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Terms of Service

Terms of Use

Last Updated: July 28, 2022

  1. Scope of Agreement

THIS IS A BINDING AGREEMENT BETWEEN YOU AND PEAK 5. By accessing or using the Services, you are agreeing to these Terms. For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a Peak 5 or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf. Please read these Terms carefully, as they include important information about your legal rights. If you do not agree to these Terms, you may not access or use the Services. IF YOU DO NOT AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU ARE NOT ALLOWED TO USE THE SERVICES.

This Agreement is binding to the fullest extent permitted by applicable law.

 

  1. Parties to Agreement

We thank you for your interest in Peak 5, which owns and operates the services offered on EARLYBIRDHANGOVER.COM and any associated web applications (“THE PEAK 5 APP”) or products and services that Peak 5 may provide now or in the future (collectively, the “Services”).

The Website is not directed to children under 18 years of age, and we do not otherwise knowingly solicit or collect Personal Information from, or market to, children. You must be 18  years of age or older and reside in the United States or any of its territories to use the Services. By using the Services, you represent and warrant that you meet each of these requirements.

If you are under 18 years of age, do not attempt to register for or use any service provided by the Website, and do not provide us any Personal Information about yourself.

If a parent or guardian becomes aware that his or her child has provided us with Personal Information, he or she should contact us as described in the “How to Contact Us” section below. We will take reasonable steps to delete such information from our database in accordance with applicable legal requirements.

This Agreement applies to all users of our Services. You may not sign up for or use the Services as someone you are not; Peak 5 may disable or terminate your account if you do so.

  1. Changes to the Terms of Use

These Terms of Use may be changed, modified, supplemented or updated by Peak 5 from time to time as we strive to continuously improve our services. This also means we may add new features, restrict access to parts, suspend or discontinue any part of the Services, at any time. As a consequence, we reserve the right to modify these Terms of Use at any time and will do our best to inform you of these changes by uploading a notice on the Services at EARLYBIRDHANGOVER.COM and changing the “Last Updated” date on this page. Your continued use of the Services in any form following such notification will constitute your acceptance of the modified Terms of Use.

You are encouraged to review  EARLYBIRDHANGOVER.COM and these Terms of Use periodically for updates and changes.

  1. Privacy

Our Privacy Policy describes how we handle the information we collect from and about your interactions when you use the Services. For an explanation of our privacy practices, please visit our privacy policy.

  1. Subscriptions

The Services offered by Peak 5 are nutraceutical informational and hangover relief product sale services. When You subscribe to the Services, you agree to pay all charges associated with the Services. You may be required to provide a valid credit card to place an order; you will be billed in advance of shipment of any product.

Your right to use the Services or a specific product is conditional upon compliance with these Terms of Use and other agreements between You and Peak 5. If payment is not received or if these Terms of Use are violated, we reserve the right to immediately either suspend or terminate your access and account, thereby terminating all Peak 5 obligations hereunder to the fullest extent permitted by applicable law. You are required to pay any amounts still owed to us at the time your account is suspended or terminated. Peak 5 agrees that it will notify any user when, and if, we decide to terminate such user’s license. You are responsible for all activity occurring using your account or any login credentials for that account.

  1. Registration and Security

As a condition to using our Services, you may be required to register with Peak 5 by providing your name, address, and a valid email address, credit card number, and other personal information.

You may not

(a) download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on the earlybirdhangover.com site, or obtained from or through, the Services;

(b) use, reproduce or remove any copyright, trademark, trade name, slogan, logo, image, service mark or other proprietary notation displayed on or through the Services;

(c) use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;

(d) exploit the Services for any commercial purpose;

(e) use the Services in any manner that could disable, overburden, damage, disrupt or impair the Service or interfere with any other party’s use of the Services or use any device, software or routine that causes the same;

(f) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, or the computer systems or networks connected to the Service;

(g) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;

(h) use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;

(i) introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;

(j) use the Services for illegal, harassing, unethical, or disruptive purposes;

(k) violate any applicable law or regulation in connection with your access or use of the Services; or

(l) use the Services in any way not expressly permitted by these terms.

