1. WHAT ARE THESE TERMS OF SERVICE? These Terms of Service (“Terms”) are a binding contract that govern your access to and use of our various products, services and technology that we may make available to you (collectively, the “Pepper Platform”). These Terms are between you (whether an individual or organization) and both of Pomegranate Technologies, Inc. dba “Pepper” and Pomegranate Technologies Canada, Inc, (“Pepper”, “we”, “our” or “us”). Access to and use of the Pepper Platform is available only to individuals who are at least 18 years of age and can form legally binding contracts under applicable law. By using the Pepper Platform, including via our mobile app (the “Pepper App”), our websites or by creating a User Account (as defined below), you are agreeing to these Terms. Please read them carefully, and if you don’t agree with what they require, you may not use the Pepper Platform. We may amend these Terms from time to time, and the revised version will be effective when posted via the Pepper App, on our website or as otherwise made available to you. Any revised Terms will supersede previous versions. While we will use reasonable efforts to provide you advance notice of any important revisions, we recommend that you regularly review these Terms because your continued use of the Pepper Platform after we make any changes to them constitutes your agreement to any updated version. These Terms apply to all users of the Pepper Platform, including you, whether you are an actual or potential foodservice establishment customer of a Supplier (a “Foodservice Establishment”) or an actual or potential supplier (a “Supplier”) to a Foodservice Establishment. IMPORTANT ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION PROVISION REQUIRING YOU TO RESOLVE ANY DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. PLEASE REVIEW THE ARBITRATION PROVISION IN SECTION 17 CAREFULLY. YOUR AGREEMENT TO THESE TERMS INDICATES YOUR EXPRESS ACKNOWLEDGEMENT AND AGREEMENT THAT YOU HAVE READ AND UNDERSTAND HOW THIS ARBITRATION PROVISION WORKS.
3. WHAT IS THE PEPPER PLATFORM? The Pepper Platform currently provides a centralized platform for Foodservice Establishments and Suppliers to communicate, place, track and manage orders between one another (whether you are a Foodservice Establishment or a Supplier, any data, materials or other information transmitted via the Pepper Platform is referred to as “Your Information”). You understand and agree that the Pepper Platform serves as a communication platform. Any sale of, and any subsequent payment processing related to, products sold by a Supplier to a Foodservice Establishment will be done directly between such parties outside of the Pepper Platform -- Pepper is not part of that transaction. We currently do not charge you to use the Pepper Platform. Over time, we may offer various paid products and services, which will be subject to additional terms and conditions presented to you prior to any such use.
4. COMMUNICATIONS. Foodservice Establishments and Suppliers can communicate directly with one another within the Pepper Platform, and in some instances we may communicate on their behalf. When you provide us with the contact information of a Foodservice Establishment or a Supplier (as appropriate), you represent and warrant that this Foodservice Establishment or Supplier has consented to you providing this information to us and to being contacted by us on your behalf via your required manner (e.g., email, phone, SMS), and you consent for us to contact them as well. Whether you are a Foodservice Establishment or a Supplier, any parties that you communicate with using the Pepper Platform are chosen by you in your sole discretion. We do not vet or screen the qualifications, suitability or any other criteria of any particular Foodservice Establishment or Supplier. The decision to engage with such Foodservice Establishment or Supplier is yours alone.
5. YOUR USER ACCOUNT. If you are a Foodservice Establishment, you’ll need to set up a Pepper user account (“User Account”) to get the most out of the Pepper Platform. While you may have some limited browsing capabilities without one, in order to communicate with Suppliers via the Pepper Platform, a User Account is required (as a Supplier, you don’t need as User Account to just reply to a message from a Foodservice Establishment). To set up a User Account, we require your business name, business address, first and last name and phone number. Your User Account information must be true, accurate and complete, and updated from time to time as needed. Your User Account is personal to you, it may not be transferred without our prior written consent and you are responsible for all activity that occurs under it. You are required to let us know immediately if you suspect any unauthorized use of your User Account, and we have the right to temporarily or permanently suspend or deactivate it if it contains incomplete or inaccurate information or if we suspect fraudulent activity.
