McPeak™ TERMS & CONDITIONS OF USE
PLEASE READ CAREFULLY BEFORE CONTINUING TO ACCESS, BROWSE OR USE THIS WEBSITE
You accept these Terms by accessing or using this Website in any manner, even if you do not create an account at this Website. To respect the privacy of children and to comply with the Children’s Online Privacy Protection Act, we do not knowingly provide products or services to children under the age of 18. This Website is a general audience site that is not designed nor intended to collect personal information from children. You represent and warrant that you are at least 18 years of age and of legal competence to enter into this agreement. If you are using this Website on behalf of your employer, you represent and warrant that you are authorized to accept these Terms on behalf of your employer.
Acceptance of Terms
IF AT ANY TIME YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN YOU ARE NOT AUTHORIZED TO ACCESS, BROWSE OR USE THE WEBSITE, AND YOU MUST DISCONTINUE USE OF THE WEBSITE IMMEDIATELY.
Use of the Website
We may terminate your right to and deny you access to the Website, or remove any material you have posted at the Website if, in our sole discretion, you fail to comply with any term or provision of these Terms, or for any other reason whatsoever. Except as otherwise provided herein, however, McPeak™undertakes no obligation to police, supervise, or monitor materials posted to the Website by you or other third parties. In addition, the use of particular Services or information on the Website may be subject to additional terms and conditions that will be available in connection with such Services and information.
McPeak™ imposes certain restrictions on your permissible use of the Website. You are prohibited from violating or attempting to violate any security features of the Website, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Website, or any associated system, service or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Website, overloading, “flooding,” “spamming,” “mail bombing” or “crashing”; (d) using the Website to send unsolicited email, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any email or post using the Website; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by McPeak™ in providing the Website. Any violation of system or network security may subject you to civil and/or criminal liability. Without limiting the foregoing, you may not use “bots,” spiders or intelligent agent software (or similar technologies) for any purposes other than accessing publicly posted portions of the Website and only for purposes consistent with these Terms. You may not circumvent any access or use restrictions, data encryption or content protection related to the Website. You may not data mine the Website or in any way cause harm to the Website.
Disclaimer of Warranties
The content provided on the Website is intended for informational purposes only and is not intended to constitute an offer or solicitation. McPeak™ assumes no responsibility or liability for any actions taken as a result of using the Website, or for errors or omissions in the content of the Website.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. ALL USE OF THE WEBSITE, ANY INFORMATION, CONTENT, PRODUCTS, OR SERVICES HEREIN CONTAINED OR PROVIDED AT OR OBTAINED FROM THE WEBSITE, AND ANY FUNCTIONALITY OR SOFTWARE OR PROGRAMMING CONTAINED OR PROVIDED AT THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MCPEAK™ EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AS TO THE INFORMATION, MATERIALS, CONTENT, DATA, PRODUCTS OR SERVICES ON THE WEBSITE OR THE UNINTERRUPTED ACCESS PROVIDED TO OR IN CONNECTION WITH THE WEBSITE.
ALTHOUGH MCPEAK™ ATTEMPTS TO PROVIDE YOU WITH ACCURATE INFORMATION, THE WEBSITE IS INTENDED TO BE FOR INFORMATIONAL PURPOSES ONLY. PRODUCT AND OTHER INFORMATION, INCLUDING PRICING, AVAILABILITY, AND OTHER INFORMATION MADE AVAILABLE ON THE WEBSITE ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO YOU AND MAY NOT BE ACCURATE, COMPLETE, CURRENT OR RELIABLE.
MCPEAK™ MAKES NO REPRESENTATION OR WARRANTY THAT (1) THE WEBSITE WILL MEET YOUR EXPECTATIONS, (2) THE WEBSITE CONTAINS ACCURATE, COMPLETE, CURRENT, ADEQUATE, USEFUL, CORRECT, TIMELY OR RELIABLE INFORMATION, (3) MCPEAK™ WILL UPDATE THE INFORMATION ON THE WEBSITE, (4) THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE (5) ANY ERRORS OR DEFECTS IN THE WEBSITE WILL BE CORRECTED, OR (6) THAT THE WEBSITE IS SECURE, FREE FROM BUGS, VIRUSES, ERRORS, HARMFUL COMPONENTS OR OTHER ISSUES OR LIMITATIONS.
YOUR USE OF THE WEBSITE, PRODUCTS AND SERVICES AND YOUR DEALINGS WITH OTHER USERS ARE AT YOUR OWN RISK. WE EXPECT THAT YOU WILL USE CAUTION AND COMMON SENSE WHEN USING THE WEBSITE.