Peak 5 reserves the right to refuse registration or cancel a Peak 5 account at its sole discretion. You will be responsible for maintaining the confidentiality of your account and password and will be responsible for all activity over, through, or using your account and/or password. You may not transfer your account to anyone without express prior written consent of Peak 5. Violation of any of the foregoing may result in immediate termination of your account, revocation of your ability to use the Services, and may subject you to state and federal penalties and other legal consequences.

Peak 5 reserves the right, but will have no obligation, to investigate your use of the Services in order to determine whether a violation of the Agreement has occurred or to comply with any applicable law, regulation, legal process or governmental request.

  1. Ownership

Ownership of the Services. The Services and their content, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Peak 5 and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests.  We and our licensors reserve all rights in connection with the Services and its content, including, without limitation, the exclusive right to create derivative works.

Ownership of Trademarks. “EarlyBird” and all related names, logos, product and service names, designs and slogans are trademarks of the Peak 5 or its affiliates or licensors.  Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners or licensors, who may or may not be affiliated with, connected to, or sponsored by us.

Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Peak 5, and the Peak 5 may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Peak 5 any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.

SEE SECTION 16 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 7.

  1. Your Restrictions and Responsibilities

You warrant, represent and agree that you will not contribute any content or otherwise use (or encourage any third party to use) the Services in a manner that

  • infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party;
  • violates any law, statute, ordinance or regulation;
  • is harmful, fraudulent, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable as reasonably determined by Peak 5;
  • jeopardizes the security of your account or the Services in any way, such as allowing someone else access to your account or password;
  • attempts, in any manner, to obtain the password, account, or other security information from any other user;
  • violates the security of any computer network, or cracks any passwords or security encryption codes;
  • runs mail list, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or any malware or virus, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
  • “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services (through use of manual or automated means);
  • copies or stores any significant portion of the User Submissions;
  • decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services (or the products of Peak 5 third party service providers).

Peak 5 reserves the right to terminate access of any third party application or service to our published or unpublished APIs.

You will be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, software, and Wi-Fi services. You will be responsible for ensuring that such equipment or ancillary services are compatible with the Services.

  1. Third-Party Websites

The Services may contain links to third party websites and service providers that are not owned or controlled by Peak 5. When you access third party websites, you do so at your own risk.   Peak 5 encourages you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third party website that you visit or utilize.

Peak 5 has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites. In addition, Peak 5 will not and cannot monitor, verify, censor or edit the content of any third party site. By using the Services, you expressly relieve and hold harmless Peak 5 from any and all liability arising from your use of any third party website or service.

Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Peak 5 will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.

If there is a dispute between users on this site, or between users and any third party, you understand and agree that Peak 5 is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release Peak 5, its officers, employees, agents, and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our service. If you are a California resident, you will and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” And if you are not a California resident, you waive any applicable state statutes of a similar effect.

SEE SECTION 16 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 9.

  1. Warranty Disclaimer and Limitation of Liability

DISCLAIMER OF WARRANTIES

PEAK 5 does not guarantee that the PEAK 5 WEBSiteS, PEAK 5 APPS, SERVICES or any services provided therethrough will be uninterrupted or error-free. Content and services are provided on an “as is,” as-available basis. PEAK 5 does not guarantee that any file available for downloading is free of viruses or similar contamination or destructive features.

