Last modified 10/10/2020

Welcome to https://www.peachly.com, a social media website and application service which allows Users to create a profile, upload photos and videos onto their profile, set a monthly subscription price payable by other Users or subscribers who wish to view such Users’ Content and thereby generate revenue. 

 

INTRODUCTION

 

These Terms and Conditions are between Peachly, LLC (the “Company”, “we”, “us”, or “our”) and you (“you”, “your”, or “yourself”). These Terms and Conditions/Terms of Use, combined with our Privacy Policy, form a legally binding agreement (“Agreement”) between you and us and govern your access to and use of our website and services located at https://www.peachly.com (the “Website”).

 

Please note that you are solely responsible for your interaction/sharing of information with other Users. For more information, you may contact us through the contact information provided at the end of these Terms of Use.

 

By clicking on the words "I agree," "Submit," or similar syntax, you are electronically signing this Agreement, and therefore agree to be bound by and acknowledge your complete acceptance of all the express and incorporated terms in this Agreement even if you do not read them. Kindly immediately leave the Site if you do not wish to be bound by this Agreement. You are bound by this Agreement, even if you merely browse the Site and have not signed up for an account.

 

We will cancel your account and/or pursue other legal remedies if you violate this Agreement and fail to remedy such violation within seven (7) days of receipt of notice of such violation or breach.

 

We may revise this Agreement on from time to time by updating this webpage as discussed in Section 11 below. We will deem your continued use of the Site after we post the changes as your acceptance of the changes. If you do not agree to any future changes, please delete your account and cease accessing or using the services provided by the Site ("Services").

 

We appreciate that different countries, states or jurisdictions may impose various restrictions on the usage and eligibility to access services such as ours and we note that it is your responsibility as the User to comply with the applicable local legal requirements. Peachly shall not at any point in time be held liable for any User’s individual violation of such local legal requirements.

 

DEFINITIONS

 

In these Terms of Use:

 

“Apps” refers, individually and collectively, to each and all of the Mobile Apps, Desktop Apps, and Web Apps.

 

"Commission" means the amount calculated as a percentage of the Revenue paid by Subscribers to view a Creator’s User Content.

 

"Creator" means a User who uploads Content on the Website to be viewed by other Users.

 

"Payment Provider" means any third party approved by Peachly, LLC which enables a User to make payments or a Creator to receive payment.

 

"Payout Options" the instruction given by each Creator to a Payment Provider as to how Commission will be transferred by the Payment Provider to the Creator.

 

“Privacy Policy” means the privacy policy accessible at https://www.peachly.com/privacy_policy, which combined with these Terms and Conditions represent the Agreement between you and the Company.

 

"Revenue" means the monies paid by a Subscriber to Peachly, LLC to view User Content.

 

“Services” means any and all of the services provided by the Company by any means (including, but not limited to, the Websites, the Apps, or any other technology).

 

"Subscriber" means a User who follows another Creator and views the Creator’s Content.

 

“Terms of Use” means these terms and conditions which, together with the Privacy Policy, represent the Agreement between you and the Company, as varied and as amended by the Company at its full discretion at any time and as published on the Website or any other forum.

 

“User” means any user of the Website, whether a Creator or a Subscriber.

 

"User Content" means any and all photos, videos and other material or facility (including any fan interaction functionality) uploaded onto the Website by a Creator.

 

"User Account" means the section on the Website which can only be accessed by the User which inter alia details the Payment Provider and Payout Options.

 

“Website” means the website at https://www.peachly.com. 

 

As the context may require, words in the singular may be read as the plural and the plural as the singular.

 

PRIVACY POLICY

 

We collect, use and disclose personal information about you, as outlined in detail within our Privacy Policy. You agree that all information you provide as a User or otherwise, including but not limited to information provided through the use of any interactive features on the Website, is governed by our Privacy Policy at https://www.peachly.com/privacy_policy, and you proceed on the basis that you are aware of how we process your personal data, as is set out in our Privacy Policy.

