Terms of Service - PyroTree Delivery Solutions

Effective Date: June 8th, 2021

PyroTree Inc. Terms of Service

The following TERMS OF SERVICE (“Terms of Service” or “Terms” or “Agreement”) is a binding agreement between you (hereinafter “User”, “your” or “you”) and PyroTree Inc., and its subsidiaries and affiliates (hereinafter “we”, “us”, “our”, or “PyroTree”) and governs your access to, and use of, the PyroTree website (“Website”) and PyroTree mobile application (“App”) the online ordering platform (“System”), (Website, App, System, each a “Service” and collectively the “Services”).

What is PyroTree.com?

PyroTree is an Integrated online ordering and analytical platform. PyroTree provides an online software, that connects you to Merchants and other food and beverage providers (collectively “Merchants”). The Service permits you to place orders (“Orders”) to Merchants, either for delivery or pickup and once a delivery order is made, the Service notifies Merchants that an individual has ordered food items from the Merchant. It is important to note that PyroTree is not a Merchant, delivery service, nor does it sell physical products. We only provide a comprehensive and integrated online ordering software that allows individuals to connect with Merchants for Orders. PLEASE NOTE THAT IF YOU ARE A MERCHANT REVIEWING THIS POLICY, IN EACH INSTANCE WHERE THE DEFINED TERMS “USER, YOUR, OR YOU” ARE USED, THOSE SHOULD BE REPLACED WITH “MERCHANT” WHEN REVIEWING YOUR LEGAL OBLIGATIONS.

Acceptance of the Terms of Service

By clicking on the “I Agree” checkbox when creating an account on the Service, or by accessing, browsing, or otherwise using the Services, you agree to be bound by the terms herein and any of the related policies, including our Privacy Policy, or guidelines, and any subsequent changes or modifications. You must agree to and accept all of the Terms, or you don’t have the right to use the Services.

If you disagree with any part of the Terms then you do not have permission to access the Services; please close this Website or app, discontinue use, and exit the Services immediately.

THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT WE HAVE AGAINST EACH OTHER ARE RESOLVED. PLEASE NOTE THAT YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION PROVISION COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE CAREFULLY REVIEW THE ARBITRATION PROVISION BELOW.

Changes to This Terms of Service

We are constantly trying to improve our Services, so these Terms may need to change along with the Services as we continue to expand our business and provide you more ways to connect with your favorite Merchants. PyroTree reserves the right to change or modify any of the terms and conditions contained in this Terms of Service, or any policy of the Service, at any time and in our sole discretion. If PyroTree decides to materially change this Terms of Service, it will post a new version on the Services and update the effective date set forth above on this policy. Any material changes or material modifications to this Terms of Service will be effective upon posting of the revisions, but we will make sure to bring it to your attention by emailing you or posting a notice on our website or App. Your continued use of the Services following posting of any changes or modifications constitutes your acceptance of such changes or modifications. You should frequently review these Terms and any other applicable policies, including the Privacy Policy, and their respective dates, to understand the terms and conditions that apply to you when using the Services.

Other Applicable Terms

We take your privacy as a customer of ours very seriously. Please refer to PyroTree’s Privacy Policy, which is incorporated herein by reference, to understand how PyroTree collects, uses and discloses your personal information. You also agree to abide by any additional PyroTree policies for Users that are published on our Services. Certain parts of the Services may be subject to additional terms and conditions, which are incorporated herein by reference.