FURTHER, WITHOUT LIMITING THE FOREGOING, ALL INFORMATION PROVIDED ON THE WEBSITE IS WITHOUT WARRANTY AS TO ITS COMPLETENESS, TIMELINESS, ACCURACY, SUITABILITY OR AUTHENTICITY. YOU SHOULD CONDUCT YOUR OWN DUE DILIGENCE AS TO THE TRUTH, ACCURACY, COMPLETENESS, AND CONTINUING VALIDITY OF ANY INFORMATION SET FORTH IN OR REFERENCED AT THE WEBSITE. LIKEWISE, MCPEAK™ DOES NOT WARRANT THE ACCURACY OF ANY THIRD PARTY CONTENT CONTAINED WITHIN OR REFERRED TO AT THE WEBSITE, INCLUDING ANY LINKS TO THIRD PARTY WEBSITES. MCPEAK™ IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY IN WHOLE OR IN PART TO YOU. IN THAT EVENT, EXCEPT AS PROHIBITED BY LAW, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE YOU FIRST ACCESS THE WEBSITE.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
THIS DISCLAIMER OF WARRANTIES AND LIABILITIES APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF RECORDS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AGREE THAT MCPEAK™ AND ITS AGENTS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, MANAGERS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, VENDORS, ATTORNEYS OR AFFILIATES MAY NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, GENERAL, COMPENSATORY, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OF DATA, BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (EVEN IF MCPEAK™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE WEBSITE; (2) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM THE USE OR INABILITY TO USE THE WEBSITE; OR (3) ANY OTHER MATTER RELATING TO THE WEBSITE, AND WITHOUT REGARD TO WHETHER SUCH DAMAGES, OR CLAIMS OF DAMAGES ARISE BASED IN CONTRACT, TORT OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. HOWEVER, IN THE EVENT THAT ANY OF THE ABOVE LIMITATIONS ARE HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, MCPEAK™ CUMULATIVE, AGGREGATE AND MAXIMUM LIABILITY FOR ANY CLAIMS SHALL NOT EXCEED $1,000.
If you are a California resident, you agree to waive California Civil Code Section 1542, and any similar provision in any other jurisdiction (if you are a resident of such other jurisdiction), which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Information Posted To The Website, Product Information, Specifications, Pricing, Renderings
McPeak™’s’ services, products, and other information posted to the Website are subject to change at any time and may not be accurate, complete, current or reliable. You should not assume that McPeak™ has updated the information, materials or other content on the Website.
McPeak™’s Proprietary Rights, Limited Licenses, Trademarks and Trade Secrets
Unless otherwise noted, the design of the Website, the Website as a whole, and all materials that are part of the Website and Services (collectively, “content”) are copyrights, trademarks, trade dress or other intellectual properties owned, controlled or licensed by McPeak™ or its subsidiaries and affiliates. You acknowledge and agree that any content used in connection with the Website, including any software accessible through the Website, contains McPeak™’s proprietary and confidential information that is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. “McPeak™” and all other McPeak™ product and service names and design logos are trademarks and/or service marks of McPeak™ and/or its affiliates (the “McPeak™ Marks”). As between you and McPeak™, McPeak™ shall own all right, title and interest in and to the McPeak™ Marks. Subject to the Terms, McPeak™ grants you a personal, non-transferable, non-commercial and non-exclusive right and license to use the Website. You are not permitted to (and may not allow any third party to) copy, modify, adapt, translate, lease, rent, loan, distribute, create a derivative work of, reverse engineer, disassemble, decompile, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Website. You agree not to modify any software on the Website in any manner or form or to use modified versions of the software. Without McPeak™’s prior permission, you agree not to display or use the McPeak™ Marks in any manner. McPeak™ reserves all patent, copyright, trade secret, trade name, trademark, service mark, license and other proprietary rights related to the Website, its software and Services and you shall not infringe upon or violate such rights.
Except as expressly noted herein, you may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of, or exploit in any way, any of the content or the Website. Unauthorized use or copying (including electronic copying or downloading) of the Website and content without McPeak™’s express written consent is expressly prohibited by law, and may result in severe civil and criminal penalties.
Opinions, advice, statements, testimonials, reviews, offers or other information or content made available on the Website or through the Services, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content.
McPeak™, in its sole discretion, may terminate your license to use the Website for any reason without prior notice to you. You acknowledge and agree that McPeak™ may immediately bar your further access to the Website. McPeak™ will not be liable to you or any third party for any termination of your access and/or use of the Website.