 

ACCOUNT REGISTRATION, ELIGIBILITY AND SECURITY

 

In order to access and use our Services, you must register an account with us which shall abide by the Privacy Policy and these Terms of Use.

 

Your account is personal to you and you are expressly prohibited from providing third parties with access to your account. You agree that in registering an account with us, you will provide us with correct, current, and complete information. You are fully responsible for any and all activities that occur on your account and you are solely responsible for maintaining the security and confidentiality of your username and password. In the event your account is accessed without your consent, you are required to notify us immediately. You also agree to ensure that you log out of your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to access, view or record your password or other personal information. If requested, you must provide us with a form of identification to verify your identity. 

 

If you wish to view User Content you will need to provide details of a payment card to a Payment Provider. Your payment card information is stored by the Payment Provider.

 

If you elect to input two or more payment card details onto your User Account, where payment of the Revenue from the first card is rejected because the payment card is no longer valid then the other payment card(s) will be used to collect full payment of the Revenue.

 

If you are a Creator and wish to receive payment of Commissions, you will need to include onto your User Account Payout Options and upload a valid form of ID. You may also need to submit additional legal information, such as a W-9 Form if you are resident in the United States of America. The exact information required will depend on your country of residence. Amounts due to you as a Creator from Subscribers will be paid to you by one of our Payment Providers in accordance with your Payout Options. With the exception of Creators wishing to receive payment by direct bank transfer from Peachly, LLC, we do not store any data disclosed by you when you register your Payout Options with the Payment Provider. Section 7 further describes the payment processes.

 

By registering on Peachly, you confirm that:

 

You are at least eighteen (18) years old, or have reached the age of majority in your jurisdiction and have the legal capacity to agree to and enter into this Agreement, and perform the acts required of you therein;

 

All your User Account registration and profile information is truthful and accurate and that any User Content you provide is your own and does not infringe the intellectual property rights or any other proprietorial rights of a third party;

 

You will promptly update this information when necessary to ensure that it remains true;

 

If you previously had a User Account with Peachly, your old User Account was not terminated or suspended by Peachly for violation of the Terms of Use;

 

You register on Peachly for your personal use and you will not sell, rent or transfer your User Account to any third party; 

 

You are not a sex offender and/or have not been previously convicted of any kind of sexual offence; 

 

You will not use any third-party payment processors to accept payments for subscriptions, or any other service, via Peachly.

 

Your account credentials are for your personal use only. You will not share access to your account with anyone else. We cannot allow multiple persons to use the same account, and the Site utilizes several techniques to detect such unauthorized account use. If we discover that multiple persons are using the password for a single account, we may suspend the relevant account, or otherwise block your access to the Site without notice. In appropriate cases, we may transmit new account credentials to you, unless we determine that you are responsible for the unauthorized sharing.

 

We disclaim any and all liability arising from fraudulent entry and use of the Site. If a User Account is accessed by fraudulent and/or unlawful means, the Site may terminate the associated account immediately within its sole discretion and take all necessary and appropriate actions under applicable law.

 

You may cancel your account by clicking "Delete Profile" in your account settings. You may also cancel specific subscriptions to individual Creators, without canceling your account.

 

We reserve the right to disable any user name, password, or other identifiers, whether chosen by you or provided by us, at any time and at our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of the Terms of Use.

 

CONDITIONS OF ADMISSION

 

You must satisfy the eligibility criteria above and also accept this Agreement in order to use our Services. The Agreement governs your use of our Services. If you do not accept the Agreement, you are not entitled to access our Services.

 

The Company solely reserves the right to offer admission to its Services in its full discretion. By using our Services, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside.

 

LICENSE

 

Subject to all of the terms, conditions, limitations and restrictions contained in these Terms, we grant to you a conditional, revocable, non-transferable, non-sublicensable, non-exclusive and limited license to use the Website for your own lawful and personal use only. You acknowledge and agree that the foregoing license may be revoked and terminated by Peachly at any time and for any reason (including, without limitation, if you violate these Terms of Use or any applicable law). Any use of Peachly other than as expressly permitted by these Terms of Use is strictly prohibited. All rights not expressly granted herein are reserved by Peachly.

