Terms of Service
As of November 1st, 2017
By accessing this website and/or subscribing for the Service, you represent and warrant that you have read, understood, and agree (1) to be bound by the Agreement; (2) that you are above the age of majority and have the right, authority, and capacity to abide by this Agreement; and (3) that you agree to comply with all applicable laws and regulations concerning your access and use of the Service.
The Agreement provide that BINDING ARBITRATION will resolve all disputes between you and Pegara. 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 and your claims cannot be brought as a class action. Please review the Agreement below for the details regarding your agreement to arbitrate any disputes with Pegara. NOTHING IN THE AGREEMENT SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. If any provision or provisions of the Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall remain in full force and effect.
Pegara reserves the right, at any time and from time to time, to amend or to modify the Agreement without prior notice to you, provided that if any such alterations constitute a material change to the Agreement, Pegara will notify you by posting an announcement on the Website effective immediately at the time of posting. By continuing to access or use the Services after any such amendments or modifications, you agree to be bound by such amended or modified Agreement. If you do not agree to any change to the Agreement, please stop using the Services.
SOME JURISDICTIONS HAVE LEGISLATIONS WHICH MAY LIMIT CERTAIN PROVISIONS SUCH AS LIMITATIONS OF LIABILITY AND EXCLUSION OF CERTAIN WARRANTIES, AMONG OTHERS. TO THE EXTENT LEGALLY POSSIBLE, SUCH LIMITATION, EXCLUSION, RESTRICTION OR PROVISION MAY NOT APPLY TO YOU.
Eligibility & Registration
Registration is required to use the Services (an "Account"). You must provide accurate and complete information and keep your Account information updated. You are solely responsible for the activity that occurs on your Account, regardless of whether the activities are undertaken by you, your employees, or a third party (including your contractors or agents), and for keeping your Account password secure. You must notify us immediately of the breach of security or unauthorized use of your Account. Failure to comply with these requirements shall constitute a material breach of the Agreement and your account shall be immediately terminated.
For purposes of the Agreement, the term "Content" includes, without limitation, information, data, text, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services.
All Content added, created, uploaded, submitted, distributed, or posted to the Services by users ("User Content"), whether publicly posted or privately transmitted, is at the sole responsibility and discretion of the person who originated such User Content. You represent that all User Content provided by you is in compliance with all applicable laws, policies, and regulations including but not limited to Privacy Law and Intellectual Property Laws. You agree that all Content, including User Content, uploaded or accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom.
You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
Subject to the Agreement, we grant each user of a worldwide, non-exclusive, revocable, non-sublicensable, and non-transferable license to use the Services. Use, reproduction, modification, distribution, or storage of any Content for other than purposes of using the Services is expressly prohibited.
Rules of Conduct
As a condition of use, you promise not to use the Services for any purpose that is prohibited by the Agreement. You are responsible for all of your activity in connection with the Services.
You agree that you will not transmit, distribute, post, store, link, or otherwise traffic in Content, information, software, or materials on or through the Service that (i) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, offensive, profane, contains or depicts pornography that is unlawful, or is otherwise inappropriate as determined by us in our sole discretion, (ii) you know is false, misleading, untruthful, or inaccurate, (iii) constitutes unauthorized or unsolicited advertising, (iv) impersonates any person or entity, including any of our employees or representatives, or (v) includes anyone's identification documents or sensitive financial information.
You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers') infrastructure; (ii) interfere or attempt to interfere with the Services; (iii) bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services; (iv) run any form of auto-responder or "spam" on the Services; (v) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Website; (vi) harvest or scrape any Content from the Services; (vii) use the Services for high risk activities including but not limited to the operation of nuclear facilities, air traffic control, life support systems, or any other use where the failure of service could lead to death, personal injury, or environmental damage; or (viii) otherwise take any action in violation of our guidelines and policies.
You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including and without to limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national, and international laws and regulations.