You further understand and agree that PyroTree provides a technology platform connecting you with Merchants, through the Services, and independent third-party delivery companies (“Third-Party Delivery Companies”). You acknowledge and agree that PyroTree does not itself prepare food or offer delivery services and has no responsibility or liability for the acts or omissions of any Merchant or any Third-Party Delivery Companies. Merchant is the retailer; the services offered by PyroTree pursuant to this Agreement do not include any retail services or any food preparation services. PyroTree is not in the delivery business nor is it a common carrier. PyroTree provides a technology platform that allows Merchants to upload their respective Merchant menus from which individuals can access and view the menu and thereafter order individual food items from a particular Merchant. PyroTree will not assess or guarantee the suitability, legality or ability of any Third-Party Delivery Companies or Merchant. You agree that PyroTree is not responsible for the Merchants’ food preparation or the safety of the food or whether the photographs or images displayed through the Services accurately reflect the food prepared by the Merchants and/or delivered by the Third-Party Delivery Companies and does not verify Merchants’ compliance with applicable laws or regulations. PyroTree has no responsibility or liability for acts or omissions by any Merchant or Third-Party Delivery Companies.

Payment: You understand that: (a) the prices for menu or other items displayed through the Services may differ from the prices offered or published by Merchants for the same menu or other items elsewhere; For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower depending on the final in- store totals and are subject to change at the sole discretion of Merchant. In those situations, PyroTree reserves the right to charge your payment method the final price after checkout. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on PyroTree’s income). In the event that the charge to your payment method may incorrectly differ from the total amount, including subtotal, fees, and gratuity, displayed to you at checkout and/or after gratuity is selected, PyroTree reserves the right to make an additional charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout and/or after gratuity is selected. All payments will be processed by our payment’s processor Braintree Payment Solutions LLC or Global Electronic Technology, using the preferred payment method designated in your Account. We may change our payment process in the future, but please make sure to review our payment processors policies and guidelines, including compliance with PCI guidelines and contact them directly if you have any questions. If your payment details change, your card provider may provide us with updated card details. We may use these new details or details from other cards on file in order to help prevent any interruption to your Use of the Services. If you would like to use a different payment method or if there is a change in payment method, please update your billing information. Charges paid by you for completed and/or delivered orders are final and non-refundable. PyroTree has no obligation to provide refunds or credits, but may grant them, in each case in PyroTree’s sole discretion. PyroTree may change the fees for our Services as we deem necessary or appropriate for our business, including but not limited to delivery fees, service fees, small order fees, and surge fees. PyroTree may also charge merchants fees on orders that you place through the Services, including commissions and other fees, and may change those merchant fees as we deem necessary or appropriate for our business or to comply with applicable law.

Refund Policy. Please note the following when ordering through our Services:

You agree that the food items that you purchase will be prepared by the Merchant you have selected in the Services and that title to those food items purchased pass from the Merchant to you at the Merchant’s location, and that, for delivery orders, the Third-Party Delivery Companies or the Merchant, will be directed by your instructions to transport the food items purchased to your designated delivery location. You agree that neither the Third-Party Delivery Companies nor PyroTree holds title to or acquires any ownership interest in any food items that you order and purchase through the Services.
Merchants set the price of their products on PyroTree, and Merchants and their Third-Party Delivery Companies may charge you additional fees such as shipping and delivery and redelivery fees.
Your order, including delivery fees, may be subject to tax. The amount of the tax depends on things like the products ordered, delivery location, and the legal obligations of the Merchant.
Merchants, at their sole discretion, may make promotional offers with different features and different rates to any User. Please directly contact the Merchant if you have any questions regarding the applicability of any promotional offers.
When you use the Service, you may incur separate and additional charges by your wireless and internet provider(s).
If you wish to change your order for any reason after it has been placed, you should contact the Merchant directly to discuss.
You and the Merchant are directly responsible for any change fees. If alcohol is included as part of your order, it is the responsibility of the Merchant and the Third-Party Delivery Companies to verify identification and age, and to determine whether it is otherwise safe and appropriate to furnish you with alcohol. They may require a valid form of photo identification with birthdate and a signed acknowledgment confirming acceptance at the time of pick-up or delivery. If they cannot verify your age or identity, if you appear intoxicated, or if the situation is otherwise unsafe or inappropriate, they may refuse to furnish you with alcohol. Please also note, that alcohol cannot be left unattended?someone 21 or older must be present to accept and sign for it. If a Merchant is unable to deliver your product for this or a similar reason, the Merchant may charge a restocking fee. Subsequent delivery attempts are at the discretion of the Merchant and are subject to their fees.
A Merchant may refuse, cancel or adjust your order for any reason. If the product you want is not available, the Merchant will notify you and may offer a reasonable substitute or refund your money. If you accept the substitution, the order total will be adjusted accordingly.
Some Merchants limit where they deliver (for example, some Merchants will not deliver to hotels and Merchants). If a Merchant policy prohibits delivery to your address, the Merchant will notify you, cancel your order and issue a refund.
Sometimes the law requires Merchants to limit the number or type of product(s) in your order. If this happens, the Merchant will notify you and offer a reasonable substitute or refund your money. If you accept the substitution, the order total will be adjusted accordingly.
Sometimes product information?such as images, descriptions, availability, pricing and reviews?contains errors. If a Merchant identifies such an error, they will notify you and either offer a reasonable substitute or refund your money. If you accept the substitute, the order total will be adjusted accordingly.
If you receive a product that is not as described (or that you did not order), your sole remedy is to notify the Merchant and the Merchant will in its sole discretion either allow you to return the unused product (within the time period specified by the Merchant) for a refund or provide you with a reasonable substitute. If you accept the substitution, the order total will be adjusted accordingly.

