Last Updated: October 4, 2016
PieShell, LLC, or our subsidiaries or other affiliates (collectively, “PieShell”, “We”, or “Us”) is an online crowdfunding platform for people and entities seeking to raise funds for their own Projects and to contribute to the Projects of others. In these Terms, we refer to those raising funds as “Project Owners” and to their fundraising campaigns as “Projects.” We refer to those contributing funds as “Contributors” and to the funds they contribute as “Contributions.” Project Owners, Contributors and others accessing or using of the Services are referred to collectively as “Users.” By accessing or using the Services, you agree to be bound by these Terms and all of the terms incorporated herein by reference. If you do not agree to these Terms, you must not access or use the Services.
These Terms expressly supersede any prior agreements or arrangements PieShell may have with you. PieShell may immediately terminate these Terms or suspend, discontinue any Services with respect to you or terminate your access to the Service, or generally cease offering or deny access to the Services or any portion thereof, at any time, for any reason or no reason, without notice. You agree that PieShell shall not be liable to you or any third party for any such suspension, discontinuance or termination and that you will not be entitled to a refund of any amounts that you have already paid to us.
PieShell may amend the Terms related to the Services from time to time. Amendments will be effective upon PieShell posting such updated Terms at this location or the amended policies or supplemental terms on our Services. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
THE SERVICES COMPRISE AN ONLINE CROWDFUNDING PLATFORM THROUGH WHICH PEOPLE AND ENTITIES SEEKING TO RAISE FUNDS FOR THEIR OWN PROJECTS AND TO CONTRIBUTE TO THE PROJECTS OF OTHERS. PROJECT OWNERS CAN OFFER GIFTS OR REWARDS IN THE FORM OF TANGIBLE ITEMS OR INTANGIBLE SERVICES (COLLECTIVELY “GIFTS”) TO CONTRIBUTORS. GIFTS ARE NOT OFFERED FOR SALE. PIESHELL MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY, SAFETY, MORALITY OR LEGALITY OF ANY PROJECT, GIFT OR CONTRIBUTION OR THE TRUTH OR ACCURACY OF USER CONTENT (AS DEFINED BELOW) POSTED ON THE SERVICES. PIESHELL DOES NOT REPRESENT THAT PROJECT OWNERS WILL DELIVER GIFTS OR THAT CONTRIBUTIONS WILL BE USED AS DESCRIBED IN THE PROJECT. PIESHELL HAS NO CONTROL OVER THE CONDUCT OF USERS AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. USERS ACCESS AND USE THE SERVICES AT THEIR OWN RISK.
USERS AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT THEY ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF PIESHELL, INCLUDING, WITHOUT LIMITATION, BY INAPPROPRIATELY USING ANY PIESHELL INTELLECTUAL PROPERTY. USERS ACT EXCLUSIVELY ON THEIR OWN BEHALF AND FOR THEIR OWN BENEFIT, AND NOT ON BEHALF OF PIESHELL
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE WEB SITE, VIA THE APPLICATION OR OTHERWISE THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SERVICES OR HAVE A PIESHELL ACCOUNT (EACH, A “PIESHELL ACCOUNT”). IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE WEB SITE, APP AND SERVICES.
You acknowledge and agree that you alone are responsible for any and all Gifts that you provide or receive through the Web Site, App and Services. Accordingly, Project Owners represent and warrant that any Gift they provide via the Web Site, App and Services will be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to any Gifts listed or included in a Project via the Services, Web Site and App that you post (including having all required permits, licenses and registrations). Please note that PieShell assumes no responsibility for a Project Owner’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. You acknowledge and agree that as a Project Owner or Contributor you are responsible for your own acts and omissions. PieShell reserves the right, at any time and without prior notice, to remove or disable access to any Projects posted for any reason, including Projects that PieShell, in its sole discretion, considers objectionable for any reason, in violation of these Terms or otherwise harmful to the Web Site, App or Services.
The Services are not targeted toward or intended for use by anyone under the age of 18. You not permitted to access or use the Services if you are under the age of 18. By using the Services, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services, (d) do not have more than one PieShell Account, and (e) have full power and authority to enter into a legal binding agreement and enter into these Terms and in so doing will not violate any other agreement to which you are a party.
You agree to abide by any limitations specified in these Terms or posted through the Services. Any use of the Services that is not expressly permitted by these Terms is prohibited.