We also reserve the right to access, read, preserve, and disclose any information we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request, (ii) enforce the Agreement, including investigation of potential violations, (iii) detect, prevent, or otherwise address fraud, security, or technical issues, (iv) respond to user support requests, (v) protect the rights, property, or safety of us, our users, and the public, or (vi) improve and/or maintain the Service.
Subscribers are restricted from registering multiple Accounts with the same billing details without consent of Pegara. Pegara shall, without notification to you, suspend Account or any other Account used by such Subscriber. The use of referral codes by multiple Accounts having the same billing profile is not allowed. Pegara also reserves the right to terminate a Subscriber's Account if it is targeted by malicious activity from other parties.
You are solely responsible for any reliance by you on the Services or other use you make of the Services. Comments, suggestions, or materials sent or transmitted to Pegara (collectively "Feedback"), shall be deemed to be not confidential and the property of Pegara. Pegara reserves the right to publish or use any responses, questions, or comments emailed to Pegara for any purposes.
Pegara shall take any action necessary to protect the Services, Subscribers, and third parties.
Use of the Network
Subscribers must comply with, and refrain from violations of, any right of any other person, entity, law, or contractual duty, including and without limitation to the laws of the United States and the laws of the state of California, and including and without limitation to those laws forbidding: (a) distribution of child pornography, (b) forgery, identity theft, misdirection, or interference with electronic communications, (c) invasion of privacy, (d) unlawful sending of commercial electronic messages or other marketing or electronic communications, (e) collection of excessive user data from children, or other improper data collection activities, (f) securities violations, wire fraud, money laundering, or terrorist activities, or (f) false advertising, propagating or profiting from frauds and unfair schemes. Subscribers will also comply with the affirmative requirements of law governing use of the Services, including but not limited to: (i) disclosure requirements, including those regarding notification of security breaches, (ii) records maintenance for regulated industries, and (iii) financial institution safeguards.
Assigned IP Adress
Each Subscriber will be assigned with an unique IP address. Subscribers shall use only those IP addresses that are assigned to them by Pegara, and shall not use any IP addresses outside of their assigned range. Subscribers shall not use any mechanism to exceed the amount of resources assigned to them through the Services, or to conceal such activities.
Subscribers may not use the Services to distribute, receive communications or data gleaned from, or execute any action directed by any type of injurious code, including but not limited to: (i) trojans, (ii) key loggers, (iii) viruses, (iv) malware, (v) botnets, (vi) denial of service attacks, (vii) flood or mail bombs, (viii) logic bombs, or (ix) other actions which Pegara at its sole discretion determines to be malicious.
Subscribers shall not send bulk email utilizing their resources on the Services. Subscribers shall comply with all laws regarding the sending of commercial electronic messages or other marketing or electronic communications. Subscribers are forbidden from taking any action that would result in their IP addresses, or any IP address associated with Pegara or other Subscribers, being placed on the Spamhaus.org blacklist. Pegara reserves the sole and absolute right to determine whether an email violation has occurred.
Invasion of Privacy, Defamation, or Harassment
Subscribers may not use the Services in a manner that would violate the lawful privacy rights of any person, or to publish or republish defamatory or libelous statements, or to harass or embarrass. Pegara shall have the sole and absolute discretion to make such determinations.
Violation of Copyright, Trademark, Patent, or Trade Secret
Subscribers may not use the Services in violation of the copyrights, trademarks, patents, or trade secrets of third parties, nor shall they utilize the Services to publish such materials in a manner that would expose them to public view in violation of the law. The provisions of the Digital Millennium Copyright Act of 1998 ("DMCA") (as required under 17 U.S.C. §512) and all other applicable international trademark, copyright, patent, or other intellectual property laws will apply to issues presented by allegations of copyright violations by third parties. Pegara will, in appropriate circumstances, terminate the accounts of repeat violators. If a third party believes that a Pegara Subscriber is violating its intellectual property rights, it should notify us by email at email@example.com. A notification should include information reasonably sufficient to permit Pegara to locate the allegedly infringing material, such as the IP address or URL of the specific online location where the alleged infringement is occurring.
