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p!ng Terms and Conditions of Use

Effective as of July 2024

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE DOWNLOADING, ACCESSING, OR USING ANY sZipps Inc. (DBA p!ng) ONLINE SERVICES or p!ng PODS (AS DEFINED BELOW).

BY ACCEPTING THESE TERMS AND CONDITIONS OF USE, AS DETAILED IN SECTION XVIII BELOW, YOU AGREE TO RESOLVE ANY DISPUTE IN ANY WAY ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OF USE, OUR PRIVACY POLICY, DATA SECURITY, OR DATA PRIVACY THROUGH BINDING ARBITRATION OR SMALL CLAIMS DISPUTE PROCEDURES, UNLESS OTHERWISE PROVIDED BELOW, AND YOU AGREE TO WAIVE YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION SUIT. 

BY ACCEPTING THESE TERMS AND CONDITIONS OF USE, YOU ALSO AGREE TO OUR PRIVACY POLICY, LOCATED AT https://www.pingthru.com/legal, WHICH IS INCORPORATED INTO THESE TERMS AND CONDITIONS OF USE AND MAY BE UPDATED FROM TIME TO TIME.

Table of Contents
 

I. Introduction
II. Modifications to the Terms and Conditions of Use
III. Use of P!NG Online Services
IV. User Conduct
V. Submissions
VI. Programs and Promotions; Digital Offers
VII. P!ng® App 
VIII. Copyright Infringement Notification
IX. Login and Registration
X. Third-Party Sites and Social Media Pages
XI. Privacy
XII. Ownership of Intellectual Property 
XIII. Electronic Communications
XIV. No Warranties
XV. Limitations of Liability 
XVI. Indemnification
XVII. International Users and Choice of Law  
XVIII. Dispute Resolution, Binding Arbitration, and Class Action Waiver 
XIX. No Agency Relationship
XX.  Violations and Remedies
XXI. Entire Agreement, Claims Limitations, and Severability
XXII. Contact Information 

 

 I.  Introduction

These Terms and Conditions of Use ("Terms and Conditions of Use") apply to your access to, and use of, any p!ng website, mobile application, physical site with a pod/kiosk, and online service or program where these Terms and Conditions of Use are posted, linked or incorporated by reference. These Terms and Conditions of Use are a legal and binding agreement between you and p!ng. These Terms and Conditions of Use govern your use of p!ng Online Services, which includes the programs, offers, content, information, services, and features made available through p!ng Online Services. If you do not agree to these Terms and Conditions of Use, then you should not use p!ng Online Services.

Your use of p!ng Online Services or p!ng pod is at your risk. If you are dissatisfied with p!ng Online Services or p!ng pod in any way, your sole and exclusive remedy is to discontinue accessing and using p!ng Online Services and p!ng pod.


II.  Modifications to the Terms and Conditions of Use

We reserve the right at any time to update, change, modify, or revise these Terms and Conditions of Use. Any changes will become effective upon posting to p!ng Online Services, along with the date on which it was most recently updated as indicated by the "Last Updated" notice above. Your continued access to or use of p!ng Online Services and its programs and offers after any such changes indicates your acceptance of the Terms and Conditions of Use as modified. It is your responsibility to review the Terms and Conditions of Use regularly for updates.

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III. Use of p!ng Online Services

P!ng Online Services and all content, information, and other materials featured, displayed, contained, and available on p!ng Online Services or at physical sites, including, but not limited to, all text, images, graphics, designs, illustrations, photographs, pictures, audio, software, and video clips, the “look and feel”, pages, screens, content arrangement, and computer programs (collectively, "Materials") are owned by or licensed to p!ng and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property rights and unfair competition laws under United States and foreign laws. Subject to your compliance with these Terms and Conditions of Use, we grant you a personal, non-exclusive, non-transferable, limited right to access, use, display, and download p!ng Online Services for noncommercial purposes only. You may view, display, copy, download, and print the Materials solely for your own personal, noncommercial use. All copyright, trademark, and other proprietary notices contained on the Materials must be retained on all copies thereof. You may not, in any way, otherwise copy, reproduce, distribute, transmit, display, perform, reproduce, publish, license, modify, create derivative works from, sell, or exploit, in whole or in part, p!ng Online Services or its Materials. Except as expressly provided herein, we do not grant any express or implied right to you under any patents, trademarks, copyrights, or trade secret information.