Copyright Policy

All copyrighted and copyrightable materials on the Service, including but not limited to the text, software, methods, systems, design, product information, graphics, images, pictures, sound and other files, and the selection, compilation and arrangement thereof (collectively shall be “Materials”) are the exclusive property of PyroTree Technologies Inc. and/or its licensors.

We respect the intellectual property rights of others. It is our policy to respond to any claim that Materials posted on the Service infringes on the copyright or other intellectual property rights (“Infringement”) of any person or entity.

If you are a copyright owner, or authorized on behalf of one, and you believe that the copyrighted work has been copied in a way that constitutes copyright infringement, please submit your claim via email to legal@pyrotree.com with the subject line: “Copyright Infringement” and include in your claim a detailed description of the alleged Infringement as detailed below, under “DMCA Notice and Procedure for Copyright Infringement Claims.”

You may be held accountable for damages (including costs and attorneys’ fees) for misrepresentation or bad faith claims on the infringement of any Content found on and/or through the Service on your copyright.

DMCA Notice and Procedure for Copyright Infringement Claims

You may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interest.
a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
identification of the URL or other specific location on the Service where the material that you claim is infringing is located.
your address, telephone number, and email address.
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

You can contact our Copyright Agent via email at legal@pyrotree.com.

In accordance with the Digital Millennium Copyright Act (DMCA), it is PyroTree policy to terminate, in appropriate circumstances as determined in our sole discretion, account holders who we determine are repeat infringers.

Intellectual Property

“PyroTree.com,” “PyroTree,” and PyroTree’s logos are trademarks, service marks or registered trademarks of PyroTree Inc. or its suppliers and licensors, and may not be copied, used or imitated, in whole or in part, without the prior written permission of PyroTree or its suppliers or licensors and foreign countries. You may not use meta tags or any other “hidden text” using any of the above-referenced marks without PyroTree’s permission. Additionally, all page headers, graphics, icons, and scripts are service marks, trademarks, and/or trade dress of PyroTree, and may not be copied, imitated, or used, in whole or is. The Service and its original content, features and functionality are and will remain the exclusive property of PyroTree and its licensors. The Service is protected by copyright, trademark, and other intellectual property laws of both the United States part, without PyroTree prior written permission. All other PyroTree names or logos mentioned on the Service, or any other trademarks, registered or otherwise, are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by PyroTree.

You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Materials you access through the Services (even if you are able to download any Materials), and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Materials not owned by you, (i) without the prior consent of the owner of that Materials or (ii) in a way that violates someone else’s (including PyroTree) rights.

Service License and Information

Application License. Subject to the terms of this Agreement, PyroTree grants you a non-transferable, non-exclusive, revocable license (without the right to sublicense) to (i) use the Services only for permitted purposes, and (ii) install and use the App, solely on your own handheld device (e.g., smartphone, tablet or similar device) solely for your personal, non-commercial purposes.