 

LIMITATION OF LIABILITIES

TO THE FULLEST EXTENT PERMITTED BY LAW:

(A) PEAK 5, ITS SUBSIDIARY AND AFFILIATED ENTITIES, INCLUDING THEIR RESPECTIVE BOARD MEMBERS, DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES, MEMBERS, EMPLOYEES, AND ASSIGNS, SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING UNDER THESE TERMS OR ASSOCIATED WITH YOUR USE OF THE SERVICES OR WITH ANY PEAK 5 CONTENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OF DATA, LACK OR LOSS OF DATA, OR OTHER INTANGIBLE LOSSES, WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE (EVEN IF PEAK 5 OR ITS APPLICABLE THIRD-PARTY PROVIDER HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES); AND

(B) THE MAXIMUM AGGREGATE LIABILITY OF ANY KIND ARISING UNDER OR RELATING TO THESE TERMS, THE PRODUCTS, OR PEAK 5 CONTENT SHALL BE ONE HUNDRED UNITED STATES DOLLARS ($100.00). THE FOREGOING LIMITATIONS SHALL APPLY TO ALL CAUSES OF ACTION, WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT, OR ANY OTHER LEGAL THEORY; MOREOVER, THESE LIMITATIONS WILL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

SEE SECTION 16 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 10.

  1. Indemnity

You will indemnify and hold Peak 5, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party due to or arising out of your access to the Services, use of the Services, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.

SEE SECTION 16 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 12.

  1. Termination

This Agreement will remain in full force and effect while you use the Services. You may terminate your use of the Services or your account at any time by contacting us at . Peak 5 may disable or terminate your access to the Services or your account at any time, for any reason (without cause or for your violation of any term of this Agreement), and without warning or notice, which may result in the forfeiture of all information associated with your membership. Upon termination of your account, your right to use the Services, and any Content will immediately cease; however, Peak 5 may retain notification data or other data and information pursuant to this Agreement and as necessary for auditing purposes and as required by law. All provisions of this Agreement which, by their nature, should survive termination, will survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

  1. Governing Law

These Terms of Use shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any principles of conflicts of law.  Subject to the Arbitration provision set forth in Section 14, you hereby consent and submit to the personal jurisdiction in the state and federal courts located in and for Orange County, Florida.

  1. DISPUTE RESOLUTION; INFORMAL RESOLUTION AND FORMAL RESOLUTION BY ARBITRATION/CLASS ACTION WAIVER

In order to expedite and control the cost of disputes, you and Peak 5 agree that any legal or equitable claim relating to use of EARLYBIRDHANGOVER.COM or the purchase of any Peak 5 product from EARLYBIRDHANGOVER.COM(referred to as a “Claim”) will be resolved as follows:

  1. A. INFORMAL RESOLUTION:

You and Peak 5 will first attempt to resolve any Claim informally.  In the event that any dispute between Peak 5 and you arises out of or relates to these Terms of Use, the applicability of these Terms of Use to the use of any Peak 5 Services, or purchase of any Peak 5 products from earlybirdhangover.com, or to breach or enforcement, interpretation or validity of these Terms of Use, you and we agree to try to promptly resolve any such dispute informally.  Please send a written notice describing the dispute to info@.earlybirdhangover.com.

  1. FORMAL RESOLUTION BY ARBITRATION/CLASS ACTION WAIVER:

READ THE FOLLOWING ARBITRATION PROVISION CAREFULLY, IT LIMITS YOUR RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION.  You agree that any dispute, controversy or Claim arising out of or relating to these Terms of Use, the applicability of these Terms of Use as to the use of any Peak 5 Services, or the purchase of any Peak 5 products from earlybirdhangover.com, or to breach or enforcement, interpretation or validity of these Terms of Use, or the determination of the scope or applicability of Arbitration shall be governed solely by the Federal Arbitration Act.

If you and Peak 5 cannot resolve a Claim informally, any Claim asserted by either party will be resolved only by binding Arbitration.  By agreeing to Arbitration, both you and Peak 5 understand and agree that all disputes shall be decided by an arbitrator and that you are waiving your rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle disputes.  Instead of suing in court, both you and Peak 5 each agree to settle disputes (except certain small claims) only by Arbitration. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. The rules in Arbitration are different.  There is no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations stated in these Terms of Use as a court would.