 

You agree not to access, or attempt to access, the Services by any means other than through the Websites or the Apps. You specifically agree not to access or attempt to access, the Services through any automated means (including, without limitation, through the use of scripts, bots, unauthorized third-party apps, spiders or web crawlers).

 

We do not warrant that Peachly is compatible with all devices and operating systems. It is your sole responsibility to determine whether or not Peachly is compatible with your personal device.

 

RESTRICTIONS AND CONDITIONS OF USE

 

You agree that you will not, in connection with your use of the Apps, the Websites and/or the Services, violate any applicable law, ordinance, rule, regulation or treaty.

 

You shall not connect to or use the Apps, the Websites and/or the Services in any way that is not expressly permitted by these Terms of Use.

 

You shall not utilize Peachly for any other use other than for your own lawful and personal use in accordance with these Terms of Use.

 

You shall not impersonate Peachly, one of Peachly’s employees, another User, or any other person or entity, or falsely state, suggest or otherwise misrepresent any affiliation, endorsement, sponsorship between you and Peachly and/or any other person or entity.

 

You shall not falsify account registration information or making unauthorized use of another's information or content.

 

You shall not use Peachly in any manner or for any purpose that is illegal or unlawful, including engaging in any activity that violates any right of any person or entity.

 

You shall not copy, reproduce, distribute, modify, or create derivative works from, any portion of Peachly without our express written permission.

 

You shall not use Peachly for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.

 

You shall not transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.

 

You shall not engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by Peachly, may harm Peachly or Users of the Website or expose them to liability.

 

You shall report any abuses to the Company, as well as any improper comments or conduct by other Users.

 

You shall not create, upload, post, display, publish or distribute User Content that:

 

is obscene, illegal, fraudulent, defamatory, libelous, hateful, discriminatory, threatening or harassing, or in any way which incites violence or violates any of the aforementioned prohibitions;

 

violates another's copyright, trademark, right of privacy, right of publicity, or other property or personal right (for example, using the name, likeness, image or identities of others without proper consent);

 

promotes or advertises escort services;

 

promotes or advertises firearms or other weapons, drugs, or drug paraphernalia;

 

promotes any illegal activity, or advocates, promotes, or assists any unlawful act;

 

causes annoyance, inconvenience, or needless anxiety or is likely to upset, embarrass, alarm, or annoy any other person;

 

involves 3rd party commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter, or advertising; and

 

gives the impression that it emanates from or is endorsed by Peachly or any other person or entity if that is not the case.

 

You shall not remove, erase, modify or tamper with any copyright, trademark or other proprietary rights notice that is contained in any User Content that you do not own.

 

You shall not use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real-time activities through the Website.

 

You shall not decompile, disassemble, reverse engineer, or otherwise attempt to discover or derive the source code of Peachly.

 

You shall not interfere in any way with the operation of Peachly or any server, network or system associated with Peachly, including, without limitation: hacking, mail-bombing, flooding, overloading, or making "denial of service" attacks; probing, scanning or testing the vulnerability of the site or any server, network or system associated with the site; breaching or circumventing firewall, encryption, security or authentication routines; accessing information not intended for you, or accessing another user's account that you are not expressly authorized to access.

 

You shall not use Peachly for any unauthorized purpose, including, without limitation, for purposes of building a competitive product or service, performance or functionality, or for any other competitive purposes.

 

You shall not use any automated program, tool or process (including without limitation, web crawlers, robots, bots, spiders, and automated scripts) to access any Peachly platform or any server, network or system associated with Peachly, or to extract, collect, harvest or gather content or information from Peachly.

 

SUBSCRIPTIONS, BILLING AND PAYMENT OF REVENUE

 

In order to view User Content, you must first add a payment card to your account and then click the 'Subscribe' button on the relevant Creator’s profile. Your payment card details will be passed to a Payment Provider which will take funds from your payment card and pay it into Peachly’s account.