6. YOUR USE OF THE PEPPER PLATFORM. If you are entering into these Terms on behalf of an organization, you will be able to give individuals within your organization access to the Pepper Platform (each, an “Authorized User”), which you may do directly in the Pepper App, provided that you inform each Authorized User of all relevant policies and requirements for such use. Each Authorized User will be required to agree to these Terms before receiving access to the Pepper Platform. You are and remain responsible for all actions of your Authorized Users, and we may (but have no obligation to) review conduct for compliance purposes. We are not responsible for any of Your Information or the way in which you or your Authorized Users choose to use the Pepper Platform to store, process or transmit any of Your Information.
7. WARRANTY DISCLAIMER. THE PEPPER PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, WE DO NOT MAKE ANY SPECIFIC PROMISES ABOUT ANY ASPECT OF THE PEPPER PLATFORM (INCLUDING ABOUT ANY PARTICULAR CUSTOMER OR SUPPLIER) AND WHETHER ABOUT ITS SPECIFIC FUNCTIONALITY, RELIABILITY, QUALITY, AVAILABILITY OR ABILITY TO MEET YOUR SPECIFIC NEEDS OR OTHERWISE, OR THAT YOUR USE OF THE PEPPER PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTIES TO BE DISCLAIMED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED.
8. LIMITATION OF LIABILITY. WE WILL NOT BE RESPONSIBLE FOR LOST PROFITS, LOST REVENUES, LOSS OR CORRUPTION OF DATA, FINANCIAL LOSSES, OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BY YOU OR ANY THIRD PARTY. OUR TOTAL LIABILITY FOR ANY CLAIMS UNDER THESE TERMS OR IN RELATION TO THE PEPPER PLATFORM GENERALLY, INCLUDING FOR ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED, IS LIMITED TO THE GREATER OF US$100.00 AND THE AMOUNT YOU’VE PAID TO US IN THE PAST 12 MONTHS. IN ALL CASES, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE. YOU HEREBY WAIVE ANY AND ALL CLAIMS FOR DAMAGES OR LIABILITY BEYOND THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE, INCLUDING THOSE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY AND/OR ANY OTHER GROUNDS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR FOR CERTAIN BEHAVIORS (SUCH AS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), SO SOME OF THE ABOVE PROVISIONS MAY NOT APPLY TO YOU IN ANY GIVEN SITUATION. THE PROVISIONS IN THIS SECTION 8 APPLY TO THE MAXIMUM EXTENT ALLOWED BY LAW.
9. INDEMNIFICATION. You agree to indemnify and hold us harmless from any and all claims, actions, costs, damages, penalties, fines, demands, losses, liabilities and expenses (including attorneys' fees and court costs) arising out of or in connection with the following: (a) your use of the Pepper Platform; (b) your breach or violation of these Terms; (c) your violation of applicable law; (d) any content you provide, including Your Information; or (e) your violation of the rights of any third party (including intellectual property rights, rights of privacy and other proprietary rights). We reserve the right to assume the exclusive defense of any of the foregoing, and you agree not to settle any claim without our prior written consent. You agree that the obligations in this Section 9 will survive any termination of these Terms, your User Account or your access to the Pepper Platform generally. 10. TEXT MESSAGES AND TELEPHONE CALLS. Unless you opt out, you agree that we may contact you (through the Pepper Platform or otherwise) by telephone, SMS or text message (including through the use of an automatic telephone dialing system) at the phone number(s) you have provided to us. You understand that you are not required to provide this consent as a condition of purchasing any experiences, goods or services. You may opt out of receiving telephone calls, SMS or text messages from us at any time by emailing us at email@example.com. We may also opt to contact you via email, Whatsapp or fax unless you revoke this permission in writing.