Subscriber shall comply with all applicable export and import control laws and regulations in its use of the Services, and, in particular, Subscriber shall not utilize the Services to export or re-export data or software without all required United States and foreign government licenses. Subscriber assumes full legal responsibility for any access and use of the Services from outside the United States, with full understanding that the same may constitute export of technology and technical data that may implicate export regulations and/or require export license. Should such a license be required, it shall be Subscriber's responsibility to obtain the same, at Subscriber's sole cost and expense, and in the event of any breach of this duty resulting in legal claims against Pegara, Subscriber shall defend, indemnify, and hold Pegara harmless from all claims and damages arising therefrom.
Access Code Protection
Subscribers shall utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords.
Subscribers shall notify Pegara if and when they learn of any security breaches regarding the Services, and shall aid in any investigation or legal action that is taken by authorities and/or Pegara to cure the security breach.
Third Party Services
The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between their operators and us. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods, or services available on or through any such website or resource. It is your responsibility to protect your system from items such as viruses, worms, Trojan horses, and other items of a destructive nature.
Payments and Billing
Pegara accepts major credit cards. Please note that any payment terms presented to you in the process of using or signing up for paid Services are deemed part of this Agreement.
We use third-party payment processors (the "Payment Processors") to bill you through a payment account linked to your Account on the Services (your "Billing Account") for use of the paid Services. The processing of payments may be subject to the terms, conditions, and privacy policies of the Payment Processors in addition to this Agreement. We are not responsible for error by the Payment Processors. By choosing to use paid Services, you agree to pay us, through the Payment Processors, all charges at the prices then in effect for any use of such paid Services in accordance with the applicable payment terms. You also authorize us, through the Payment Processors, to charge your chosen payment provider (your "Payment Method"), and agree to make the payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment
Billing and Terms
The term of this Agreement shall be hourly or monthly, to commence on the date that the Subscriber signs up electronically for the Services by creating an Account. All invoices are denominated, and Subscriber must pay, in U.S. Dollars.
For monthly service, Subscribers are billed monthly between 2nd and 5th day of each month, with payment due no later than ten (10) days past the invoice date. On rare occasions, a Subscriber may be billed an amount up to the Subscriber's current balance in an effort to verify the authenticity of the Subscriber's account information. Monthly fees and renewal fees will be billed at the rate agreed to at the time of purchase. This process ensures that Subscribers without a payment history are not subjected to additional scrutiny. Subscribers are entirely responsible for the payment of all taxes.
Hourly Subscribers shall be billed at between 2nd and 5th day of each month with payment due no later than ten (10) days past the invoice date. Subscribers are entirely responsible for the payment of all taxes. On rare occasions, a Subscriber may be billed an amount up to the Subscriber's current balance in an effort to verify the authenticity of the Subscriber's account information. For specific pricing policies, please refer to https://www.gpueater.com/#pricing.
You may cancel the Services at any time by logging into your Control Panel at https://www.gpueater.com/console/servers. At cancellation, your Account will be deactivated and you will no longer be able to log into our site and/or have any access to the Services. Except in the case of subscription commitments you have agreed to, which shall be nonrefundable, as permitted by law, if you cancel, you agree that fees for the first month of Services and any start-up costs associated with setting up your Account ("Start-up Costs") shall be nonrefundable, as permitted by law. With the exception of any subscription commitments agreed by you, if you paid fees in advance for any period longer than one month, then you may, with the exception of fees for the first month of Services and any Start-up Costs, obtain a refund on a pro rata basis for the period remaining after you cancel.
Some of the paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO https://www.gpueater.com/console/servers .