 

Depending on your use of Peachly, the Payment Provider will take monthly payments where applicable. We automatically renew all paid subscriptions before the expiry of the term of the paid Subscriptions (where permitted by applicable law). When you first subscribe for a paid subscription, you acknowledge that when your paid subscription expires, it will automatically renew for the duration and at the cost indicated to you at your initial purchase or as updated from time to time. IF YOU DO NOT WANT YOUR PAID MEMBERSHIP TO AUTOMATICALLY RENEW, YOU MUST CANCEL YOUR PAID MEMBERSHIP IN ACCORDANCE WITH THE PROCESS SET OUT BELOW IN THESE TERMS AND CONDITIONS. If you cancel your monthly subscriptions, you will continue to be permitted to view the Creator's Content until the end of the existing billing period, after which no further funds will be taken from your payment card and you will no longer be able to view the relevant Creator’s Content.

 

If you do not pay any amount due pursuant to these Terms and Conditions:

 

We reserve the right to suspend your access until such time that the outstanding payment is received or to terminate the contract without prior notice. The contract period shall remain unaffected by the temporary closure.

 

We may, in accordance with applicable law, forward any debt in arrears for a reasonable period to an external collection agency for recovery. Debt recovery fees will be charged by the external collection agency on the overdue account balance and the same, including any incidental costs, will be incurred by the defaulting User.

 

In accordance with applicable law, you may be charged 10% of the overdue account balance as an expense for debt recovery.

 

You are entitled to prove through accurate documentation that the account balance is not in fact outstanding, or that the account balance is lower than alleged.

 

This clause shall not affect the assertion of damages caused by the overdue account balance.

 

You understand and agree that it is our standard policy that all payments to view User Content are final and refund requests are handled on a case-by-case basis by CCBill’s (our 3rd party billing agent) Consumer Support department. Please note that cancelation of subscription during the course of the subscription period does not entitle you to a refund of the remainder of the subscription period; you will continue to have access to the Site, the Services, and the feature associated with the subscription for the remainder of the current subscription period.

 

Peachly will procure Payment Providers to ensure that Creators will receive the Commission from Peachly with the difference between the Revenue and Commission being a management fee levied by Peachly and payments due to the Payment Providers. The management fee is for providing, maintaining and operating the Website. The Commission will be 20% of the Revenue generated by Subscribers paying to view User Content uploaded by you.

 

Peachly receives the Revenue and holds the Commission on behalf of the relevant Creator, and not on your behalf as a Subscriber. Once Peachly has received payment from you as a Subscriber you have no further liability to the relevant Creator and the Creator shall allow you as a Subscriber to view their Content.

 

Peachly will take payment of the Revenue from the Subscriber and hold the Commission in Peachly’s capacity as the agent for the Creator.

 

You must promptly inform us of all changes, including changes in your address and changes in your credit card used in connection with billing and/or payment for the Site and Services, if applicable. If you provide any information that is untrue, inaccurate, not current, or incomplete, or if we or any of our authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site and Services, as well as subjecting you to criminal and civil liability. You are responsible for any credit card chargebacks, dishonored checks, and any related fees that the Site incurs with respect to your account.

 

We reserve the right to make changes at any time to our payment and billing methods, including the addition of administrative or supplemental charges for any feature(s) or service(s), with or without prior notice to you.

 

TERM AND TERMINATION

 

This Agreement will become effective upon your acceptance of the Terms and Conditions by your use of the Services and will remain in effect in perpetuity unless terminated hereunder.

 

Either you or the Company may terminate or deactivate your account at any time, for any reason or no reason, without explanation, effective upon sending written notice to the other party. 

 

The Company reserves the right to immediately suspend or terminate your access to any of the Services, without notice, for any reason or no reason. We also reserve the right to remove your account information or data from our Services and any other records if your account and/or access to the Services is terminated. In the event your access to any of the Services is suspended due to a material breach of these Terms and Conditions, you agree that all fees then paid to the Company by you will be non-refundable. 