11. INTELLECTUAL PROPERTY
Our Limited License to You. Subject to these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-commercial, non-transferable license to access and use the Pepper App (and any related software and services we provide to you in connection with it) on your personal device solely for your use of the Pepper Platform for its intended purpose. Any rights not expressly granted herein are reserved by us and our licensors. The rights we are granting you are subject to the following restrictions: (i) you are not permitted to copy, modify, distribute, sell or lease any part of the Pepper Platform or associated software, nor may you reverse engineer or attempt to extract the source code of the Pepper Platform or associated software, except to the extent that any local laws prohibit these restrictions or you have our written permission to do so; (ii) you may not do anything that places an unreasonably large load on the Pepper Platform’s infrastructure, nor may you spam or flood our systems or use robots, spiders, scrapers or other automated means to access the Pepper Platform; and (iii) you may not attempt to interfere with the proper working of the Pepper Platform or attempt to bypass any of our security measures to access the Pepper Platform.
The Pepper Platform. Using the Pepper Platform does not give you ownership of any intellectual property rights in it or to the content you access, and except for the limited license granted to you above, all rights therein (including all intellectual property) belong exclusively to us, our affiliates or our licensors. You may not use content from the Pepper Platform without our express prior written consent or as otherwise permitted by law. These Terms do not grant you the right to use any trademarks, branding or logos used in the Pepper Platform or otherwise, including in any advertising or publicity or to imply our endorsement in any way, unless you have our prior written consent to do so. You may not obscure or alter any legal notices displayed in, along with or in connection with the Pepper Platform.
Your Information. As between us and you, you own all Your Information. Subject to these Terms, you (for you and on behalf of and with respect to all of your Authorized Users) grant us and our partners a worldwide, non-exclusive license to access, use, host, store, reproduce, modify, create derivative works based on, communicate, publish, publicly perform, publicly display and distribute Your Information only as reasonably necessary for the following purposes: (i) to provide, maintain and update the Pepper Platform; (ii) to prevent or address service, security, support or technical issues; (iii) as required by law; and (iv) as expressly permitted in writing by you. You represent and warrant that you have secured all rights in and to Your Information from each of your Authorized Users as may be necessary to grant this license. Additionally, from time to time you may be able to submit content to us (such as if you participate in a user forum, share tips to the Pepper Platform’s user community or comment on a blog post). You retain ownership of this content, but you represent and warrant that you have the right to provide it to us. When you do so, you are granting us and our partners a worldwide, non-exclusive license to access, use, host, store, reproduce, modify, create derivative works based on, communicate, publish, publicly perform, publicly display and distribute it as well as your name, voice and/or likeness if also submitted by you. This license continues even if you stop using the Pepper Platform. If you submit feedback or suggestions about the Pepper Platform, we may use your feedback or suggestions without obligation to you, and any content you submit in such instance is deemed non-confidential. You may not submit any defamatory, libelous, hateful, violent, obscene, pornographic, unlawful or otherwise offensive content, or content that constitutes “spam” or unsolicited advertising. We have the right, but not the obligation, to review, monitor or remove your content at any time for any reason without notice to you.
12. THIRD PARTY SERVICES AND CONTENT. The Pepper Platform may be made available or accessed in connection with services and content (including advertising) controlled by third parties with different terms of service and privacy policies. We do not endorse these third party services and content and we are not responsible or liable for any of their products or services. Additionally, Apple Inc., Google, Inc., Microsoft Corporation and/or BlackBerry Limited will be a third party beneficiary to these Terms if you access the Pepper Platform using applications developed for Apple iOS, Android, Microsoft Windows or Blackberry-powered mobile devices, respectively. These third party beneficiaries are not parties to these Terms and are not responsible for the provision or support of the Pepper Platform in any manner. Your access to the Pepper Platform using these applications or devices is subject to their respective terms of service and privacy policies.
13. ACCESSING THE PEPPER PLATFORM. Using the Pepper Platform (whether from a mobile device or computer) will require various levels of data network access. It is your responsibility to obtain this access, subject to your mobile network's data and messaging rates and fees. You may need to acquire and update compatible hardware or devices to use and update the Pepper Platform. We do not guarantee that the Pepper Platform, or any portion of it, will function on any particular hardware or device. The Pepper Platform may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications in general. While we use industry standard backup systems and protocols (either directly or through a third party), we recommend that you maintain a backup of all of Your Information. 14. PUBLICITY. You grant us the right to use your company name and logo as a reference for marketing or promotional purposes on our website, the Pepper App and in other public or private communications with our existing or potential customers (subject to any standard trademark usage guidelines you make available to us from time to time). Please email us at firstname.lastname@example.org to revoke this right.