YOU MUST PROVIDE CURRENT, COMPLETE, AND ACCURATE INFORMATION. YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSORS IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT https://www.gpueater.com/console/servers. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
Payments not made within ten (10) days of invoicing, the account will be deemed to be in default. Pegara may suspend service to such account and take legal actions to collect the full amount due, including any attorneys' fees and costs.
Limitation of Liability
IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS ONE MONTH PERIOD, EVEN IF PEGARA HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. SUBSCRIBER ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT PEGARA WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. SUBSCRIBER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST PEGARA ARISING OUT OF SUBSCRIBER'S PURCHASE OR USE OF THE SERVICES, OR ANY CONDUCT OF PEGARA'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO OR USE OF THE SERVICES.
IN ADDITION, YOU AGREE THAT PEGARA IS NOT RESPONSIBLE FOR ANY DATA COMPILED BY OUR SERVICES AND THAT PEGARA WILL NOT BE LIABLE, IN ANY MANNER, AS A RESULT OF YOUR EXPOSURE TO ANY DEFAMATORY, LIBELOUS, THREATENING, UNLAWFULLY HARASSING, OBSCENE OR OTHERWISE UNLAWFUL CONTENT OR DATA. IN NO EVENT SHALL PEGARA, OR ANY THIRD PARTY PROVIDER OF ANY COMPONENT OF THE SERVICES OR OF ANY INFORMATION DELIVERED AS PART OF THE SERVICES, BE LIABLE TO YOU AND/OR ANY PARTY FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES, CONTENT, PRODUCTS, THE USE OR INABILITY TO USE THIS WEBSITE, OR ANY LINKED WEBSITE, INCLUDING AND WITHOUT LIMITATION TO, LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSSES, LOSS OF PROGRAMS OR OTHER DATA, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, EVEN IF PEGARA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LIABILITY ASSOCIATED WITH ANY VIRUSES WHICH MAY INFECT YOUR COMPUTER EQUIPMENT.
THE FOREGOING LIMITATIONS SHALL BE APPLIED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Subscriber shall keep confidential any confidential information to which it is given access, and shall cooperate with Pegara's efforts to maintain the confidentiality thereof. Subscriber shall not publish to third parties or distribute information or documentation that Pegara provides for purposes of operating and maintaining its systems, including material contained in estimates, invoices, work orders, or other such materials.
Subscriber is solely responsible for the preservation of Subscriber's data, which Subscriber saves onto its virtual server (the "Data"). EVEN WITH RESPECT TO DATA AS TO WHICH SUBSCRIBER CONTRACTS FOR BACKUP SERVICES PROVIDED BY PEGARA, TO THE EXTENT PERMITTED BY APPLICABLE LAW, PEGARA SHALL HAVE NO RESPONSIBILITY TO PRESERVE DATA. PEGARA SHALL HAVE NO LIABILITY FOR ANY DATA THAT MAY BE LOST, OR UNRECOVERABLE, BY REASON OF SUBSCRIBER'S FAILURE TO BACKUP ITS DATA OR FOR ANY OTHER REASON.