 

You may deactivate your account by following the steps in the applicable section under "User Profile" section, or by sending a notice of cancellation to us through the contact information provided at the end of these Terms of Use.

 

If you are a Subscriber, then any account deactivation will take place as soon as reasonably possible. You will no longer be charged or have access to User Content. Any subscriptions will be deleted and cannot be subsequently renewed.

 

If you are a Creator then you can only deactivate your membership when your last fan’s/follower’s subscription has expired, and you have withdrawn any balance on your account.

 

If a User is both a Creator and a Subscriber, then the account will be deactivated in two stages (Subscriber and then Creator).

 

You will receive an email confirmation upon the successful deletion of your account.

 

TECHNOLOGY REQUIREMENTS

 

The technology you use to access our Services may be required to meet the minimum specifications provided by us.

 

We may require that you download and install updates to the Apps from time to time as may be applicable. You acknowledge and agree that we may update the Apps with or without notifying you and add or remove features or functions to the Apps (and/or the Apps, the Websites and/or the Services) at any time at our sole discretion.

 

You acknowledge and agree that we have no obligation to

 

make any subsequent versions of the Apps available to you;

 

make the Apps, the Websites and/or the Services available to you at all;

 

continue to support the Apps, the Websites and/or the Services that are available on your outdated device in any way. You acknowledge that your access to the Apps, the Websites and/or the Services may not be continuous, features may change during your use, and we may terminate your access or stop offering any or all of the Apps, the Websites and/or the Services at any time.

 

UPDATES AND AMENDMENTS TO THE TERMS OF USE

 

The Company may update and amend these Terms of Use at any time and the Company will make the updated Terms of Use available through the Services. You understand and agree that you will be deemed to have accepted the updated Terms of Use if you use the Services after the updated Terms of Use are made available to you. If at any point you do not agree to any part of the Terms of Use in operation, you should immediately stop using the Services.

 

PROVISION OF THE SERVICE

 

You acknowledge and agree that the Company may make changes to, or stop providing, the Apps, the Websites and/or the Services, or restrict your use of the Apps, the Websites and/or the Services, at any time without notifying you in advance.

 

You are solely responsible for all data, SMS, mobile carrier, Internet and telecommunications fees and charges incurred in connection with your use of the Apps, the Websites and/or the Services.

 

You acknowledge and agree that the Company can disable or deny you access to the Apps, the Websites and/or the Services, without notifying you in advance, for any reason or no reason including, without limitation, for any violation of these Terms and Conditions and/or if the Company suspects that you have used any aspect of the Services to conduct any fraudulent or illegal activity. If the Company disables your access to your account, you may be prevented from accessing the Services, your account details or any materials contained in your account.

 

USER CONTENT

 

You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

 

You bear all risks associated with use of your User Content. You hereby certify that your User Content does not violate our Restrictions and Conditions of Use. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by the Company. Because you alone are responsible for your User Content, you may expose yourself to liability if you do this. The Company is not obliged to backup any User Content that you post; also, your User Content may be deleted at any time without prior notice to you. You are solely responsible for making your own backup copies of your User Content if you desire.

 

You hereby grant to the Company an irreversible, nonexclusive, royalty-free and fully-paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Site. You hereby irreversibly waive any claims and assertions of moral rights or attribution with respect to your User Content.

 

You shall indemnify Peachly, Peachly’s licensees, successors, and assigns against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred arising out of or in connection with your User Content.

 

Peachly assumes no responsibility for monitoring the Site for inappropriate content or conduct. However, we reserve the right to monitor and delete any information or postings we deem inconsistent with this Agreement, and we may refuse to publish, remove, or block access to any material that is available through the Site or our network or Services without advance notice. If we choose to monitor the Site at any time, we assume (1) no responsibility for the content, (2) no obligation to modify or remove any inappropriate content, and (3) no responsibility for the conduct of the User submitting that content or material. You are solely responsible for the submissions that you make to the Site and for any other material or information that you transmit or share with other users or unrelated persons through the Site.

