiliation;
ii.falsely stating, impersonating, or otherwise misrepresenting your identity;
iii.providing false information, including your age, during account creation or when using the Service, or otherwise providing inaccurate or misleading information;
iv.creating more than one account or creating an account on behalf of anyone other than yourself without permission;
v.accessing, attempting to access, using, or attempting to use another user's account without authorization; and
vi.activities related to chain letters or pyramid schemes;
g. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
h. attempt to do any of the acts described in this Section 8 or assist or permit any person in engaging in any of the acts described in this Section 8.
9. User Content
9.1 User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
9.2 Limited License Grant to us. By providing User Content to or via the Service, you grant us a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. The Service may allow you to delete your account or User Content. You acknowledge and agree that it will take some time for us to completely remove your User Content from the Service. Until such time that your User Content is removed from the Service, your User Content may remain visible and accessible by other users of the Service and the licenses you grant under this Section 9 will remain effective notwithstanding any termination of these Terms.
9.3 Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
9.4 User Content Representations and Warranties. We disclaim any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
a.you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize us and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by us, the Service, and these Terms;
b.your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause us to violate any law or regulation;
c.your User Content is not and will not be objectionable, derogatory, defamatory, profane, indecent, pornographic, harassing, threatening, abusive, slanderous, embarrassing, hateful, or otherwise inappropriate, as determined by us at our sole discretion; and
d.your User Content does not and will not victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability.
9.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, we do not permit copyright-infringing activities on the Service.
10.Copyright and Intellectual Property Protection
10.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Whipped Cream, PBC
Attn: Legal Department (Copyright Notification)
188 Grand St, New York, NY 10013
10.2 Content of Notification. Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a.an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b.a description of the copyrighted work or other intellectual property that you claim has been infringed;
c.a description of the material that you claim is infringing and where it is located on the Service;
d.your address, telephone number, and email address;
e.a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or intellectual property owner, its agent, or the law; and
f.a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
1. Repeat Infringers. We will promptly terminate the accounts of users that are determined by us to be repeat infringers.
11. Third Party Terms
Third Party Services and Linked Websites. We may provide tools through the Service that enable you to export information[, including User Content,] to third party services, including through features that allow you to link your account on Pumpkin Pie with an account on the third party service, such as Twitter or Instagram, or through our implementation of third party buttons. By using one of these tools, you agree that we may transfer that information to the applicable third party service. Third party services are not under our control, and, to the fullest extent permitted by law, we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under our control, and we are not responsible for their content.
Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.
Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
Contests and Sweepstakes. We may have contests, sweepstakes, raffles, surveys, games or similar promotional events on the Service from time to time (each, a “Promotional Event”). No purchase is necessary to participate in any Promotional Event. Promotional Events are void where prohibited or restricted by law or where there are registration or bonding requirements. In order to be eligible, you must meet the eligibility requirements as provided in the applicable Promotional Event description page (“Promotional Event Page”) or elsewhere on the Service. A particular Promotional Event will start and end as indicated on the Promotional Event Page or elsewhere on the Service.
Contest: Judging and Winners. All contests are contests of skill. All winners will be selected on an objective basis. Odds of winning depend on the skill and number of people participating. The Promotional Event Page for a contest or the Service will generally indicate judging criteria and the number of winners to be selected. Judging will be done by Pumpkin Pie or its designee. Winners are subject to verification, including without limitation, verification of eligibility, compliance with the terms and conditions of the contest, and completion of any required documents. In the event of a tie based on the initial judging criteria, judges may compare the initially tied entries and make a determination of the winner in order to break the tie, or may provide additional prizes in the event of a tie. In the event of a dispute as to the identity of participants or winners, we will make the final determination as to identity. You agree that we have the sole right to decide all matters and disputes arising from any contest and that all of our decisions related to a contest are final and binding. We reserve the right to disqualify and prosecute to the fullest extent permitted by law any participant or winner who, in our reasonable suspicion, tampers with a contest, the entry or participation process, violates the terms of the contest, or acts in an unsportsmanlike or disruptive manner.
Prizes. If applicable, the Promotional Event Page or the Service will indicate: (i) the prizes to be awarded each winner; and (ii) the approximate retail value of each prize awarded and the aggregate approximate value of all prizes. No substitution, assignment or transfer of the prizes is permitted, except by Pumpkin Pie, which has the right to substitute a prize with another of comparable or greater value. Prizes awarded may be subject to third-party terms and conditions.
Taxes. You are responsible for all taxes and fees associated with the receipt and/or use of any prize. We have the right to withhold payment or any prize as we believe reasonably necessary for legal compliance, including any tax regulations. You may have to provide a social security number or taxpayer ID prior to the awarding of any prize.