You agree to abide by all additional terms, conditions, and restrictions included within p!ng Online Services, the Materials, and/or the programs, features, and services.

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The display of a menu item on p!ng Online Services does not mean that the menu item is available as all items are subject to availability and available while supplies last. We make a reasonable and good-faith effort to display and describe the menu items available through p!ng Online Services accurately and completely. However, the detail and accuracy of the images and specifications of menu items that you see will depend on a number of things. Consequently, we do not guarantee that the products, images, services, or descriptions displayed or described to you are or will remain accurate or complete in every detail. Further, we may update the products, images, available features, services, or specifications from time to time. 

P!ng may at any time, for any reason, and without notice or liability: (1) modify, suspend, or terminate operation of or access to any of p!ng Online or Physical Services, or any portion thereof; (2) change, revise, or modify p!ng services, the materials, or any portion thereof; (3) interrupt the operation of p!ng services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction, or for any other purposes; (4) impose limits on certain programs, features, and services, or restrict your access to p!ng services, in whole or in part; and/or (5) terminate the authorization, rights, and license given above, upon which you shall immediately destroy all Materials.

IV. User Conduct

You agree to use p!ng Online Services, the Materials, the physical kiosk/pods, and the programs, features, and services, including, without limitation, ordering and delivery services, in accordance with these Terms and Conditions of Use and all applicable laws and regulations. You agree to remain courteous and respectful toward employees, contractors, and agents of P!ng, our partners, other users of p!ng Online Services, and our physical sites including kiosk/pods, sensors, signs, parking lots, etc. You agree NOT to:

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  • modify, adapt, translate, or reverse engineer any portion of p!ng Online Services or the Materials;

  • use p!ng Online Services or any Materials, features, or services for any unlawful, fraudulent, or malicious purposes, or to further or solicit any such activity;

  • attempt to gain unauthorized access to any accounts, features, systems, or networks through hacking, password mining, or any other means;

  • frame or mirror any portion or feature of p!ng Online Services;

  • use p!ng Online Services or any feature in any way that could disrupt, damage, disable, overburden, or impair it or its systems, servers, or networks;

  • use p!ng Online Services or any feature for advertisements, chain letters, spamming, junk mail, solicitations, or any other commercial purposes;

  • use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm, or methodology, or any similar or equivalent manual process, to: (1) access, acquire, copy, or monitor any portion of p!ng Online Services or the Materials; (2) reproduce or circumvent the navigational structure or presentation of p!ng Online Services or the Materials; or (3) obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through p!ng Online Services;

  • use any device, software, or routine to interfere or attempt to interfere with the proper working of p!ng Online Services or with any other person’s use or enjoyment of p!ng Online Services;

  • transmit any viruses, worms, defects, Trojan horses, time bombs, cancel-bots, corrupted files, or other items of a destructive nature;

  • circumvent or attempt to circumvent any security or authentication measures implemented by or on behalf of p!ng;

  • forge headers or otherwise manipulate identifiers;

  • post, transmit, submit, or include any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable content, material, or information of any kind, or any content, material, or information that may give rise to criminal or civil liability;

  • harass, abuse, stalk, intimidate, threaten or engage in any conduct that harms, harasses, or offends any employees, contractors or agents of p!ng or partners engaged in the provision of services, including the delivery of any orders, and other users of p!ng Online Services;

  • submit, display, or post any false or misleading information; 

  • violate, infringe, or misappropriate the intellectual property, publicity, privacy, or other proprietary rights of p!ng or any other person or entity; and/or

  • transfer or attempt to redeem any verification code for a mobile or online order or digital offer or reward in prohibition of the applicable terms. Attempts to redeem single use offers and verification codes multiple times or through multiple users constitutes fraud. 

