Terms of service
Effective Date: 21 December 2018
Unless otherwise indicated, these Terms of Service (“Terms”) apply to (i) your use of and/or access to the website www.Peakers.ai (“Website”) which are owned or operated by Peakers Inc., with its address at 730 Arizona Avenue, Santa Monica, CA90401, or its affiliates (collectively, “Peakers”, “we,” “us,” or “our”) and (ii) your use of and/or access to the mobile phone application which we own and operate (the “Mobile App” or “App”) and (iii) your use of and or access to any content or information and other online or mobile-enabled technology, digital tools and other services and products provided by us (together with the Website and the Mobile App, collectively, the “Services”). For the sake of clarity, “Affiliates” shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, Peakers.
Agreement between user and Peakers
If you access or use the Services on behalf of a company or other entity, you represent that you have authority to bind such entity and its Affiliates to these Terms. In such case, the term “you” in these Terms will refer to such entity.
These Terms contain provisions that govern disputes resolution, including an agreement to arbitrate, which will, unless you reside in the European Union, with limited exception, require you to submit claims you have against us to binding and final arbitration and limit you to claims against Peakers on an individual basis, unless you opt-out in accordance with these Terms.
From time to time, we may, in our sole discretion, change, modify portions of these Terms. Such modifications shall become effective upon posting by Peakers on the Website, the App, via the Service or sending you an email or other notification. You will be deemed to have agreed to such modifications by your decision to continue accessing the Mobile App or the Website or otherwise using any of the Services following the date in which such modifications become effective.
In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Services. You agree that any termination or cancellation of your access to, or use of, the Services may be effected without prior notice.
Registration and Accounts
We do not permit individuals under 16 years of age to become registered users of our Services. By using the Services, you represent and warrant that you are at least 16 years of age and have the right, authority and capacity to enter into these Terms. If You are 16 or older but younger than 18, then You may establish Your own account only if Your parent or guardian accepts this Agreement on Your behalf. If you are a parent or guardian entering this Agreement for the benefit of a child age 16 or older but under 18, then You agree You will be solely responsible for all access to and use of the Services by Your child.
To use the Services, you must register. You represent and warrant that all information you provide on the registration form or otherwise in connection with your use of the Services will be current, and complete (“Member Data”). You agree to maintain and promptly update the Member Data. You agree that Peakers may use your Member Data to provide Services that you access or use and as otherwise set forth in these Terms. In consideration of your use of the Services, you represent that you are not a person barred from receiving Services under the laws of any applicable jurisdiction.
You are solely responsible for maintaining the confidentiality of the password associated with your account and for restricting access to your password, your computer and mobile device while logged into the Services. You agree to immediately notify Peakers of any unauthorized use of your account or password, or any other breach of security.
We will use reasonable security measures to protect your account and your data. We cannot, however, guarantee absolute security of your account or your data from illegally accessing the Services or its contents by third parties.
Subscriptions and Fee
Our Services consist in different subscription packages, offering different functionality, with different fees.
You are responsible for all charges and fees associated with connecting to and using the Website and/or Mobile App, including without limitation all telephone access lines (including mobile data and data roaming charges), telephone or internet service provider fees and any other fees and charges necessary to access our Website and App.
If you are a subscriber to our Service, you further agree as follows:
1. You agree not to register or subscribe for more than one account, create an account on behalf of someone else, or create a false or misleading identity on the Website or on the App. You will be responsible for the fees and charges you selected at the time of subscription;
2. BY PURCHASING A SUBSCRIPTION TO THE SERVICE, YOU AGREE THAT, ONCE YOUR SUBSCRIPTION EXPIRES, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR SUCCESSIVE PERIODS EQUAL IN LENGTH TO THE IMMEDIATELY PRECEDING SUBSCRIPTION PERIOD UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION. Until you cancel, we will charge or debit your payment method at the beginning of your subscription. Your non-cancellation of the Services or continued use of the paid subscription features of the Service will reaffirm that we are authorized to charge you. If your credit or debit account has been closed or your payment method is otherwise invalid, your subscription may not renew and your subscription will be automatically cancelled as of the end of your current billing cycle. The renewal charge will generally be the same as the prior period’s charge, unless we notify you in advance at the time of sign up or prior to the beginning of the renewal period as described above. If (i) you purchased a multiple-period prepayment plan or (ii) you were eligible for a promotional rate but are no long eligible for that rate, then your subscription will be offered to renew your subscription at our then-current non-promotional subscription rates at the start of the renewal period.