15. MISCELLANEOUS. You may not assign these Terms or any of your rights or obligations hereunder, whether in whole or in part, without our prior written approval. We may assign these Terms without your consent to a related or affiliated entity or in the event of a sale of all or substantially all of our assets, stock or business, or to a successor by merger, reorganization or other corporate transaction. Any purported assignment in violation of the immediately preceding sentence is void. No joint venture, partnership, employment or agency relationship exists between you and us as a result of these Terms or your use of the Pepper Platform. If any provision of these Terms is held to be invalid or unenforceable, that provision shall be enforced to the maximum extent permissible and the remaining provisions shall remain in full force and effect. Section headings are included solely for convenience or reference, and if there is any conflict between such headings and the text of these Terms, the text shall control. Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless we acknowledge and agree to it in writing, and it is not a waiver of our right to do so later. Force majeure events may prevent us from providing various products or services or use of the Pepper Platform generally, and we will have no liability under those circumstances. Please note that when we use the words “include” or “including” throughout these Terms, we mean “including, but not limited to” but do this for ease of reading. Provisions that by their nature are intended to survive the termination of these Terms or your use of the Pepper Platform will survive. These Terms expressly supersede any prior agreements or arrangements we may have with you. We may terminate these Terms or your use of any Pepper Platform, or generally cease offering or deny access to any portion of the Pepper Platform, at any time in our sole discretion. You may stop using our Pepper Platform at any time, or terminate your User Account at any time on written notice to us, subject to you payment of any amounts owed to us at the time of such termination. If we believe there has been a violation of these Terms, we have the right to investigate and notify law enforcement if we deem necessary. As part of any investigation, we cooperate with law enforcement and will take legal whatever action we deem appropriate under the circumstances.
16. CONTACTING US. If you have any questions about these Terms or the Pepper Platform generally, please write to us at email@example.com or Pomegranate Technologies, Inc., 511 West 25th Street, Suite 4-105, New York, NY 10001.
17. MUTUAL ARBITRATION PROVISION. Before bringing a formal legal case, including any dispute or claim related to or arising out of these Terms ("Dispute"), we encourage you to first try contacting us directly. Most Disputes can be resolved through discussion. Otherwise, the following applies:
Arbitration. If a Dispute is not resolved through informal negotiations, you and Pepper agree to resolve any and all Disputes (except those Disputes expressly excluded below) through final and binding arbitration ("Arbitration Agreement"). This Arbitration Agreement shall be governed by the Federal Arbitration Act and evidences a transaction involving commerce. The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the "AAA Rules") of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website (www.adr.org). Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If you are unable to pay such costs, Pepper will pay all arbitration fees and expenses. Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the "Class Action Waiver" described in the fourth bullet point in this Section 17 below.
Excluded Disputes. You and Pepper agree that the following Disputes are excluded from this Arbitration Agreement: (i) any Dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (ii) individual claims in small claims court; (iii) any claim that an applicable federal statute expressly states cannot be arbitrated; and (iv) any claim for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Arbitration Agreement may be rendered ineffectual.
WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION. You and Pepper agree to bring any Dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class or collective action ("Class Action Waiver"). Regardless of anything else in this Arbitration Agreement and/or the applicable AAA Rules or AAA Consumer Rules, the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator.
Rules/Standards Governing Arbitration Proceeding. A party who wishes to arbitrate a Dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in court. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in the city or county where you reside, unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator's decision/award.Severability. You and Pepper agree that if any portion of this Section 17 is found illegal or unenforceable, that portion will be severed and the remainder of this Section 17 will be given full force and effect.
18. GOVERNING LAW AND JURISDICTION. Except for the Arbitration Agreement in Section 17, which is governed by the Federal Arbitration Act and except as may be prohibited by the law of the State in which you primarily reside, this Agreement is governed and interpreted pursuant to the laws of the State of New York, U.S.A. notwithstanding any principles of conflicts of law. For all Disputes not subject to arbitration, You agree to submit to the personal and exclusive jurisdiction and venue of the courts located within the county of New York, New York.
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