The Services are controlled within the United States of America and are directed to individuals residing in the United States. Those who choose to access or use the Services from locations outside of the United States do so on their own initiative, and are responsible for compliance with local laws if and to the extent local laws are applicable. PieShell does not represent that the Services are appropriate outside the United States of America. PieShell reserves the right to limit the availability of the Services for any person, geographic area or jurisdiction at any time in its sole discretion.
Terms of Sale
You must not use the Service for any unlawful purpose. All information you provide through your PieShell Account must be truthful, accurate and current. You shall correct any information that is no longer accurate or current. You must not use the Service to “stalk” or otherwise harass another User or any other person. You must not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
Taxing authorities may classify funds raised on the Services as taxable income to the Project Owner and any beneficiary who will receive funds directly from the applicable Project. PieShell may ask for the tax identification number (TIN) of Project Owners and any beneficiaries so that we may report taxable income to the relevant taxing authorities. PieShell may provide Project Owners with a tax document if required by the relevant taxing authorities.
Project Owners are not permitted to create a Project to raise funds for illegal activities, to cause harm to people or property, or to scam others. Users must comply with all applicable laws and regulations in connection with their Projects, including offering Gifts and using Contributions.
Project Owners are not permitted to offer or provide any of the following as a Gift:
- any form of “security” (as such term is defined in the Securities Act of 1933);
- any form of financial incentive or participation in any profit sharing;
- any alcoholic consumer products (vouchers or memberships offering physical delivery of alcoholic consumer products are permitted);
- any controlled substance or drug paraphernalia;
- any weapons, ammunition and related accessories;
- any pornography, sexually explicit materials or products that may be involved in the exploitation of minors;
- any form of lottery or gambling;
- any form of sweepstakes, contest or giveaway;
- any form of air transportation; or
- any items promoting hate, discrimination, personal injury, death, damage, or destruction to property; or any items (a) prohibited by applicable law to possess or distribute, (b) that would violate applicable law if distributed, or (c) that would result in infringement, misappropriation or violation of another person’s rights if used or distributed.
Project Owners agree to perform on any promise and/or commitment to Contributors (including delivering any Gifts). PieShell does not recognize any third party and/or agency affiliated with the Project as a Project Owner. If a Project Owner is unable to perform on any promise and/or commitment to Contributors, the Project Owner will work with the Contributors to reach a mutually satisfactory resolution, which may include the issuance of a refund of Contributions by the Project Owner. PieShell is under no obligation to become involved in disputes between Project Owners and Contributors, or Users and any third party. In addition, PieShell is under no obligation to become involved in disputes regarding the determination of the rightful Project Owner, and will not be obligated to make any changes to Project Owner accounts or transfer of ownership. In the event of any dispute, such as a Project Owner’s alleged failure to comply with the Terms or alleged failure in fulfillment of a Gift, we may provide the Project Owner’s contact information to the Contributor so that the two parties may resolve their dispute.
Contributors are solely responsible for asking questions and investigating Project Owners and Projects to the extent they feel is necessary before making a Contribution. All Contributions are made voluntarily and at the sole discretion and risk of the Contributor. PieShell does not guarantee that Contributions will be used as promised, that Project Owners will deliver Gifts, or that the Project will achieve its goals. Contributors are solely responsible for determining how to treat their Contributions and receipt of any Gifts for tax purposes. If a Contribution is returned to a Contributor, the associated Gifts, if any, shall be canceled.
Contributors may request a refund from PieShell before the end of a Project. Contributions are eligible for a refund by PieShell unless (a) the contribution funds have already been transferred to the Project Owner, (b) the Gift associated with the contribution has been fulfilled, or (c) PieShell determines that there has been an abuse of these Terms. PieShell reserves the right to terminate PieShell Accounts and remove Projects for any abuse of this refund policy. For Projects that have ended, or in situations where the contribution funds have been transferred to the Project Owner, Contributors should contact the Project Owner directly regarding refunds.
PieShell does not endorse any Project or Gift and PieShell does not represent that any Project is suitable or safe for you. By using the Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third parties will be limited to a claim against the particular User or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from PieShell with respect to such actions or omissions.
License to Access and Use the Services
Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, the PieShell logo and all designs, text, graphics, pictures, information, data, software, sound files, images, media, data, charts, maps, software, materials ideas, proposals, concepts, content, materials, works, User Content (as described herein), other files and the selection and arrangement thereof (collectively, the “Content”) are the proprietary property of PieShell or our licensors or Users, as applicable, and are protected by U.S. and international intellectual property and other applicable laws.