3. ALL FEES AND CHARGES ARE NON-REFUNDABLE. If you reside outside the United States, you may be entitled to change your mind and receive a full refund within fourteen (14) days, provided that you have not logged in or otherwise redeemed or started to use the Services during this Period.
4. YOU CAN CANCEL YOUR SUBSCRIPTION AT ANY TIME USING THE APP (BY CHANGING THE SETTINGS IN YOUR ACCOUNT) OR BY CONTACTING US BY EMAIL info@Peakers.ai). WE WILL ATTEMPT TO PROCESS ALL CANCELLATION REQUESTS WITHIN 72 HOURS AFTER WE RECEIVE YOUR REQUEST. WE RESERVE THE RIGHT TO COLLECT FEES, SURCHARGES, OR COSTS INCURRED BEFORE YOUR CANCELLATION TAKES EFFECT. PEAKERS HAS NO OBLIGATION TO OFFER OR PROVIDE ANY REFUND FOR THE CANCELLATION OF ANY SUBSCRIPTION.
To pay any fee, you must designate and provide information about your preferred payment method (the “Payment Method”). If you provide your payment information, you authorize us and certain third party service providers, payment card networks and payment processors to receive, store and encrypt your payment information. If your payment provider determines that there are fraudulent charges on your account resulting from use of your Payment Method at the Services, please contact us immediately at info@Peakers.ai.
Processing of the data you share with Peakers is essential to the Services. The Services cannot be provided without Peakers processing data about you, including your location data and other data that you share with us by using any device. Peakers is essential to the Services
Consent To Receive Electronic Communications
In using the Services, by using the App you may receive communications regarding the Services.
You may also receive promotions that we believes might be of interest to you. You can opt-out of receiving these promotional messages at any time by (a) following the unsubscribe instructions contained in each message; or (b) changing the account preferences in your account (C) sending an email to info@Peakers.ai.
You hereby grant Peakers its directors, officers, employees, agents, Affiliates, representatives, service providers, partners, sublicensees and assigns (collectively, the “Peakers Parties”) a royalty-free, perpetual, assignable, irrevocable, sublicensable, non-exclusive right and license to use, license, reproduce, modify, adapt, publish, translate, transmit, create derivative works from, distribute, derive revenue or other remuneration from, communicate to the public, perform, display and otherwise use any content, materials or information, data or other content that you upload, send, email, or otherwise transmit to us (privately transmitted, or submitted through a third party API) (“User Content”).
Third-Party Products, Services And Data Collection
Certain features, aspects, software products and services offered through the Services are provided, in whole or in part, by third parties (“Third-Party Services” as provided by “Third-Party Service Providers”). In order to use Third-Party Services, you may be required to enter into additional terms and conditions with Third-Party Service Providers. Our Terms & Conditions apply only to the Services, and not to the apps of any other person or entity. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse (and are not responsible or liable for) any content, advertising, products or other materials on or available from such apps or resources.
No Medical Advice
PEAKERS IS NOT A HEALTHCARE PROVIDER OR BUSINESS ASSOCIATE OF A HEALTHCARE PROVIDER AND IS NOT SUBJECT TO THE PRIVACY RULE OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA).
THE TRANSMISSION AND RECEIPT OF OUR CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA WEBSITE, APP, E-MAIL OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND PEAKERS. THE CONTENT WE PROVIDE THROUGH THE SITE, INCLUDING ALL TEXT, AUDIO, VIDEO AND OTHER MATERIALS, WHETHER PROVIDED BY US OR OUR SUPPLIERS OR BY THIRD PARTIES, IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF: THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS OR INFORMATION CONTAINED IN ANY PRODUCT PACKAGING OR LABEL. OUR CONTENT DOES NOT CONSTITUTE MEDICAL ADVICE.
YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON THIS SITE, AND YOU SHOULD NOT USE OUR CONTENT FOR DIAGNOSING OR TREATING A HEALTH PROBLEM.