Certain Restrictions. You understand that PyroTree owns the Services. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you shall not access the Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any website content must be retained on any copies.

Modification. PyroTree reserves the right, at any time, to modify, suspend, or discontinue the Services (including the Website and App) or any part thereof with or without notice. You agree that PyroTree will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.

Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services (including the Website and App) are owned by PyroTree or PyroTree’s licensors. The provision of the Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. PyroTree and its suppliers reserve all rights not granted in this Agreement.

Anything you post, upload, share, store, or otherwise provide through the Services is your “User Content.” You own your User Content (except to the extent your User Content contain content owned by a third party, including Merchant content) and you can control how your User Content are shared through your application settings as further described below. If you submit User Content that contains Content you do not have the right to use or share, we may remove it in accordance with our Copyright Policy described above. Some User Content are viewable by other users. In order to display your User Content on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Content. Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Content that are also your personally identifiable information.

For all User Content, you hereby grant us a license to translate, modify (for technical purposes, for example making sure your content is viewable on a smartphone as well as a computer) and reproduce and otherwise act with respect to such User Content, in each case to enable us to operate the Services, as described in more detail below. This is a license only ? your ownership in User Content is not affected.

If you store User Content in your own personal account, in a manner that is not viewable by any other user except you (a “Personal User Content”), you grant us the license above, as well as a license to display, perform, and distribute your Personal User Content for the sole purpose of making that Personal User Content accessible to you and providing the Services necessary to do so.

If you share a User Content only in a manner that only certain specified users can view (for example, a private message to one or more other users) (a “Limited Audience User Content”), then you grant to us the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Content for the sole purpose of making that Limited Audience User Content accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Content, and to use and exercise all rights in it, as permitted by the functionality of the Services.

If you share User Content publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a “Public User Content”), then you grant us the licenses above, as well as a license to display, perform, and distribute your Public User Content for the purpose of making that Public User Content accessible to all users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Content in connection with the Services. Also, you grant all other users of the Services a license to access that Public User Content, and to use and exercise all rights in it, as permitted by the functionality of the Services.

In addition, you grant us, a license to use your Public User Content (including without limitation your image, voice, and likeness to the extent included in Public User Content) in promotions and advertising in any medium for our Services. For example, we may use your publicly posted videos, chats, images, Reviews (defined below), ratings, and other content posted using the Services in our advertising on social media and other platforms to promote our Services. You continue to own your Public User Content and our rights are a limited license as stated herein.

You agree that the licenses you grant are non-exclusive, royalty-free, perpetual, sublicenseable, irrevocable, and worldwide, provided that when you delete your account, we will stop displaying your User Content (other than Public User Content, which may remain fully available) to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from our records, and that your User Content may remain viewable elsewhere to the extent that they were copied or stored by other users.

Finally, you understand and agree that we, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Content to conform and adapt those User Content to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

To the extent that you rate and post reviews of Merchants (“Review/s”), such Reviews are considered User Content and are governed by this Agreement. Reviews are not endorsed by PyroTree and do not represent the views of PyroTree. PyroTree shall have no liability for Reviews or for any claims for economic loss resulting from such Reviews. You agree that:

You will base any Review on first-hand experience with the Merchant;
You will not provide a Review for any Merchant for which you have an ownership interest, employment relationship or other affiliation or for any of that company’s competitors;
You will not submit a Review in exchange for payment, free food items, or other benefits from a Merchant;
Any Review you submit will comply with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising; and
Your Review will comply with the terms of this Agreement.

If we determine, in our sole discretion, that any Review could diminish the integrity of the Reviews or otherwise violates this Agreement, we may remove such User Content without notice to You.