You acknowledge and agree that except with respect to your User Content, as between PieShell and you, all Content shall remain the exclusive property of PieShell, and PieShell shall retain all rights with respect to same, including, the sole right to implement, use, publish and/or publicly disseminate the Content. You agree that you will not use any Content other than as directed by PieShell, without PieShell’s prior written consent.
The trademarks, service marks, logos, slogans, trade names and trade dress used on the Services are proprietary to PieShell, its subsidiaries, affiliates, licensors, related entities or its Users or content providers. Third party trademarks referenced in the Services do not constitute or imply affiliation with, endorsement, or recommendation of PieShell by the respective trademark owners, or affiliation with, endorsement, or recommendation of the respective trademark owners by PieShell.
Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable license to access and use the Services. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Services and the Content, (b) distribute, reproduce, copy, transmit, publish, sell, resell exploit, publicly perform or publicly display any portion of the Services or Content, (c) modify or otherwise make any derivative uses of the Services or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Services or Content, except as expressly permitted by us, and (f) use the Services or Content other than for their intended purposes, which shall be limited to use in furtherance of the Services. Any use of the Services or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of PieShell or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time by PieShell.
Notwithstanding anything to the contrary in these Terms, the Services may include software components provided by PieShell or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
Third-party Services and Content
We may display content, advertisements and promotions from third parties through our Services, in connection with Projects or as part of the Services (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and that PieShell is not responsible or liable in any manner for such interactions or Third Party Content.
There is no charge to create a PieShell Account. By using the Services, Users agree to our Service fees listed here (https://www.pieshell.com/about) (the “Service Fees”). Credit card payment processing services for Project Owners on PieShell are provided by Stripe, Inc. (“Stripe”) and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By continuing to operate as a Project Owner on PieShell, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition to PieShell enabling credit card payment processing services through Stripe, you agree to provide PieShell accurate and complete information about you and your business, and you authorize PieShell to share any such information with Stripe, as well as transaction information related to your use of the payment processing services provided by Stripe. In all cases, standard credit card or other third party processing fees apply in addition to any Service Fees. We are not responsible for the performance of any third party credit card processing or third party payment services.
Registration, Account and Communication Preferences
In order to use most aspects of the Services, you must register for and maintain an active PieShell Account. By creating a PieShell Account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update from time to time as necessary your PieShell Account information, (c) maintain the security of your password and accept all risks of authorized access to your PieShell Account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your PieShell Account.
You are responsible for maintaining the confidentiality of your password and are fully responsible for all uses of your password, whether by you or others. When you register for a PieShell Account and each time you access your PieShell Account, you agree to (a) log out of your account at the end of each session; (b) keep your password confidential and not share it with anyone else; and (c) immediately notify PieShell of any unauthorized use of your password or account or any other breach of security. PieShell reserves the right to delete, modify or remove any content on any account at any time in its sole discretion. You are solely responsible to backup any content that you do not want deleted, modified or removed from the account. PieShell is authorized to act on instructions received through use of your password, and is not liable for any loss or damage arising from your failure to comply with this section or these Terms.
By creating a PieShell Account, you also consent to receive electronic communications from PieShell (e.g., via email or by posting notices to the Web site or the App). These communications may include notices about your PieShell Account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
The Services may include interactive features and areas that allow Users to create, post, share or store content, including, but not limited to, reviews, photos, video, sound, graphics, code, items or other materials whether or not related to a Project or Gift (collectively, “User Content”). In the event you decide to share your User Content with others through the Services or third party platforms, you understand that this User Content may be viewable by others. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas on our Services:
By using the interactive features and areas of our Services, you further agree not to create, post, share or store any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- User Content that impersonates, or misrepresents your affiliation with, any person or entity;
- User Content that references or depicts PieShell or our Services but fails to disclose a material connection to us, if you have one;
- User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations;
- User Content that contains any private or personal information of a third party without such third party’s consent;
- User Content that references alcohol irresponsibly, such as references to overconsumption or use by minors;
- User Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Services, or that may expose PieShell or others to any harm or liability of any type.
User Content submitted, posted or made available through the Services are strictly those of the originating author or User, who shall be solely responsible for such content. Use of or reliance on User Content is entirely at your own risk. We are not responsible or liable for any User Content. Although we have no obligation to review, screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, block, screen or edit User Content posted or stored on our Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on our Services at your sole cost and expense.