YOU SHOULD BE AWARE THAT THERE ARE INHERENT PHYSICAL AND MENTAL HEALTH RISKS TO EXERCISE, INCLUDING RISK OF INJURY OR ILLNESS. BY ACCESSING THE SERVICE, YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR PERFORMANCE OF ANY AND ALL EXERCISES OR ACTIVITIES RECOMMENDED BY THE SERVICE IS WHOLLY AT YOUR OWN RISK. PEAKERS, ITS EMPLOYEES AND ITS AGENTS, WILL NOT BE LIABLE FOR ANY PHYSICAL OR MENTAL INJURY OR ILLNESS THAT MAY RESULT, WHETHER DIRECTLY OR INDIRECTLY, FROM ANY OF OUR RECOMMENDED WORKOUT PLANS OR EXERCISES. WHILE WE MAY PROVIDE GUIDELINES SUCH AS WRITTEN DESCRIPTIONS, PICTURES, OR VIDEOS DESCRIBING HOW TO PERFORM SPECIFIC EXERCISES OR ACTIVITIES, YOU ASSUME SOLE RESPONSIBILITY FOR PERFORMING THOSE EXERCISES OR ACTIVITIES WITH PROPER FORM, AS RISK OF INJURY OR ILLNESS INCREASES WITH IMPROPER FORM.
YOU MUST DISCONTINUE EXERCISE IN CASES WHERE IT CAUSES PAIN OR SEVERE DISCOMFORT, AND SHOULD CONSULT A MEDICAL EXPERT PRIOR TO RETURNING TO EXERCISE IN SUCH CASES. WE RESERVE THE RIGHT TO DENY YOU ACCESS TO THE SERVICE IF WE DETERMINE, IN OUR SOLE DISCRETION, THAT YOU HAVE CERTAIN MEDICAL CONDITIONS.
IF YOU HAVE NOT BEEN PHYSICALLY ACTIVE OR IF YOU HAVE ANY MEDICAL HISTORY THAT MAY PUT YOU AT RISK (INCLUDING, WITHOUT LIMITATION, HEART DISEASE, HIGH BLOOD PRESSURE, FAMILY HISTORY OF HIGH BLOOD PRESSURE, ETC.) YOU ARE REQUIRED TO SEEK A PREVIOUS APPROVAL FROM A QUALIFIED HEALTH CARE PRACTITIONER PRIOR TO USING THE SERVICE. SHOULD YOU HAVE ANY HEALTHCARE RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY.
Limitations of liability
THE FOLLOWING TERMS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
1.THE SERVICE ARE PROVIDED ON AN “AS IS”. PEAKERS NOR ITS AFFILIATES MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY OR COMPLETENESS. THE PEAKERS PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD BY USING THE SERVICE AND THE APP.
2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL PEAKERS, ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON THE WEBSITE, OUR APPLICATIONS OR APPLICATIONS LINKED TO OUR APP; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SERVICES; OR (E) ANY OTHER MATTER RELATING TO THE SERVICES.
3. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY PEAKERS, ITS AFFILIATES AND ANY OF PEAKERS’S AND ITS AFFILIATES’ OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBLICENSEES, SUCCESSORS AND ASSIGNS FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES.
4. THE MAXIMUM LIABILITY OF PEAKERS AND ITS AFFILIATES AND ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OUR SERVICES. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN PEAKERS AND YOU. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
6. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES, OR THESE TERMS & CONDITIONS MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THESE TERMS & CONDITIONS.
Third Party Disputes
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE PEAKERS AND ITS AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
Third party products and services made available on the Services are made and offered directly by the applicable third party. When you pursue or purchase any such product or service, you acknowledge that you are contracting directly with such third party and not with Peakers. Your interaction with, or participation in promotions of, third parties found on or through the Services, including payment and delivery of goods or services, and any other terms, are solely between you and such third party. You are not obligated to use or transact business with any third party that appears on the Services. YOU AGREE THAT PEAKERS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND INCURRED BY YOU AS THE RESULT OF ANY OF YOUR DEALINGS WITH THIRD PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE SERVICES.
Peakers or third parties may provide links to other internet sites or resources through the Services. PEAKERS DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, INFORMATION, ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH SITES OR RESOURCES. YOU ACKNOWLEDGE AND AGREE THAT PEAKERS IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUCH EXTERNAL SITES OR RESOURCES.
You acknowledge and agree that the Services and all intellectual property rights associated therewith are, and shall remain, the property of Peakers (and, where applicable, its licensors). Furthermore, you acknowledge and agree that the source and object code of the App and/or Website and the format, directories, queries, algorithms, structure and organization of the App and/or Website are the intellectual property and proprietary and confidential information of Peakers and its affiliates, licensors and suppliers. Peakers and Peakers.ai (collectively, the “Peakers Marks”) are trademarks or registered trademarks of Peakers Inc. All content and other materials available through the Services, are either owned by Peakers or are the property of Peakers’s licensors and suppliers.