YOU SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS US, OUR AFFILIATES, PARENTS, SUBSIDIARIES, ANY RELATED COMPANIES, LICENSORS AND PARTNERS, AND EACH OF OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, DIRECTORS, SUPPLIERS AND REPRESENTATIVES FROM ALL LIABILITIES, CLAIMS, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, THAT ARISE FROM OR RELATE TO YOUR (OR ANY THIRD PARTY USING YOUR ACCOUNT OR IDENTITY IN THE SERVICES) USE OR MISUSE OF, OR ACCESS TO THE SERVICES, CONTENT, OR OTHERWISE FROM YOUR USER CONTENT, VIOLATION OF THE AGREEMENT OR OF ANY LAW, OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL ASSIST AND COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
Termination and Access
Pegara reserves the right, in our sole discretion, to terminate your access to all or any part of the Services at any time, with or without notice, effective immediately, including but not limited to as a result of your violation of any of the Agreement or any law, or if you misuse system resources, such as, by employing programs that consume excessive network capacity, CPU cycles, or disk IO. Any such termination may result in the forfeiture and destruction of information associated with your Account. Pegara may provide prior notice of the intent to terminate Services to you if such notice will not, in Pegara's discretion, run counter to the intents and purposes of the Agreement. Except as otherwise set forth hereunder, any and all fees paid hereunder are non-refundable and any and all fees owed to Pegara before such termination shall be immediately due and payable, including any liabilities that may have been incurred prior to termination such as Pegara's costs for collection (including attorneys' fees) of any such charges or other liabilities. Upon termination, any and all rights granted to Subscriber by this Agreement will immediately be terminated, and Subscriber shall promptly discontinue all use of the Services. If you wish to terminate your Account, you may do so by following the instructions on the Website or through the Services. All provisions of these Terms of Service that by their very nature survives termination, shall survive termination, including and without limitation to, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
In other words, if you violate the Agreement, then we have the right to put a hold on your account. These actions are reserved for the most drastic offenses; you will more likely receive a warning and will be able to continue using our services as long as the undesirable behavior ceases. You, however, are free to terminate your account.
Choice of Law, Venue, Consent to Email Service, and Waiver of Hague Convention Service Formalities
Any claim arising hereunder shall be construed in accordance with the substantive and procedural laws of the State of California, without regard to principles of conflict of laws. You agree that the exclusive jurisdiction and venue of the state and Federal courts of San Francisco County, California governs any dispute arising from or relating to the subject matter of the Agreement. Subscriber consents to service of process via email at the email address(es) provided by Subscriber, and waives any requirement under the Hague Convention or other judicial treaty requiring that legal process be translated into any language other than English.
You and Pegara agree to the following dispute resolution procedure: in the event of any controversy, claim, action, or dispute arising out of or related to: (i) the Website; (ii) this Agreement; (iii) the Services; (iv) the breach, enforcement, interpretation, or validity of this Agreement; or (v) any other dispute between you and Pegara ("Dispute"), the party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent (1) if to Pegara, Inc. at: 4000 Barranca Parkway, Suite 250, Irvine, CA 92604 or (2) if to you at: your last-used billing address or the billing and/or shipping address in your Account information. Both you and Pegara agree that this dispute resolution procedure is a condition precedent that must be satisfied prior to initiating any arbitration or filing any claim against the other party.
Mandatory Arbitration Agreement and Class Action Waiver
In the interest of resolving disputes between you and Pegara in the most expedient and cost effective manner, you and Pegara 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 PEGARA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This Section will not apply to disputes arising under the U.S.-EU/U.S.-Swiss Safe Harbor frameworks, which shall instead be administered under the rules for the resolution of disputes arising under the Safe Harbor frameworks specified in the Pegara Safe Harbor filing with the U.S. Department of Commerce.
Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and Pegara will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Expedited Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA") in San Francisco, California.
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 such other party has not provided a current physical address, then by electronic mail ("Notice"). Pegara's address for Notice is: Pegara, Inc., 4000 Barranca Parkway, Suite 250, Irvine, CA 92604. The Notice 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 is received, you or Pegara may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Pegara must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Pegara will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Pegara in settlement of the dispute prior to the arbitrator's award; or (iii) $1,000.
YOU AND PEGARA 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 Pegara 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.
If Pegara makes any future change to this arbitration provision, other than a change to Pegara's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Pegara's address for Notice, in which case your account with Pegara will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
If this Section is found to be unenforceable or if the entirety of this Section is found to be unenforceable, then the entirety of this Section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in the Agreement will govern any action arising out of or related to these Terms. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Neither you nor Pegara shall be liable for nonperformance of the terms herein to the extent that either you or Pegara are prevented from performing as a result of any act or event which occurs and is beyond your or Pegara's reasonable control, including, without limitation, acts of God, war, unrest or riot, strikes, any action of a governmental entity, weather, quarantine, fire, flood, earthquake, explosion, utility or telecommunications outages, Internet disturbance, or any unforeseen change in circumstances, or any other causes beyond either party's reasonable control. The party experiencing the force majeure shall provide the other party with prompt written notice thereof and shall use reasonable efforts to remedy effects of such force majeure.