Links and Third-Party Content

PyroTree may use third party service providers at its discretion. Further, PyroTree or third parties may provide links on the Service to other sites or content. PyroTree has no control over such sites or content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the quality, content, nature or reliability of sites or content linked to by the Service. An inclusion of any link on the Service does not imply our affiliation, endorsement, or adoption of the linked site or any information therein. When you leave the Website, our terms and policies no longer govern. You should review applicable terms and policies, including the privacy and data gathering practices, of any third-party sites. PyroTree has no control over and cannot be responsible for third party service providers.

You acknowledge and agree that the availability of the Services, via our App, is dependent on the third party from which you received the application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge and agree that these Terms is between you and PyroTree and not with the App Store. PyroTree, not the App Store, is solely responsible for the App, the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Services, you must have access to a wireless network. You also agree to pay all fees (if any) charged by the App Store in connection with the Services. You agree to comply with, and your license to use the Services is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Software or the Services. You represent and warrant that you are

not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country,
not listed on any U.S. Government list of prohibited or restricted parties.

You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.

Accounts

Account Creation. In order to use certain features of the Services, you must register for an account (“PyroTree Account”) on the Website or App and provide certain information about yourself as prompted by the registration form. You may also login using a third-party plugin such as Google login, Apple login, and/or Facebook log, in which case you must login using the credentials for those respective third-party plugins. Please note that when logging in using a third-party plugin, you agree to that third party’s policies and guidelines.

You represent and warrant that:

All required registration information you submit is truthful, accurate, complete, and up to date;
You will maintain the accuracy of such information;
Your use of the Services does not violate any applicable law or regulation or the terms of this Agreement; If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law;
You will select a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person;
You will not transfer your account to anyone else without our prior written permission;
You represent and warrant that you are of legal age, in the jurisdiction in which you reside, to form a binding contract;
You will only use the Services in a manner that complies with all laws that apply to you;
You will not share your account or password with anyone, and you must protect the security of your account and your password; and
You will responsible for any activity associated with your PyroTree Account.

User Profile. Your PyroTree Account allows you to create a personal profile, place Orders, provide Reviews, post User Content, and send messages to the Merchant.

Account Responsibilities. You are responsible for maintaining the confidentiality of your PyroTree Account login information and are fully responsible for all activities that occur under your PyroTree Account. You agree to immediately notify PyroTree of any unauthorized use, or suspected unauthorized use of your PyroTree Account or any other breach of security. PyroTree cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. We will protect your PyroTree Account information in accordance with the Privacy Policy. You agree not to create an account or use the Services if you have been previously removed by PyroTree, or if you have been previously banned from use of the Services.

No Warranties

The Services and the Materials contained therein are provided on an “as is” and “as available” basis without warranties of any kind, express or implied. You expressly agree that use of the Services, including all content or data distributed by or downloaded or accessed from or through the Website or App, is at your sole risk. PyroTree disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement as to the information, materials, and content on the Website or App. Without limiting the foregoing, PyroTree, its subsidiaries, its affiliates, and its licensors do not warrant that any content is accurate, reliable or correct; that any services will meet your requirements; that any of the Services will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that any of the Services are free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of any Services is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the service.

PyroTree does not warrant, endorse, guarantee, or assume responsibility for: (i) any product or service purchased in connection with the Services; (ii) financial product or service, or insurance product or service purchased in connection with the Services; or (iii) any product or service advertised or offered by a third party through Services or any hyperlinked website or service, and PyroTree will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.

Indemnification and Your Liability

You are solely responsible for your activities on our Service, including all User Content that you submit or a third party submits on your behalf or using your PyroTree Account. You agree to indemnify, defend, and hold harmless PyroTree and its subsidiaries and affiliates and each of its shareholders, directors, officers, employees, agents, successors and assigns against any and all claims, actions, demands, suits and all related losses, liabilities, damages, penalties, costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by an indemnified party arising out of or related to: (a) any violation of law or regulation from your use of the Service, (b) any actual or alleged breach by you of any obligations, representations, warranties under this Terms of Service; and (c) any actual or alleged infringement or misappropriation of the intellectual property rights of any third party by all User Content that you submit or a third party submits on your behalf or using your account. Your obligation to compensate us during the immediately preceding sentence may be adjusted if it is considered unreasonably burdensome or unfair. PyroTree undertakes to indemnify and hold you harmless from any direct damages caused by PyroTree due to its gross negligence.