You acknowledge and agree that the Services, any necessary software used in connection with the Services, any aggregated data based on the Services, and any content available or made available on the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly permitted by applicable law or authorized by Peakers or applicable third party service providers or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, the software or content available on the Services, in whole or in part.
Except as explicitly provided, neither your use of the Services nor these Terms grant you any right, title or interest in or to any content or materials. Subject to your continued compliance with the Terms, we grant you a non-exclusive, non-transferable, revocable, limited license to access and use our Services. Your use is limited for your personal, noncommercial use only. The Services, may not be reproduced, duplicated, copied, sold, distributed, for any commercial purpose without the express written consent of Peakers. Furthermore, except for the limited rights granted in this Section, you will not modify, repair or otherwise create derivative works of the Services or any software or technology included in or used. Also, you will not reverse engineer or decompile the Services, or attempt to discover or recreate the source code for the Services.
You acknowledge that Services contain content, information, software, photos, video, text, graphics, ideas, drawings, and other materials, including nutritional information contributed to the Food Database (hereinafter defined) (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights. All Content is copyrighted.
Our partners, suppliers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on our Services. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale any of the Content, in whole or in part.
1. Streamlined JAMS Arbitration
Except as provided in paragraph 2 and paragraph 3 below, any dispute, claim, or controversy arising out of or relating to this Terms or the breach, termination, enforcement, interpretation, or validity this Terms, including the determination of the scope or applicability of this Terms to arbitrate will be determined by arbitration in Los Angeles, California. The arbitration will be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, in accordance with its JAMS’ provisions and procedures for consumer-related disputes. Judgment on the award may be entered in any court having jurisdiction.
2. Injunction to protect against irreparable harm
The parties may seek from a court of competent jurisdiction a temporary injunction to protect against irreparable harm. The injunction will terminate on the date the arbitrator decides the outcome of the dispute.
3. Provisional remedies in aid of arbitration
The parties may seek from a court of competent jurisdiction provisional remedies in aid of arbitration.
4. Selection of Arbitrator
The dispute will be heard by one arbitrator. If possible, the parties will agree to a JAMS arbitrator. If the parties cannot agree on an arbitrator, the case manager at Los Angeles’s JAMS office will select and appoint an arbitrator for the parties.
5. Hearing and Disclosure Dates
The arbitration hearing will be held no later than 60 days from the date of the demand for Arbitration. The parties are required to fully disclose and produce all documents and other evidence to be used in support of their case 30 days before the hearing. Failure to disclose and produce documents during this time frame will render them inadmissible.
The parties will maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
7. Non-Appealable Determination
The parties agree to request that the arbitrator reach his or her decision within 48 hours from the conclusion of the hearing. The arbitrator’s decision will be final, binding, and non-appealable.
8. Exchange of Written Settlement Offers
At least 30 days in advance of the hearing, for each claim each party to the claim will submit to each other and to the arbitrator their first written settlement offers. At least 14 days in advance of the hearing, for each claim each party to the claim will submit to each other and to the arbitrator their second written settlement offers. If at any point only one party timely submits their offer, that party will be awarded the submitted offer.
9. Baseball Style Arbitration
At least seven days in advance of the hearing, for each claim each party to the claim will submit to the arbitrator their last, best offers. If only one party timely submits their offer, that party will be awarded the submitted offer. Once the arbitrator has an offer from each party to the claim, the arbitrator will distribute the offers to the parties. The arbitrator will be limited to awarding only one of the offers submitted. This method of arbitration is sometimes referred to as “baseball arbitration.”
10. Attorney Fees
The party whose offer is accepted by the arbitrator will be awarded the costs and attorney fees reasonably incurred in connection with the claim.
Governing Law and Venue
Any action related to the Terms, Content, the Services, and your relationship with Peakers shall be governed by and construed in accordance with, the laws of the State of California without regard to its conflict of laws principles and will specifically not be governed by the united nations conventions on contracts for the international sale of goods, if otherwise applicable. Subject to the Section entitled “Dispute Resolution”, the parties irrevocably consent to bring any action to enforce this Terms in the federal or state courts embracing Los Angeles, California and you consent to the exclusive jurisdiction of the federal or state courts embracing Los Angeles, California.
If you would like to contact us in connection with your use of the Service, then please contact us by email at info@Peakers.ai.