The Website may provide links to other World Wide Web sites or resources. McPeak™ has no control over or responsibility for such websites and resources. You agree that McPeak™ is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, terms and conditions, or other McPeak™ on or available from such websites or resources. However, we encourage you to read any applicable terms and conditions or privacy policies at such websites. McPeak™ provides these links to you only as a convenience and providing such links does not constitute an endorsement by McPeak™ of such websites or the content, products, advertising, or other materials presented on such websites, including any changes or updates thereto.
Notices to you may be delivered by email, by U.S. mail, or by general notice on the Website. The Website may also provide notices of changes to the Terms or other matters by posting notices or links to notices to you on the Website. McPeak™ is not responsible for keeping your email address, mailing address and/or phone number up to date and accurate.
Release and Indemnification
IN THE EVENT YOU HAVE A DISPUTE WITH ONE OR MORE USERS OF THE WEBSITE OR SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY DISPUTE REGARDING ANY TRANSACTION OR USER GENERATED CONTENT) OR ANY THIRD PARTY WEBSITE THAT MAY BE LINKED TO OR OTHERWISE INTERACT WITH THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY SOCIAL MEDIA SITE, YOU HEREBY AGREE TO RELEASE AND FOREVER DISCHARGE MCPEAK™ AND ITS AGENTS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, MANAGERS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, SUPPLIERS, VENDORS, ATTORNEYS AND AFFILIATES (COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH SUCH DISPUTE AND/OR YOUR USE OF THE WEBSITE AND/OR SERVICES, TO THE FULLEST EXTENT PERMITTED BY LAW.
YOU FURTHER AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, RELEASED PARTIES FROM AND AGAINST ALL CLAIMS, DEMANDS, LIABILITIES, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, UNLAWFUL USE OR OTHER MISUSE, OR INABILITY TO USE THE WEBSITE OR SERVICES, YOUR BREACH OF THESE TERMS, OR OTHERWISE RELATING TO THE BUSINESS WE CONDUCT ON THE WEBSITE (INCLUDING, WITHOUT LIMITATION, ANY POTENTIAL OR ACTUAL COMMUNICATION, TRANSACTION OR DISPUTE BETWEEN YOU AND ANY OTHER THIRD PARTY), ANY CONTENT POSTED BY YOU OR ON YOUR BEHALF TO THE WEBSITE, ANY USE OF ANY SERVICE PROVIDED BY A THIRD PARTY PROVIDER, OR ANY USE OF A SERVICE OFFERED BY US THAT INTERACTS WITH A THIRD PARTY WEBSITE, INCLUDING ANY SOCIAL MEDIA SITE. YOU SHALL COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENSE OF ANY CLAIM. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU AND YOU SHALL NOT SETTLE ANY MATTER WITHOUT OUR WRITTEN CONSENT. THIS SECTION SURVIVES TERMINATION OF THESE TERMS.
Governing Law and Venue for Resolving Disputes
BY AGREEING TO THESE TERMS YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST MCPEAK™ BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE AND FEDERAL COURTS IN THE STATE OF CALIFORNIA OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN SEMINOLE COUNTY, FLORIDA FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND MCPEAK™ WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
- Location. The arbitration will be conducted in Seminole County, FL, unless the parties agree to video, phone and/or internet connection appearances.
- Limitations. You and McPeak™ agree that any arbitration will be limited to the Claim between McPeak™ and you individually. YOU AND MCPEAK™ AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION WILL BE JOINED WITH ANY OTHER ARBITRATION.
- Arbitration Fees. The party seeking the Claim is responsible for the initial fees to AAA. All other fees and costs of the arbitration will be charged pursuant to the AAA Rules.
- Severability. You and McPeak™ agree that if any portion of this Section is found illegal or unenforceable, except any portion of Paragraph 4, that portion will be severed and the remainder of the Paragraph will be given full force and effect. If Paragraph 4 is found to be illegal or unenforceable, then neither you nor McPeak™ will elect to arbitrate any Claim falling within that portion of this Section found to be illegal or unenforceable and such Claim will be exclusively decided by a court of competent jurisdiction within Seminole County, FL and you and McPeak™ agree to submit to the personal jurisdiction of that court.
Modifications to the Website or Services
McPeak™ reserves the right at any time to modify or discontinue, temporarily or permanently, the Website and/or Services (or any part thereof) with or without notice in our sole discretion. You agree that McPeak™ shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Website and/or Services.
Questions or Concerns Regarding The Website