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Rules of Accessing Products and Interacting with a p!ng Pod/Kiosk

 

When collecting a p!ng product, the customer must agree to:

  • treat other customers, p!ng employees, and p!ng property with respect

  • obey any traffic rules when entering, on, or leaving a p!ng site

  • stay in your vehicle

  • obey all signs and instructions given by employees

 

When collecting a p!ng product, the customer must agree NOT to:

  • drive faster than 10 mph on a p!ng site

  • attempt to enter a pod/kiosk

  • attempt to remove or alter a pod/kiosk or wires/cables in any way

  • remove, touch, alter or block any signs or sensors

  • attempt to take another customer's order

  • walk up to a drive-thru pod/kiosk

  • leave any items such as trash or foreign substances anywhere on the site, pod/kiosk, or presentation tray

  • intentionally spill any liquids anywhere on the site or pod/kiosk

  • attempt to cut in line

  • stick anything or any part of your body in the presentation window while it is moving

  • park in front of the pod/ kiosk and block the flow of traffic

 

We reserve the right to prohibit access, use, conduct, communications, or content that we, in our sole discretion, deem to be harmful to us, p!ng Online Services, the Materials, our users, our brand, p!ng property including p!ng pods, our sites or any other person or entity, or that violates these Terms and Conditions of Use, and/or applicable law. P!ng further reserves the right to terminate, suspend, or cancel your account, or otherwise refuse delivery of any orders, including those placed through the p!ng App, if p!ng believes that you have violated or acted inconsistently with these Terms and Conditions of Use, or applicable law, or that you have acted in a manner harmful to our interests, or that you may be likely to do so based upon prior communications, conduct, interactions, or similar factors.

P!ng shall be the sole arbiter in cases of suspected abuse, fraud, or violations of these Terms and Conditions of Use, and any decision it makes relating to termination or disabling of p!ng Online Services, accounts or refusal to deliver any orders, including those placed through the p!ng App, shall be final and binding.  

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V.  Submissions

Except for any personally identifiable information we may collect from you under the guidelines established in our Privacy Policy, any materials, remarks, suggestions, ideas, photos, stories and/or other information you communicate or submit to us through p!ng Online Services via phone or otherwise ("Submissions") will be considered non-confidential and non-proprietary. By providing a Submission to us, you expressly grant us an unrestricted, irrevocable, perpetual, transferable (i.e., fully assignable and sub-licensable), worldwide, royalty-free license to disclose, copy, reproduce, display, publicly perform, transmit, distribute, translate, reformat, incorporate, and otherwise use your Submission along with your name, photograph, voice, likeness and other information, content, or materials embodied therein, in whole or in part, and create derivative works therefrom, in any media now known or hereafter developed, and for any and all commercial or non-commercial purposes without compensation to you or anyone else. You also permit any user to access, display, view, store, and reproduce, for personal use only, your Submission as posted by us.

We may, but shall not be obligated to, in our sole discretion, post any Submission on p!ng Online Services and identify you as the submitting party. We may, without notice to you, refuse or edit Submissions for any reason or no reason, including those Submissions that violate these Terms and Conditions of Use, are irrelevant or inappropriate, or represent us in a negative way or in any manner not consistent with our brand and/or reputation, as determined by us in our sole discretion.

You agree that any statements that you make about us or any of our products, services, or programs in any Submission that you make accurately reflect your personal beliefs and experiences with us and our products and services, and that any opinions submitted are true to the best of your knowledge.

You are fully responsible for your Submissions. You agree that your Submissions comply in all respects with these Terms and Conditions of Use and shall not be made on behalf of any person or entity without their prior written consent. You may not include any content (e.g., text, photos, images, quotes, logos, etc.) that is the property of another (e.g., protected by copyright, trademark, or other intellectual property rights), unless you have express, written permission to do so.

VI.  Programs and Promotions; Digital Offers

Any programs, offers, sweepstakes, contests, raffles, surveys or other similar promotions (collectively, "Promotions") made available through p!ng Online Services may also be governed by rules and/or terms that are additional to these Terms and Conditions of Use. By participating in any such Promotion, you will become subject to any such additional Promotions terms. P!ng urges you to read the applicable Promotions terms, which are either included herein or linked from the particular Promotion, and to review our Privacy Policy which, in addition to these Terms and Conditions of Use, governs any information you submit in connection with any such Promotions.

You may receive digital offers through p!ng Online Services from time to time. The following general terms apply to these offers:

  • Redemption period for each offer begins and ends as indicated.

  • Offers are single use only, unless otherwise stated. Once a digital offer code has been redeemed, it will no longer be available.  

  • Offers may only be redeemed at participating p!ng pods.

  • Serving times apply and some food and/or beverage items may not be available at all times or locations.

  • Offers are not transferable.

  • Offers are void where restricted, prohibited or taxed, or if reproduced, altered, purchased, distributed, auctioned, or sold. 