Rights in User Content
We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to our Services or third-party websites, mobile apps or other online platforms connected to our Services, (e.g., PieShell’s Facebook page, Instagram page or Twitter feed), you hereby grant PieShell a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license, without further compensation, to use, reproduce, host, store, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to PieShell through our Services or third-party websites, mobile apps or other online platforms connected to our Services, you represent and warrant that (a) such User Content is non-confidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize PieShell to use such User Content for the purposes described in these Terms, (d) the User Content is true, accurate and not misleading or harmful in any manner, and (e) the User Content is your original work, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation, or infringe or violate third party right or require any third party releases or permissions or any payment to a third party.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about PieShell or Projects (collectively, “Feedback”). Feedback is non-confidential and shall become the sole property of PieShell. PieShell shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Network Access and Devices
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device or when you receive text messages and other communications from PieShell. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. PieShell does not guarantee that our Services, or any portion thereof, will function on any particular hardware or devices. In addition, our Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS PIESHELL, AND OUR PAST, PRESENT AND FUTURE EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, CONSULTANTS, EQUITY HOLDERS, SUPPLIERS, VENDORS, SERVICE PROVIDERS, PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AGENTS, REPRESENTATIVES, PREDECESSORS, SUCCESSORS AND ASSIGNS (INDIVIDUALLY AND COLLECTIVELY, THE “PIESHELL PARTIES”), FROM AND AGAINST ALL ACTUAL OR ALLEGED PIESHELL PARTY OR THIRD PARTY CLAIMS, DAMAGES, AWARDS, JUDGMENTS, LOSSES, LIABILITIES, OBLIGATIONS, PENALTIES, INTEREST, FEES, EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES) AND COSTS (INCLUDING, WITHOUT LIMITATION, COURT COSTS, COSTS OF SETTLEMENT AND COSTS OF PURSUING INDEMNIFICATION AND INSURANCE), OF EVERY KIND AND NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, MATURED OR UNMATURED, OR SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHETHER IN TORT, CONTRACT OR OTHERWISE (COLLECTIVELY, “CLAIMS”), INCLUDING, BUT NOT LIMITED TO, DAMAGES TO PROPERTY OR PERSONAL INJURY, THAT ARE CAUSED BY, ARISE OUT OF OR ARE RELATED TO (A) YOUR USE OR MISUSE OF OUR SERVICES OR CONTENT, (B) ANY USER CONTENT YOU CREATE, POST, SHARE OR STORE ON OR THROUGH OUR SERVICES OR ANY USER CONTENT YOU CREATE, POST, SHARE OR STORE ON THIRD-PARTY WEBSITES, MOBILE APPS OR OTHER ONLINE PLATFORMS CONNECTED TO OUR SERVICES, (C) ANY FEEDBACK YOU PROVIDE, (D) YOUR MATERIAL UNCURED BREACH OF THESE TERMS OR ANY VIOLATION OF APPLICABLE LAWS THAT PROTECT US, (E) YOUR VIOLATION OF THE RIGHTS OF PIESHELL OR ANOTHER WHOSE LEGAL RIGHTS YOUR ACTIONS HAVE DAMAGED, (F) ANY ACTIVITY THAT OCCURS UNDER YOUR PIESHELL ACCOUNT ACCESSED WITH YOUR PASSWORD, AND (G) ANY THIRD PARTY’S USE OR MISUSE OF THE SERVICES PROVIDED TO YOU. YOU AGREE TO PROMPTLY NOTIFY PIESHELL OF ANY THIRD PARTY CLAIMS AND COOPERATE WITH THE PIESHELL PARTIES IN DEFENDING SUCH CLAIMS. YOU FURTHER AGREE THAT THE PIESHELL PARTIES SHALL HAVE CONTROL OF THE DEFENSE OR SETTLEMENT OF ANY THIRD PARTY CLAIMS. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND PIESHELL.
PIESHELL IS ONLY RESPONSIBLE FOR PROVIDING THE WEB SITE, APP AND THE SERVICES UNDER THE TERMS OF THIS AGREEMENT. PIESHELL SHALL NOT HAVE ANY LIABILITY WITH RESPECT TO ANY USER CONTENT, PROJECTS, CONTRIBUTIONS OR GIFTS.