 

Peachly will fully cooperate with law enforcement authorities or orders from courts of competent jurisdiction, requesting or directing us to disclose the identity or location of anyone posting content in breach of this Agreement, in accordance with our privacy policies, subpoena compliance policies, and applicable law or regulation. If your activity results in the Site receiving a subpoena, discovery request, production order, or court order that causes the Site to incur expenses, court costs, or legal fees for compliance, you agree to reimburse us for any such expenses, costs or legal fees upon our request.

 

Peachly is not responsible or liable to any third party for the content or accuracy of any User Content posted by you or any other user of the Website.

 

Upon signing up to Peachly.com, you also agree to act as custodian of records for the content that you upload to Peachly.com.

 

Any questions regarding User Content can be addressed to us through the contact details provided at the end of these Terms of Use.

 

LINKS TO OTHER WEBSITES

 

Our Services may contain links to other websites and to resources provided by third parties (“Other Sites”). The Other Sites are linked to provide information only and are solely for your convenience. The Company has no control over, does not accept and assumes no responsibility for the content or products or services of Other Sites and does not accept any responsibility for any loss or damage that may arise from your use of them.

 

If you choose to access Other Sites, you do so at your own risk and on the terms and conditions and in accordance with the privacy policy (if applicable) of the Other Sites.

 

Our Services may also feature advertising by third parties. By allowing third parties to advertise on our Services, the Company does not make any representations or warranties in respect of or endorse the products or services advertised.

 

INTELLECTUAL PROPERTY

 

We respect the intellectual property of others and implore upon the Users of our Site to do the same. We comply with the Digital Millennium Copyright Act ("DMCA"). We do not permit copyright infringing activities or infringement of other intellectual property rights on the Site, and we will remove all content and submissions if properly notified that the content or submission infringes on others’ copyrights. 

 

We have adopted a policy regarding termination of repeat copyright infringers in compliance with the DMCA, and we reserve the right to terminate a User's access to the Site, in accordance with our policies. Information regarding the submission of a notice of infringement under the DMCA can be accessible at https://www.peachly.com/dmca.

 

We own or have the license/permission to use all text, graphics, user interfaces, visual interfaces, photographs, videos, trademarks, logos, audio clips, sounds, music, artwork, button icons, streaming data, animation, images, downloadable materials, data compilations, software, and computer code, including the design, structure, selection, coordination, expression, "look and feel," and the arrangement of this content, contained on this Site and all such materials is protected by U.S. and international copyright and intellectual property laws. We retain all right, title, and interest in such materials and compilations thereof. You acknowledge that trade dress, copyright, patent, and trademark laws, and various other intellectual property rights and unfair competition laws, protect the Site and its content. Unless otherwise stated or the context otherwise requires, the following trademark information will apply:

 

"Peachly" is our brand name and trademark. This Agreement does not include any license or rights to use our brand name in any way that would infringe on our rights. Any unauthorized use of our trademarks, trade names, or service marks, will be pursued to the fullest extent of the law.

 

Other parties' product and service names referenced herein may be trademarks and service marks of their respective companies and are the exclusive property of such respective owners and may not be used publicly without the express written consent of the owners and/or holders of such trademarks and service marks.

 

All marks, logos, domains, and trademarks that you find on the Site and Services may not be used publicly except with express written permission from us and may not be used in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits us.

 

You may only access the Site or its content according to these terms and any specialty content terms. You will not make any other use of the Site or its content, including copying, modifying, accessing, or distributing any content. You will not reproduce, imitate, or use the Site's content in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits the Site. If you do any of this, your actions may constitute an infringement of our rights or the rights of third parties and can result in termination of this Agreement.

 

We neither endorse nor recommend the owner of any third-party trademarks which we display on the Site. In addition, our use of trademarks or links to websites owned by third parties does not imply, directly or indirectly, that those owners endorse or have any affiliation with this Site.