  • Offers are not eligible for cash refunds and have no cash value. Use with other offers may be restricted.

  • Monthly transfer limits apply.

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VII.  p!ng® App

In order to use p!ng Online Services made available through the p!ng App (“the App”) you must have a compatible mobile device; p!ng does not warrant that the App will be compatible with your mobile device. If you access the App using an Apple iOS or Android powered device, Apple Inc. (“Apple”) or Google, Inc. (“Google”), and their subsidiaries, respectively, shall be a third-party beneficiary to this contract and you agree that these third-party beneficiaries have the right to enforce these Terms and Conditions of Use against you. However, these third-party beneficiaries are not a party to these Terms and Conditions of Use and are not responsible for the provision or support of the App. You agree that your access to the App also shall be subject to the usage terms set forth in the applicable third-party beneficiary’s terms of service.   

The App may automatically download and install updates from time to time or require the downloading and installation of updates or new versions for continued use. You acknowledge that in some instances, updates and/or new versions may reduce or remove features and functionality in prior versions of the App.

You acknowledge that Apple and Google are not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. You further acknowledge that, in no event, shall Apple or Google be responsible for the investigation, defense, settlement and discharge of any third-party claim that the App infringes that third party’s intellectual property rights.

In order to take advantage of certain services made available through the App, including mobile payment, mobile ordering, and Promotions (including but not limited to digital offers), you must have a valid p!ng account.

Conditions will also apply.

 

VIII.  Copyright Infringement Notification

The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. Copyright Law. If you believe in good faith that Materials available on p!ng Online Services infringe your copyright, you (or your agent) should send us a notice requesting that we remove the Material or block access to it. If you believe in good faith that someone has wrongly submitted a notice to us under this paragraph, then you should send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See https://www.copyright.gov/ for details.

If you believe that your work has been improperly copied and posted on p!ng Online Services, then please provide us with the following information: (1) name, address, telephone number, email address, and an electronic or physical signature of the copyright owner or of the person authorized to act on his or her behalf; (2) a description of the copyrighted work that you claim has been infringed; (3) the applicable p!ng Online Service and a description of where the Material that you claim is infringing is located within such p!ng Online Service; (4) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) 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. These requirements must be followed to give us legally sufficient notice of infringement.

Notices and counter-notices should be sent to:

sZipps Inc. (DBA p!ng)
ATTN: Legal
14 Hawks Ridge Rd

N. Billerica, MA 01862 
email: support@ping.com

DMCA details are available at https://www.copyright.gov/onlinesp/.

We suggest that you consult your legal advisor before filing a notice or counter-notice. Please be aware that there may be penalties for false claims under the DMCA.

IX.  Login and Registration

Certain programs, offers, features, or services offered on or through p!ng Online Services may require you to complete a registration process and/or setup an account or login. In connection therewith, you agree to (1) provide true, accurate, current, and complete information about yourself, and (2) maintain and promptly update your information to keep it true, accurate, current, and complete. You are entirely responsible for maintaining the confidentiality of the information you hold for your login, including your password. You agree to notify p!ng immediately of any unauthorized use of your login, or any other breach of security. You may be held liable for losses incurred by p!ng or any other p!ng Online Service user or visitor due to someone else using your login as a result of your failing to keep your login information secure and confidential.  You may not use anyone else’s login at any time without their express written permission. P!ng shall not be liable for any loss or damage arising from your failure to comply with these obligations.

 

Multi-Factor Authentication SMS Terms.  For security purposes, you will be required to provide a one-time code sent to you via text message any time you sign-up for or log-in to your p!ng account, known as “multi-factor authentication.” One message per sign-up or log-in attempt.  You acknowledge and agree that p!ng may send a confirmation text message with the one time code for authentication any time you sign-up or log-in to your p!ng account.  Message and data rates may apply. Contact your wireless provider for more information about your text plan or data plan. 

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You can cancel the SMS service at any time by texting “STOP”. When you send the SMS message “STOP” to us, we reply with an SMS message that confirms that you have been unsubscribed. Please note that a valid mobile phone number is required to enable the multi-factor authentication upon sign-up and log-in to a p!ng account and canceling the SMS service will impact your ability to sign-up or log-in to your p!ng account. P!ng is not responsible for your inability to log-in to your account or any loss arising from your failure to enable transmissions from p!ng for proper account authentication.