You are granted a limited, non-exclusive right to create a hypertext link to the Website found at https://www.gpueater.com; provided such link does not portray Pegara and/or its affiliates or any of their respective products and services in a false, misleading, derogatory, or otherwise defamatory manner. This limited right may be revoked at any time. You may not use, frame or utilize framing techniques to enclose any Pegara trademark, logo, or other proprietary information, including the images found at the Website, the content of any text or the layout/design of any page or form contained on a page without Pegara's express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or proprietary right of Pegara or any third party.
The Website contains many of the valuable trademarks, service marks, names, titles, logos, images, designs, copyrights, and other proprietary materials owned, registered and used by Pegara, Including but not limited to, the mark "Pegara". Pegara and the Pegara product names referenced in the Website are trademarks, service marks, or registered trademarks of Pegara. Any unauthorized use of the same is strictly prohibited and Pegara reserves all rights. No use of any Pegara trademark may be made by any third party without express written consent of Pegara. Other products and company names mentioned in the Website may be the trademarks of their respective owners.
Elements of Pegara's Website are protected by trade dress, trademark, unfair competition, and other laws and may not, unless otherwise permitted hereunder, be copied in whole or in part. No logo, graphic, or image from the Website may be copied or retransmitted without Pegara's express written permission. The images, text, screens, web pages, materials, data, Content, and other information used and displayed on the Website are the property of Pegara or its licensors and are protected by copyright, trademark and other laws. In addition to our rights in individual elements of the Website, Pegara owns copyright or patent rights in the selection, coordination, arrangement, and enhancement of any images, text, screens, web pages, materials, data, Content, and other information used and displayed on the Website. You may copy such images, text, screens, web pages, materials, data, Content, and other information used and displayed on the Website for your personal or educational use only, provided that each copy includes any copyright, trademark or service mark notice or attribution as they appear on the pages copied. Except as provided in the preceding sentence, none of such images, text, screens, web pages, materials, data, Content, and other information used and displayed on the Website may be copied, displayed, distributed, downloaded, licensed, modified, published, reposted, reproduced, reused, sold, transmitted, used to create a derivative work, or otherwise used for public or commercial purposes without the express written permission of Pegara.
This Agreement, including all related agreements and policies incorporated by reference herein, constitutes the entire agreement between the parties related to the subject matter hereof and supersedes any prior or contemporaneous agreement between the parties relating to the Services. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. In order for any waiver of compliance with the Agreement to be binding, we must provide you with written notice of such waiver through one of our authorized representatives. If any provision of this Agreement is prohibited by law or held to be unenforceable, that provision will be severed and the remaining provisions hereof shall not be affected such that this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. This Agreement may be signed electronically or, as set out above, your access and use of the Services will manifest your consent to this Agreement. The Agreement are personal to you, and are not assignable, transferable, or sublicensable by you except with our prior written consent. We may assign, transfer, or delegate any of our rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Agreement and neither party has any authority of any kind to bind the other in any respect. The section and paragraph headings in the Agreement are for convenience only and shall not affect their interpretation. All references to "laws," "rules," or "regulations" references any and all applicable laws, rules and regulations, whether domestic or foreign. Unless otherwise specified in the Agreement, all notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to firstname.lastname@example.org.
You may contact us at the following address:
4000 Barranca Parkway, Suite 250, Irvine, CA 92604
Effective Date: November 1, 2017
Copyright 2017 Pegara, Inc. All rights reserved. No part of Pegara's Website may be reproduced, modified, or distributed in any form or manner without the prior written permission of Pegara.