MERCHANTS RELEASE

Without limiting the forgoing provision, Merchants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you as a result of your interaction with Merchant or the use of any promotion, offer, food item, product or service of a Merchant’s. You must resolve all disputes directly with the Merchant. To the maximum extent permitted by applicable law, you hereby release PyroTree from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the PyroTree pertaining to the subject matter of foregoing.

LIMITATION ON LIABILITY

IN NO EVENT, SHALL WE (AND OUR SUPPLIERS), AND EACH OF OUR AFFILIATES, SUBSIDIARIES, AGENTS, DIRECTORS, EMPLOYEES, LICENSORS, SUCCESSORS, AND ASSIGNS BE LIABLE FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES (INCLUDING THE WEBSITE OR APP), OR THIRD-PARTY SITES, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES (INCLUDING THE WEBSITE, OR APP), AND THIRD-PARTY SITES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. FURTHER, UNDER NO CIRCUMSTANCES WILL PYROTREE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR PYROTREE ACCOUNT OR THE INFORMATION CONTAINED THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICES (INCLUDING THE WEBSITE OR APP), FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID PYROTREE IN THE PRIOR 12 MONTHS (IF ANY). PYROTREE IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY MERCHANT FOR WHICH A USER HAS ORDERED ANY FOOD OR BEVERAGE ITEMS, CLAIMED AN OFFER OR PROMOTION THROUGH A COUPON, OR PAID A BILL USING THE PAYMENT SERVICES OR ANY MERCHANT THAT ISSUES A MERCHANT GIFT CARD.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

Applicable Law and Venue

This Terms of Service and any transactions on this Service shall be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions. Any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association and the International Centre for Dispute Resolution and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. YOU AND WE AGREE TO WAIVE THE RIGHT TO A JURY TRIAL, AND ALSO THE RIGHT TO PROCEED IN A REPRESENTATIVE OR CLASS ACTION MANNER, AND CLAIMS WILL BE HEARD ON AN INDIVIDUAL BASIS ONLY BY A QUALIFIED ARBITRATOR. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

Interruption of Service

Your access and use of Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Services or other actions that PyroTree, in its sole discretion, may elect to take. In no event, will PyroTree be liable to any party for any loss, cost, or damage that results from any scheduled or unscheduled downtime.

Your sole and exclusive remedy for any failure or non-performance of the Services, including any associated software or other materials supplied in connection with such services, shall be for PyroTree to use commercially reasonable efforts to effectuate an adjustment or repair of the applicable service.

Term and Termination

Subject to this Section, this Agreement will remain in full force and effect while you use the Services. We may (a) suspend your rights to use the Services (including your PyroTree Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Services in violation of this Agreement or if we believe you are under the age of 13 (and further if we believe you are under the age of 21 and are trying to purchase alcoholic beverages). Upon termination of this Agreement, your PyroTree Account and right to access and use the Services will terminate immediately. You understand that any termination of your PyroTree Account involves deletion of your User Content associated therewith from our live databases. PyroTree will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your PyroTree Account or deletion of your User Content.

Acceptable Use Policy

Without limiting other rules and guidelines in this Agreement, by using the Services, You agree:

You will not to use the Services to collect, upload, transmit, display, or distribute any User Content:
- (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
- (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, abusive, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or
- (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
You will not to use the Services to:
- (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data;
- (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise;
- (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent;
- (d) interfere with or disrupt servers or networks connected to the Services or violate the regulations, policies or procedures of such networks or otherwise interferes with our operation or provision of the Services;
- (e) attempt to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means; or
- (f) harass or interfere with another user’s use and enjoyment of the Services.