DISCLAIMER OF WARRANTIES

 

You understand and agree that your use of the Websites and/or the Services is at your sole risk. The Website is provided on an "as-is" and "as available" basis, and the Company and our suppliers expressly disclaim any and all warranties and conditions of any kind, whether express, implied, or statutory, including all warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. We make not guarantee that the Site will meet your requirements, will be available on an uninterrupted, timely, secure, or error-free basis, or will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe. If applicable law requires any warranties with respect to the site, all such warranties are limited in duration to thirty (30) days from the date of first use.

 

Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.

 

LIMITATION OF LIABILITY

 

To the maximum extent permitted by applicable law, the Company, its subsidiaries or holding company, any subsidiary of any such holding company, affiliates, successors, assigns, and their respective employees, agents, directors, officers and shareholders, whether individually or collectively (the “Related Parties”) shall not be liable to you, under any contract, tort (including negligence), strict liability or other legal or equitable theory, for:

 

Any direct, indirect, incidental, consequential, special or exemplary damages, including loss of profits, use, data or goodwill, arising out of or in any way connected with access to or use of the Apps, the Websites and/or the Services, or affiliated services, even if the Company and/or the Related Parties have been advised or should have been aware of the possibility of any such losses or damages; 

 

The cost of procurement of substitute goods, services or technology; or

 

The deletion of, corruption of, or failure to store any materials, information or data maintained by or through your use of the Apps, the Websites and/or the Services.

 

Some jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages. In such case, our total and aggregate liability to you arising out of or related to your use of (or your inability to use) Peachly or any of its Services or features shall be limited to the maximum extent permitted by law or, if no amount is specified, one hundred US dollars ($100.00).

 

INDEMNIFICATION

 

You agree to indemnify and hold the Company and its officers, employees, and agents harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of:

 

your use of the Site;
your violation of these Terms; 
your violation of applicable laws or regulations; or 
your User Content.  

 

The Company reserves the right to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.  You agree not to settle any matter without the prior written consent of the Company.  The Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

 

GOVERNING LAW AND DISPUTE RESOLUTION

 

The laws applicable to the interpretation of these Terms of Use shall be the laws of the State of Nevada (without regard to the conflict of laws provisions thereof).

 

Applicability of Arbitration Agreement. All claims and disputes in connection with the Terms or the use of any product or service provided by the Company shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English.  This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided by Peachly.

 

Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute describing the nature and basis of the claim or dispute, and the requested relief.  A Notice to the Company should be sent to: 4730 South Fort Apache Road #300 Las Vegas, NV 89147. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the date when the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award to which either party is entitled.

 

Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”) or the International Center Dispute Resolution (“ICDR”), whichever is applicable depending on the circumstances of the case. If AAA or ICDR is not available to arbitrate, the parties shall mutually agree to select an alternative ADR Provider. The AAA or ICDR Rules, whichever applicable, shall generally govern all aspects of the arbitration except to the extent that such rules are in conflict with the Terms. Each party shall bear its own costs and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the Arbitrator or ADR Provider. The Arbitrator’s or ADR Provider’s decision shall be final and binding and judgment may be entered thereon. The number of arbitrators shall be one (1). The place of arbitration shall be the State of Nevada, US. Judgment on the award rendered by the Arbitrator or ADR Provider may be entered in any court having jurisdiction thereof.

 

Time Limits. If you or the Company pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations and within any deadline imposed under the AAA Rules for the pertinent claim.

 

Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under the above Arbitration Clause.

 

Waiver of Class or Consolidated Actions. All claims and disputes within the scope of the above Arbitration Clause must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user.

 

Confidentiality. All aspects of the arbitration proceeding shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

 

Severability. If any part or parts of this Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

 

Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted.  Such waiver shall not waive or affect any other portion of this Agreement.

 

Survival of Agreement. This Agreement will survive the termination of your relationship with the Company.

 

Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures of protection shall not be deemed a waiver of any other rights or obligations under the Arbitration provisions of these Terms of Use.

 

Claims Not Subject to Arbitration. Notwithstanding the foregoing, any claims of a criminal nature, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to arbitration under these Terms of Use.