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Social Sign-On. P!ng Online Services may support sign-on from third-party platforms to make it easier for you to sign in or create an account. When you sign-in, you will be asked to establish an account by providing your name, email address, mobile phone number, and a password. If you elect to sign-on through a third-party platform, you may use those credentials, which will automatically be linked to your account. Use of third-party platforms to create and access your account is subject to the terms and conditions and privacy policies of such third parties. You may disconnect the account from the third-party platform at any time by updating the settings in that account or by removing the authorization through the settings of that account. If the third-party service becomes temporarily or permanently unavailable for any reason, if you elect to delete your account with that third-party platform used to access p!ng Online Services, or if you unlink your account on the third-party platform and p!ng Online Services account, you may not be able to log into your account though that third-party platform.

X.  Third-Party Sites and Social Media Pages

P!ng Online Services may contain links to other third-party websites, including social media platforms, such as Facebook or Instagram (all links to third-party websites and social medial platforms are collectively referred to herein as "Linked Sites"). Linked Sites are provided only for your convenience. If you decide to visit any Linked Sites, you do so at your own risk. P!ng has no responsibility or liability for any Linked Sites, or the content, policies, or actions thereof. If you choose to purchase any product or service from Linked Sites, your relationship is with that third party. You agree that we are not responsible for the quality of third-party products or services, or fulfilling any of the terms of your agreement with the seller, including, but not limited to, the delivery of products and services and warranty obligations related to products and services. Links do not imply that we sponsor, endorse, are affiliated with or associated with, or are legally authorized to use any trademark, trade name, service mark, design, logo, symbol, or other copyrighted materials displayed on or accessible through such Linked Site.

XI.  Privacy

P!ng's Privacy Policy applies to use of p!ng Online Services and programs, offers, and promotions, and its terms are made a part of these Terms and Conditions of Use by this reference. By accessing and using p!ng Online Services you agree to our handling of your personal information as described in our Privacy Policy.

XII.  Ownership of Intellectual Property

P!ng, its logo, and wordmark, as shown below, are the trademarks or service marks of p!ng.

 

          

 

The absence of a trademark notice or legend indicating the registration or ownership by p!ng anywhere in the text of p!ng Online Services does not constitute a waiver of that entity’s trademark or other intellectual property rights concerning that trademark or service mark used or referenced in p!ng Online Services.

P!ng Online Services, the Materials, and the trademarks, logos, service marks, and all other source identifying indicia displayed on p!ng Online Services (collectively, the "p!ng Intellectual Property") are owned by or licensed to p!ng, with all rights reserved unless otherwise noted. We do not permit third parties to use p!ng Intellectual Property in any manner, including advertising, as an endorsement for any product or service, in association with contests or promotions, or for any other purpose, commercial or otherwise, without our prior express written permission.

Nothing contained on p!ng Online Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use p!ng Intellectual Property without our prior express written permission. You are strictly prohibited from using any p!ng Intellectual Property except as expressly provided in these Terms and Conditions of Use. You are also advised that p!ng will aggressively enforce their intellectual property rights to the fullest extent of the law, including seeking criminal prosecution.

 

By using the Online Services, you agree to notify the Company in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of the Company’s Confidential Information which may come to Recipient’s attention. You agree that any information, materials or documents obtained by you that may constitute confidential information or a trade secret will promptly be returned to the Company, accompanied by all copies of such documentation, or to destroy any such items at the request of the Company.

XIII.  Electronic Communications

When you visit p!ng Online Services or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on p!ng Online Services. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms and Conditions of Use. You understand and agree that p!ng and anyone contacting you on our behalf, may send communications to you in any manner, including using a pre-recorded or artificial voice or an automatic telephone dialing system, including but not limited to communications concerning orders placed through your account on p!ng Online Services.

XIV.  No Warranties

P!ng makes no representations or warranties regarding p!ng Online Services and the Materials.

 

WE DO NOT WARRANT THAT P!NG ONLINE SERVICES OR THE MATERIALS WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED.

WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE USE OF P!NG ONLINE SERVICES OR THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH P!NG ONLINE SERVICES, OR THE RESULTS OBTAINED THEREFROM, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, TIMELINESS, RELIABILITY, OR OTHERWISE.