Publicity Release. Each winner may be required to sign an affidavit of eligibility, liability release and a publicity release that, among other things, will allow us to use the winner’s name, photograph, likeness, voice, prize information, and biographical information for publicity and promotional purposes without further compensation where permitted by law. Except where prohibited, participation in a Promotional Event constitutes your consent to our use of your name, likeness, voice, opinions, biographical information, hometown and state for promotional purposes in any media without further payment or consideration.
General. We reserve the right to shorten, extend, modify, or cancel any Promotional Event, at our sole discretion, at any time and without notice, even though such action may affect your ability to win a prize. We are not responsible for any typographical or other error in printing or description of any Promotional Event. If applicable, a list of winners will be posted for a period of time on the Promotional Event Page or elsewhere on the Service. Individuals may request a list of winners by submitting a self-addressed, stamped, envelope to 34 3rd Ave, PO Box 139 New York, NY 10003 within 60 days of the end of any Promotional Event.
14. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Modifications are effective upon publication or your acceptance of the modified Terms. Except as expressly permitted in this Section 14, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
15. Term, Termination and Modification of the Service
Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 15.2.
Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Pumpkin Pie may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by deleting your accounts through your profile settings. If you delete your account, your account will be deactivated for 30 days and your profile information will no longer be visible to other users. During this 30 day period, you may choose to cancel deletion and reactivate your account. After 30 days, your account will be deleted from our system and you will need to create a new account and re-accept these Terms if you’d like to start using the Service again. Please note that upon account deletion (and unless you reactivate your account within 30 days), some of your User Content (such as prior posts, comments, and group messages) may still remain visible to others, though your display name on your prior posts will be removed. Also, please note that we may retain some information associated with your account after account deletion to comply with our legal obligations or for security purposes.
Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay us any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 7, 8, 9.2, 9.3, 9.4, 9.5, 13.4, 13.5, 13.6, 15.3, 16, 17, 18, 19 and 20 will survive.
Modification of the Service. We reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Except as otherwise expressly provided in the Terms, we will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
16. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Pumpkin Pie and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Pumpkin Pie Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
17. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PUMPKIN PIE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PUMPKIN PIE DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE ACCURATE, UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PUMPKIN PIE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR PUMPKIN PIE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING SURVEY QUESTIONS OR RESULTS OF SURVEY QUESTIONS, WILL CREATE ANY WARRANTY REGARDING ANY OF THE PUMPKIN PIE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Pumpkin Pie does not disclaim any warranty or other right that Pumpkin Pie is prohibited from disclaiming under applicable law.
18.Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PUMPKIN PIE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PUMPKIN PIE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 19.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE PUMPKIN PIE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PUMPKIN PIE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
19.Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and Pumpkin Pie in the most expedient and cost effective manner, and except as described in Sections 19.2 and 19.3, you and Pumpkin Pie agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PUMPKIN PIE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of Section 19.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) file suit in a court of law to address an intellectual property infringement claim.
Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 19 within 30 days after the date that you agree to these Terms by sending a letter to Whipped Cream, PBC, Attention: Legal Department – Arbitration Opt-Out, 34 3rd Ave, PO Box 139, New York, NY 10003 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Pumpkin Pie receives your Opt-Out Notice, this Section 19 will be void and any action arising out of these Terms will be resolved as set forth in Section 20.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
Arbitrator. Any arbitration between you and Pumpkin Pie will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Our address for Notice is: Whipped Cream, PBC, 34 3rd Ave, PO Box 139, New York, NY 10003. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Pumpkin Pie may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Pumpkin Pie must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by us in settlement of the dispute prior to the award, we will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
Fees. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND PUMPKIN PIE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Pumpkin Pie agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If we make any future change to this arbitration provision, other than a change to our address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to our address for Notice of Arbitration, in which case your account with Pumpkin Pie will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
Enforceability. If Section 19.7 or the entirety of this Section 19 is found to be unenforceable, or if we receive an Opt-Out Notice from you, then the entirety of this Section 19 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 20.2 will govern any action arising out of or related to these Terms.
Governing Law. These Terms are governed by the laws of the State of New York without regard to conflict of law principles. You and Pumpkin Pie submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in New York, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Contact Information. The Service is offered by Whipped Cream, PBC, located at 34 3rd Ave, PO Box 139, New York, NY 10003. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
21. Notice Regarding Apple. This Section 21 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Pumpkin Pie only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions about these Terms or the Service, please contact us at firstname.lastname@example.org.