The Arbitration will be conducted under the JAMS Streamlined Arbitration Rules & Procedures (referred to as the “JAMS Rules”) and under the rules set forth in these Terms of Use.  If there is a conflict between JAMS Rules and the rules set forth in these Terms of Use, the rules set forth in these Terms of Use will govern. You may, in Arbitration, seek any and all remedies otherwise available to you pursuant to the law of the governing state.  If you decide to initiate Arbitration, Peak 5 agrees to pay the Arbitration initiation fee and any additional required deposit required by JAMS to initiate your Arbitration. You and Peak 5 agree to pay the costs of the Arbitration proceeding provided however that if you are a consumer you shall not be required to pay more than $250.00 of the fees or such amount as the JAMS Rules may later prescribe.  All other fees, such as attorneys’ fees and expenses of travel to the Arbitration, will be paid in accordance with JAMS Rules.  The Arbitration will be held at a location in your home town area if possible, unless you and Peak 5 both agree to another location or telephonic Arbitration.  To initiate Arbitration, you or Peak 5 must do the following things:

(1)        Write a demand for Arbitration.  The demand must include a description of the Claim and the amount of damages sought to be recovered.  You can find a copy of a Demand for Arbitration at www.jamsadr.com.

(2)        Send three copies of the Demand for Arbitration, plus the appropriate filing fee to:  JAMS, 620 Eighth Ave., 34th Floor, New York, NY 10018.

(3)        Send one copy of the Demand for Arbitration to the other party.

Special Rules in the Arbitration Proceeding. (i) The arbitrator has no authority to make errors of law and any award may be challenged if the arbitrator does so.  Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any Federal or State court that has jurisdiction. (ii) Neither you nor Peak 5 shall be entitled to join or consolidate claims in Arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity.  THIS MEANS THAT YOU WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN ANY CLASS OR CONSOLIDATED ACTION WHATSOEVER.  Accordingly, you and Peak 5 agree that the JAMS Class Action Procedures do not apply to our Arbitration.  A court may sever any portion of this dispute resolution provision if it finds such unenforceable.  Notwithstanding the obligation to arbitrate all Claims under these Terms of Use, you may assert an individual Claim in small claims court in lieu of Arbitration.

  1. LIMITED TIME TO FILE CLAIMS

You agree that you will assert any Claim arising out of your use of any Peak 5 Services or the purchase of any Peak 5 product from EARLYBIRDHANGOVER.COM within one (1) year after the Claim arises, or such Claim will be barred.

SEE SECTION 16 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 15.

  1. EXCLUSIONS AND LIMITATIONS; CONSUMER PROTECTION NOTICE

If you are a consumer, the limitations in these Terms of Use are intended to be only as broad and inclusive as is permitted by the laws of your State of residence.

If you are a New Jersey resident or otherwise have rights under New Jersey’s consumer protection laws, the terms of Sections 7, 9, 10, 11, and 15 do not limit or waive your rights under New Jersey law and the limitations in these Terms of Use are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey. In any event, Peak 5 reserves all rights, defenses and permissible limitations under the laws of New Jersey and under the laws of your State of residence.

If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

Notwithstanding the foregoing, nothing in this Section shall modify Subsection 15(B) (“Formal Resolution by Arbitration/Class Action Waiver”).

  1. Miscellaneous

The failure of either party to exercise, in any respect, any right provided for herein will not be deemed a waiver of any further rights hereunder. Peak 5 will not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Peak 5’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Peak 5’s prior written consent. Peak 5 may transfer, assign or delegate this Agreement and its rights and obligations without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. This Agreement and any subsequent versions of this Agreement uploaded to the Services will be deemed a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Peak 5 in any way whatsoever. If there is any conflict between these Terms of Use and the terms of any written contract between You and Peak 5, the contract shall control.

  1. Contact Us

You may contact us regarding the Services or these Terms at:

info@earlybirdhangover.com

PEAK 5 LLC

555 Winderley Place, Suite 300, Maitland, FL 32751