P!NG ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH P!NG ONLINE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. WE DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD-PARTY SERVICE PROVIDERS, PARTNERS, SPONSORS, LICENSORS, LICENSEES, OR THE LIKE (“PROVIDERS”) IN CONNECTION WITH OR RELATED TO YOUR USE OF P!NG ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH P!NG ONLINE SERVICES.

XV.  Limitations of Liability

Notwithstanding any damages that You might incur, the entire liability of the Company and any of its suppliers under any provision of this Terms and Your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by You through the Service or 10 USD if You haven't purchased anything through the Service.

 

TO THE EXTENT PERMITTED BY LAW, YOU AND WE EACH AGREE TO LIMIT CLAIMS FOR DAMAGES, OR OTHER MONETARY RELIEF AGAINST EACH OTHER TO DIRECT AND ACTUAL DAMAGES REGARDLESS OF THE THEORY OF LIABILITY. NEITHER YOU NOR WE SHALL SEEK ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM THE OTHER. YOU AGREE P!NG IS NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY, BY ANY ACT OF NATURE, OR BY ANY CRIMINAL ACTIVITY BY SOMEONE UNRELATED TO P!NG.

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IN NO EVENT SHALL WE OR ANY OF OUR PROVIDERS BE LIABLE TO ANY PERSON FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES (LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, PROGRAMS, OR DATA) RESULTING FROM YOUR USE OF OR INABILITY TO USE P!NG ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH P!NG ONLINE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT PERMIT THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, IN SUCH JURISDICTIONS, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.

XVI.  Indemnification

You agree to indemnify, defend, and hold harmless p!ng and its officers, directors, employees, and agents from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and expenses that arise directly or indirectly out of or from: (1) your breach of these Terms and Conditions of Use; and/or (2) your activities in connection with p!ng Online Services, and the Materials, programs, offers, features, and services made available through p!ng Online Services.

XVII.  International Users and Choice of Law

P!ng Online Services are controlled, operated, and administered by us and our service providers from offices within the United States of America. We make no representation that Materials on p!ng Online Services are appropriate or available for use at other locations outside of the United States, and access to them from territories where their contents are illegal is prohibited. You may not use p!ng Online Services or export the Materials in violation of U.S. export laws and regulations. You represent and warrant that (1) 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; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties. If you access p!ng Online Services from locations outside of the United States of America, you are responsible for compliance with all local laws. These Terms and Conditions of Use shall be governed by the laws of the State of Delaware, U.S.A., without regard to conflict of laws provisions or principles.

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XVIII. Dispute Resolution, Binding Arbitration, and Class Action Waiver

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PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH P!NG AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION XVIII OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

INDIVIDUALIZED DISPUTE RESOLUTION AND ARBITRATION.  YOU AND WE EACH AGREE THAT ANY AND ALL CONTROVERSIES OR CLAIMS OF ANY NATURE, INCLUDING TORT AND STATUTORY CLAIMS, IN ANY WAY ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OF USE, OUR PRIVACY POLICY, DATA SECURITY, OR DATA PRIVACY, INCLUDING ANY QUESTIONS OF ARBITRABILITY (REFERRED TO COLLECTIVELY AS A “DISPUTE”), SHALL BE SETTLED BY INDIVIDUAL BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) BY A SOLE ARBITRATOR OR IN SMALL CLAIMS COURT.  If you are an individual, then the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for consumer Related Disputes then in effect will apply.  If you are a business or legal entity other than an individual, then the arbitration will be administered by AAA in accordance with the AAA’s Commercial Rules then in effect.  Notwithstanding the foregoing, in any conflict between the AAA’s rules and these Terms and Conditions of Use, the Terms and Conditions of Use will govern.  The AAA rules are available at www.adr.org. You and we each also agree that this Arbitration Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law, not state law, apply and govern any questions regarding the enforceability of this dispute resolution provision, including all questions of arbitrability (despite the general choice of law provision set forth above). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS ARBITRATION AGREEMENT AND CAN AWARD, ON AN INDIVIDUAL BASIS, THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).

For any and all Disputes you have, you must first give us an opportunity to resolve your Dispute by sending a written description of your Dispute to P!ng, Inc., ATTN: Legal Department, 14 Hawks Ridge Rd, North Billerica, MA 01862 (“Notice of Dispute”). The Notice of Dispute must contain enough information for us to attempt to resolve your claim, including (a) your name; (b) the email address and telephone number associated with your p!ng account, if applicable; (c) a written description of the problem, relevant documents, and supporting information; and (d) a good faith calculation of the damages you claim to have suffered and a statement of the specific relief you are seeking. You may be represented by an attorney or other person in that process. However, if you choose to be represented by an attorney or other person, you must also submit with your Notice of Dispute a signed, written authorization allowing us to discuss your Dispute with your attorney or other representative. 