System and Network Security

You are prohibited from violating the security of any system or network comprising the Service. Such violations may result in criminal and civil liability. Examples of system or network security violations include, without limitation, the following:

Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of the Service or to breach security or. authentication measures.
Unauthorized monitoring of data or traffic on the Service.
Interference with the Service including, without limitation, any type of flooding technique or deliberate attempt to overload a system such as denial of service attacks.
Forging of any packet header, e-mail header or any part of a message header. This prohibition does not include the use of aliases or anonymous remailers.
Using manual or electronic means to avoid any use or access limitations placed on this Service.

Entire Agreement

This Agreement (which includes the Privacy Policy and any other rules posted while using the Service) constitutes the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without PyroTree’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.

Enforcement

Notwithstanding anything to the contrary in this Terms of Service, PyroTree reserves the right, but does not assume the obligation, to investigate any violation of these Terms or any other misuse of the Services (including User Content) or its systems, equipment or network. PyroTree further reserves the right (each in its sole discretion) to screen, edit, modify, remove or disable access to any content that violates these provisions or that PyroTree deems objectionable, or violates the rights of, harms, or threatens the safety of any person, or if in our sole judgement, creates liability for us or any other person. Without imitating the foregoing, and notwithstanding anything contrary in our Privacy Policy, PyroTree reserves the right to report any activity, data or persons (including the disclosure of relevant user information such as PyroTree Account username and password, IP address and traffic information, usage history, and your User Content) to appropriate law enforcement officials, regulators, or other appropriate third parties if PyroTree suspects you have violated the PyroTree’ Terms of Service or any law or regulation. PyroTree also may cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct.

More Information

If you think we missed anything or you’re not sure about something within this Agreement, feel free to reach out to our team at: legal@pyrotree.com.

ADDITIONAL TERMS FOR MERCHANT’S ONLY

PyroTree agrees to maintain and operate a MicroSite (“MS”) and to obtain the domain for such MS on Merchant’s behalf.
Merchant agrees to use its best efforts to prepare and deliver food orders placed via the System in accordance with the specifications (regarding delivery hours, minimum charges, etc.) set forth on order form (the “Specifications”). The Specifications and item pricing must be at least as favorable to the consumer as that which is available for Merchant’s standard delivery/takeout menu or offered to any 3rd party service. Changes to Specifications and menus require reasonable advance notice. Merchant will provide notice to staff that telephone conversations related to the Services may be recorded and that staff must advise caller that CSC (Card Security Code)/CVV/CVV2 should not be transmitted over the phone.
Merchant agrees that it will maintain the confidentiality of all non-public information that Merchant acquires in the course of performing this Agreement, including without limitation all customer information, as well as the terms and conditions of this Agreement (the “Confidential Information”). Merchant will not directly market to or solicit any consumer or company obtained through the System or via the Services for the purpose of soliciting that customer to order directly from Merchant or through a 3rd party. (This excludes paper menus.)
Merchant represents and warrants: (i) it has the authority to enter into this Agreement, and doing so won’t violate any other agreement to which it is a party; (ii) the Merchant Content won’t violate the rights of any 3rd party; (iii) it will comply with all laws, rules and regulations relating to the preparation, sale and delivery of food and drink (including alcohol), including any laws regarding timely and full payment of tips, as well as any other laws applicable to its business; and (iv) it will remit to the applicable taxing authority all legally-required taxes and will file all required tax returns and forms.
Package Subscription (“Commission”) selected by Merchant will be charged on the product total plus any delivery fees. A minimum of one time per month, PyroTree will mail or wire to Merchant the “Payment Amount.” Payment Amount means the “Grand Total (including product, tax, tip and delivery or other fees) received by PyroTree on behalf of Merchant as Merchant’s agent (net of cash orders received by Merchant) for Orders in a monthly time period or such other time period as the parties may agree, less Commission set forth in 3(a), and on prepaid orders processed by PyroTree, less a processing fee (inclusive of credit charges) on the Grand Total.
PyroTree is an independent contractor of Merchant. This Agreement can only be modified in writing signed by both parties.

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