ALL SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. PIESHELL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE WEB SITE, APP, CONTENT, SERVICES, MATERIALS AND MEALS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE WEBSITE, APP OR SERVICES WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PIESHELL, OR THROUGH THE WEB SITE, APP, CONTENT, SERVICES, MATERIALS OR PROJECTS, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
LIMITATION OF LIABILITY; RELEASE
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR INSTANCES OF GROSS NEGLIGENCE, INTENTIONAL WRONGDOING, WILLFUL MISCONDUCT, OR WHERE WE HAVE A LEGAL OBLIGATION TO YOU, NEITHER PIESHELL NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, PREPARING AND/OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, APP, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY LIABILITY PRODUCT LIABILITY OR OTHERWISE, IN LAW OR IN EQUITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW FOR CERTAIN LIMITATIONS WITH RESPECT TO IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE ABOVE EXCLUSIONS AND LIMITATIONS SHALL ONLY APPLY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IF IT IS FINALLY DETERMINED BY A COURT OF LAW OR AN ARBITRATOR THAT OUR LIMITATION OF LIABILITY SET FORTH IN THIS SECTION DOES NOT APPLY TO YOU, THEN YOU AGREE THAT PIESHELL’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED (I) THE AMOUNTS YOU HAVE PAID TO PIESHELL FOR USE OF OUR SERVICES OR (II) ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO PIESHELL, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND PIESHELL.
Modification to the Services
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, our Services (or any features or parts thereof) at any time and without liability therefor, with or without notice. You agree that PieShell will not be liable to you or any third party for any modification, suspension, or discontinuance of the Services (or any features or parts thereof).
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Services by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
15 Abingdon Sq, Suite 31
New York, NY 10014
Attention: Copyright Agent
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
LIMITATION ON TIME TO COMMENCE ACTION, JURISDICTION AND ARBITRATION
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT OUTLINES CERTAIN RIGHTS THAT YOU ARE WAIVING OR LIMITING BY USING OUR SERVICES. REMEMBER, THAT YOUR USE OF THE SERVCIES CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS, INCLUDING THE PROVISIONS RELATING TO GOVERNING LAW AND DISPUTE RESOLUTION. THIS SECTION WAIVES THE FOLLOWING RIGHTS THAT YOU MIGHT OTHERWISE HAVE:
- The right to participate in any form of class or representative claim.
- The right to a jury trial.
- The right to have the law of any jurisdiction, other than that of the state of New York, apply to a dispute between you and PieShell arising out of or relating to these Terms or the Services.
- The right to address the dispute in any jurisdiction outside of New York.
- The right to engage in discovery except as provided in arbitration proceedings under the rules of the American Association of Arbitration (“AAA”),
- The right to certain remedies and forms of relief that you or we would have in court, but not in Arbitration.
You agree that any cause of action arising out of or related to these Terms and our Services must commence by you within one (1) year after the cause of action arose; otherwise, your ability to bring any case or cause or action against PieShell shall be permanently barred. Nothing herein shall be deemed to limit the period during which PieShell may bring any cause of action arising out of this Agreement against you. These Terms will be interpreted in accordance with the laws of the State of New York and the United States of America, without regard to its conflict of law provisions. This Agreement shall inure to the benefit of each party and its successors, assigns and agents. PieShell may assign its rights and duties under this Agreement to any of its subsidiaries or affiliates without giving you notice or to any other entity upon prior written notice to you.
Binding Arbitration. Any dispute or claim between you and PieShell, arising out of, or relating in any way to, the Terms, the Services, or your use of the Services (“Dispute”) shall be resolved exclusively by final, binding individual arbitration, rather than in court. By virtue of this Agreement you and PieShell are each giving up the right to go to court and have any Dispute heard by a judge or jury.
No Class Action Matters. You and PieShell expressly agree that each shall bring any dispute, in any amount, against the other, in each other’s respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, we each agree that all disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.
These Terms, your access to and use of the Services shall be governed and construed and enforced in accordance with the laws of the State of New York, without regard to conflict of law rules or principles (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of New York and United States, respectively, sitting in the State of New York, County of New York, Borough of Manhattan.
If any term, clause or provision of these Terms is held invalid or unenforceable (e.g., if you are a New Jersey resident, certain portions of the sections titled “General Disclaimers,” “Limitation of Liability; Release” and “Limitation on Time to Commence Action, Jurisdiction and Arbitration”), then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights notice:
The name, address and telephone number of the provider of this service is PieShell, LLC, 15 Abingdon Sq, Suite 31, New York, NY 10014, 917-426-1302. Complaints regarding the service or requests to receive further information regarding use of this service may be sent to the above address. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite S202, Sacramento, CA 95834 or by telephone at (916) 574-7950 or (800) 952-5210.
These Terms constitute the entire agreement between you and PieShell relating to your access to and use of our Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of PieShell. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and PieShell’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. No change or alteration in these Terms will be deemed in any instance to be an admission of fault, liability or violation of applicable law. PieShell reserves the right to seek all remedies available at law and in equity for violations of these Terms or special terms or rules set forth on the Site, including without limitation the right to block access from a particular internet address.