You and we each agree to negotiate any Dispute between us in good faith for a sixty-day period. You and we each further agree that neither of us may commence any arbitration or small claims proceeding unless you and we are unable to resolve the Dispute within 60 days after receipt of the Notice of Dispute and the party who sent the Notice of Dispute has made a good faith effort to resolve the claim during that time.

If we are unable to resolve your claim within 60 days despite those good faith efforts, then either you or we may start arbitration or small claims court proceedings. To begin arbitration, you must send a letter requesting arbitration and describing your claim to the following address: P!ng, Inc., ATTN: Legal Department, 14 Hawks Ridge Rd, North Billerica, MA 01862 and to the AAA. Notwithstanding the foregoing, if the claims asserted in any request or demand for arbitration could have been brought in small claims court, then either you or we may elect to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that election in writing. Any dispute about whether a claim qualifies for small claims court will be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding will remain closed unless and until the small claims court issues a decision that the claim must proceed in arbitration.

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The arbitration of all disputes will be conducted by a single arbitrator, who shall be selected using the following procedure: (a) the AAA will send the parties a list of five candidates; (b) if the parties cannot agree on an arbitrator from that list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. All arbitrators appointed pursuant to this process are subject to the disclosure and disqualification procedures set forth in the applicable AAA rules and any applicable state laws or rules.

If you are an individual, then the arbitration will be held virtually or in the city/county in which you reside.  If you are a business or legal entity other than an individual, then the arbitration will be held in Boston, Massachusetts. 

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Payment of all filing, administration, and arbitrator fees will be governed by the applicable AAA rules. If you initiate an arbitration, you are required to pay AAA’s initial filing fee, but we will reimburse you for this filing fee at the conclusion of the arbitration to the extent it exceeds the fee for filing a complaint in a federal or state court in your county (or parish) of residence, subject to the restriction set forth in the following paragraph. Any facts, evidence, documents, or testimony introduced or produced in an arbitration proceeding may be used only in that proceeding and may not be disclosed, introduced, or used in another arbitration proceeding even if it involves the same or similar claims. We each also agree that the arbitrator will not be bound by rulings in any prior arbitrations not involving the same parties, even if they involved the same or similar claims.

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An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. If the arbitrator finds that either the substance of your claim or the relief sought was frivolous, or that your claim was brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then we will not reimburse your initial filing fee and may seek an award of our legal fees or costs against you and/or your counsel. This Arbitration Agreement authorizes the arbitrator to award fees or other sanctions against your counsel. If you seek injunctive or declaratory relief, you agree that the arbitrator may award injunctive or declaratory relief in favor of you alone, and only to the extent necessary to resolve your individual claim.

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The arbitrator will have the power to rule on their own jurisdiction, including any issues concerning the existence, validity, or scope of either this Arbitration Agreement, including whether any claim is subject to arbitration, provided that: (1) any dispute about whether a claim qualifies for small claims court will be resolved by that court, not by an arbitrator; and (2) a court will have the authority to determine whether the parties have complied with the informal dispute resolution procedures set out above and whether any claim you or we have filed in arbitration or in court is inconsistent with the Class Action Waiver included in these Terms and Conditions of Use.

WAIVER OF CLASS OR CONSOLIDATED ACTIONS (“CLASS ACTION WAIVER”).  YOU AND WE EACH AGREE THAT YOU MAY ONLY BRING CLAIMS IN YOUR INDIVIDUAL CAPACITY ON YOUR OWN BEHALF, AND NOT IN ANY REPRESENTATIVE CAPACITY OR ON BEHALF OF ANY CLASS OR PURPORTED CLASS, AND NO PROCEEDINGS COMMENCED HEREUNDER MAY BE JOINED WITH OR INCLUDE ANY OTHER PARTIES, OR CLAIMS BY OTHER PARTIES (WHETHER REPRESENTATIVE, MASS, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION). To the extent permitted by law, each party agrees that this limitation includes, but is not limited to, precluding each party from pursuing any claim for public injunctive relief, whether in arbitration or court. If we believe that any claim you have filed is inconsistent with this limitation, then you agree that we may seek an order from a court determining whether your claim is within the scope of this class action waiver.