 

GENERAL PROVISIONS

 

Entire Agreement. These Terms of Use and the Privacy Policy constitute the entire Agreement between you and the Company. If any provision of this Agreement is held by any competent court or authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms of Use and the remainder of the subject provision shall be unaffected and shall remain in full force and effect.

 

No Waiver. No waiver by the Company of any breach of these Terms of Use shall be considered as a waiver of any subsequent breach of the same provision or any other provision.

 

No Agency Relationship. Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein.

 

Assignment and Delegation. We may assign any rights or delegate any performance under this Agreement without notice to you. You will not assign, delegate, or sublicense any of your rights or duties without our advanced written consent. Any attempted assignment or delegation in violation of this provision will be void.

 

Force Majeure. We are not responsible for any failure to perform any of our obligations under these Terms of Use because of unforeseen circumstances or causes beyond our reasonable control, including Acts of God e.g. failure of the telecommunications or information Services infrastructure; hacking, spam, data breach, malware, or any failure of a computer, server, network, or software for so long as the event continues to delay our performance; unlawful acts of our employees, agents, or contractors, fire, floods, earthquakes, hurricanes, tropical storms, or other natural disasters; pandemics; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in facilities, labor, or materials.

 

Electronic Signatures. You agree to be bound by any affirmation, assent, or agreement you transmit through this Site. You agree that when in the future you click on an "I agree", "I consent," or other similarly worded "button”, “checkbox" or entry field with your mouse, keystroke, or other computer devices, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.

 

English language. We have written this Agreement and our associated Site policies in the English language. You are representing your understanding and assent to the English language version of this Agreement as it is published. We are not liable to you or any third party for any costs or expenses incurred in translating this Agreement. In the event that you choose to translate this Agreement, you do so at your own risk, as only the English language version is binding.

 

Usages. In this Agreement, unless otherwise stated or the context otherwise requires, the following usages will apply:

 

References to a statute will refer to the statute and any successor statute, and to all regulations promulgated under or implementing the statute or successor, as in effect at the relevant time.

In computing periods from a specified date to a later specified date, the words "from" and "commencing on" (and the like) mean "from and including," and the words "to," "until," and "ending on" (and the like) mean "to but excluding."

References to a governmental or quasi-governmental agency, authority, or instrumentality will also refer to a regulatory body that succeeds to the functions of the agency, authority, or instrumentality.

"A or B" means either “A or B or both”. "A, B, or C" means "one or more of A, B, and C." The same construction applies to longer strings.
"Including" means "including, but not limited to”.

 

Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of these Terms of Use.

 

Other Jurisdictions/Foreign Law. As indicated in the earlier sections of these Terms of Use, we make no representation that the Site, Services, or any of the materials contained therein are appropriate or available for use in other locations, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the Site and Services from such locations do so on their own initiative and are solely responsible for determining compliance with all applicable local laws. Nothing contained in this Agreement shall be interpreted as an admission that the Site is subject to the laws of any nation besides the United States.

 

Service Not Available in Some Areas. You are subject to the laws of the state, province, city, country, or other legal entity in which you reside and/or from which you access this Site. THIS WEBSITE IS VOID WHERE PROHIBITED OR RESTRICTED BY LAW. If you open an account and/or use this Site while located in a prohibited jurisdiction, you will be in violation of the law of such jurisdiction and this Agreement, and subject to having your account suspended or terminated without any notice to you. You hereby agree that this Site cannot be held liable if laws applicable to you restrict or prohibit your participation. This Site makes no representations or warranties, implicit or explicit, as to your legal right to participate in any Service offered on this Site, nor shall any person affiliated, or claiming affiliation with the Site have authority to make any such representations or warranties. We reserve the right to restrict access to this Site in any jurisdiction.

 

How to Contact Us

 

If you have any questions or comments about these Terms and Conditions, please do not hesitate to contact us through: 

 

Email: support@peachly.com
Telephone: __________________

 

Mailing Address:

 

Peachly, LLC

4730 South Fort Apache Road
#300 Las Vegas, NV 89147.