If a court or arbitrator determines in an action between you and us that any part of this Arbitration Agreement cannot be enforced with respect to any claim, remedy, or request for relief, the rest of this Arbitration Agreement will continue to apply; provided, however, that if the Class Action Waiver is declared to be unenforceable or invalid, this entire Arbitration Agreement (other than this sentence) will not apply to that claim, remedy, or request for relief (but will still apply to any and all other claims, remedies, and requests for relief that you or we may assert in that or any other action). In any such case, you and we agree that we will arbitrate all claims, remedies, and requests for relief subject to individual arbitration first, and that any remaining unresolved claims, remedies, or requests for relief may be pursued in court only after the arbitrator’s award has been issued. In any such proceeding, the arbitrator’s factual findings will not be entitled to deference by the court.

 

ACKNOWLEDGMENT OF ARBITRATION. THE USER / CUSTOMER UNDERSTANDS THAT BY USING THIS PRODUCT THEY HAVE AGREED TO TERMS AND CONDITIONS THAT INCLUDE AN AGREEMENT TO ARBITRATE. THE USER / CUSTOMER UNDERSTANDS THAT AFTER AGREEING TO THE TERMS AND CONDITIONS, THEY WILL NOT BE ABLE TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS GOVERNED BY THE ARBITRATION CLAUSE OF THE TERMS AND CONDITIONS, WHICH REQUIRES ARBITRATION, EXCEPTING ONLY ISSUES THAT INVOLVE A QUESTION OF CONSTITUTIONAL OR CIVIL RIGHTS. INSTEAD, THE USER / CUSTOMER AND THE COMPANY HAVE AGREED TO SUBMIT ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THE TERMS AND CONDITIONS OR ANY USE OF THE PRODUCT OR SERVICES TO AN IMPARTIAL ARBITRATOR OR ARBITRATORS IN ACCORDANCE WITH THE AMERICAN ARBITRATION ASSOCIATION ("AAA") RULES.



XIX.  No Agency Relationship

Neither these Terms and Conditions of Use, nor any Materials, programs, offers, features, or services of p!ng Online Services, create any partnership, joint venture, employment, or other agency relationship between p!ng and you. You may not enter into any contract on our behalf or bind us in any way.

XX.  Violations and Remedies

You agree that p!ng may, in its sole discretion and without prior notice, block, suspend, and/or terminate your access to any or all of p!ng Online Services if we determine that you have violated these Terms and Conditions of Use or other agreements or guidelines that may be associated therewith. You also agree that any violation, or threatened violation, by you of these Terms and Conditions of Use constitutes an unlawful and unfair business practice, and will cause irreparable and unquantifiable harm to p!ng. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.

If p!ng takes legal action against you as a result of your violation of these Terms and Conditions of Use, we will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to p!ng. You agree that p!ng will not be liable to you or to any third party for termination of your access to p!ng Online Services as a result of any violation of these Terms and Conditions of Use.

XXI.  Entire Agreement, Claims Limitations, and Severability

These Terms and Conditions of Use, together with our Privacy Policy and any other applicable terms included within p!ng Online Services, and/or the Materials, programs, offers, features, and services made available through p!ng Online Services, as each is currently posted on p!ng Online Services, constitute the entire agreement between us and you with respect to your use of p!ng Online Services and the Materials, and supersede all previous written or oral agreements between us and you with respect to such subject matter. Any cause of action you may have arising out of or relating in any way to p!ng Online Services must be commenced within one (1) year after the claim or cause of action arises. If, for any reason, a court of competent jurisdiction finally determines any provision of these Terms and Conditions of Use, our Privacy Policy, or any portion thereof, to be unenforceable, such provision shall be enforced to the maximum extent permissible so as to give the intended effect thereof, and the remainder of these Terms and Conditions of Use and Privacy Policy shall continue in full force and effect.

XXII.  Contact Information

If you have any questions about p!ng Online Services or these Terms and Conditions of Use, or you would like to report violations of these Terms and Conditions of Use, please contact us at:

sZipps Inc. (DBA p!ng)
14 Hawks Ridge Rd

N. Billerica, MA 01862 
https://www.pingthru.com/contact-us

(855) 617-7464

 

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