Peacock Rewards TERMS OF USE

These Terms of Use (“Terms”) govern the access and use of the Peacock Club rewards program, including any mobile application, website, or related services (collectively, the “App”), used or offered by The Elia Group, LLC, its affiliates, and the venues managed by The Elia Group, LLC or Elia Hospitality Co, LLC or their respective affiliates (“Company,” “we,” “us,” or “our”). By downloading, accessing, or using the App, you as the user (“you”) agree to be bound by these Terms.  Please read these Terms carefully before using the App.  These Terms are a legally binding agreement between you and Company.  If you do not agree, do not use the App.

 

BY ACCESSING OR USING THE APP, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THESE TERMS, INCLUDING THEIR DISCLAIMERS AND LIMITATIONS OF LIABILITY.  YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.  IF YOU DO NOT AGREE TO ANY OF THESE TERMS, YOU MAY NOT USE THE APP.

 

If you download the App through the Apple App Store or Google Play, you acknowledge and agree that:

• These Terms are between you and Company only, not Apple Inc. or Google LLC.

• Apple and Google are not responsible for the App or its content.

• Apple and Google have no obligation to provide maintenance or support services.

• In the event of any failure of the App to conform to any applicable warranty, you may notify Apple or Google, and they may refund the purchase price (if any), but to the maximum extent permitted by law, they will have no other warranty obligation whatsoever.

• Apple and Google are third-party beneficiaries of these Terms and may enforce them.

 

1.             Use of this App.

a.          License.  On the condition that you comply with all of your obligations under these Terms, Company grants you a limited, revocable, nonexclusive, non-assignable, non-sublicensable license and right to access the App.  Any other use of the App is strictly prohibited and a violation of these Terms.  Company and its licensors reserve all rights not expressly granted in these Terms, including, without limitation, rights of title, ownership, intellectual property and all other rights and interests in the App and all related items.

 

b.          Revision of these Terms.  Company may revise these Terms at any time with or without additional notice to you.  Such revised Terms will be effective when posted to the App.  You should revisit these Terms on a regular basis, as revised versions will be binding upon you.  You understand and agree that your continued access to or use of the App after the effective date of changes to these Terms indicates your acceptance of such revisions.

 

c.          Cessation of Service.  Company reserves the right to modify, terminate and suspend the operation of the App, as well as the provision of any or all products or services via this App, without notice or liability, at any time and for any or no reason in its sole and absolute discretion.

 

d.          Risks Inherent in Electronic Mail or SMS Messaging.  You understand that communications distributed by the App may be distributed by electronic mail or SMS messaging, which is by its nature insecure and unreliable.  Electronic mail or SMS messaging is subject to interception, misdirection and loss.  In addition, an electronic mail message may be forwarded by its intended recipient to other unintended recipients.  Any recipient of an electronic message sent by the App may access the hyper-links to files contained on the App, as the App does not authenticate or validate the identity or authority of any person following a hyper-link contained in any such message.

 

e.          Privacy.  We respect your privacy and limit the sharing of data about you with third parties.  Please consult the Company’s Privacy Policy. By agreeing to these Terms, you acknowledge and consent to the use, sharing and disclosure of your personal information and data as described in Company’s Privacy Policy, as it may be amended from time to time.

 

f.           Third Party Services.  The App includes links to third-party products, services and websites, as well as materials provided by third parties (collectively, “Third-Party Content”).  Neither these Terms nor the App endorse or take responsibility for any Third-Party Content.  You agree that the Company Parties are not responsible for the availability or contents of Third-Party Content.  You understand that the Company Parties have no obligation to, and generally do not, approve or monitor materials provided by third parties through the App.  Your use of Third-Party Content is at your own risk.

 

2.             Your Account.

a.          Account Creation. In order to access or use the App, you are required to create an account on the App (your “Account”) and provide your contact information.  Company reserves the right to refuse or reject any request to create an account for you for any or no reason at Company’s sole discretion.

 

b.          Responsibility.  You are solely responsible for your Account, your contact information and other information made available through your Account or otherwise via the App (your “Information”).  You assume all risks associated with your Information, including reliance on its quality, accuracy or reliability by any other person or entity.

 

c.          Termination.

·   You may terminate your Account at any time by emailing Company at peacock@eliagroup.com or otherwise taking any steps provided in the App.

·   If Company has reason to suspect that you have breached these Terms, or that any of your Information is not authorized, correct, current and complete, Company may, in addition to taking or reserving any other remedies against you, terminate your Account.  Company reserves the right to erase any or all of your Information from the App, as well as to terminate your Account without notice or liability, at any time and for any or no reason in its sole and absolute discretion.  Any suspension, termination or cancellation of your Account shall not affect provisions of these Terms, such as indemnification and limitations of liability, that are by their nature intended to survive such suspension, termination or cancellation.

 

d.          Prohibited Uses.  You agree that you will:

·   not violate these Terms or any of Company’s or its licensors’ rights or use the App to violate the rights of any third party such as copyright or trademark rights;

·   use your true legal name, true electronic mail address, true phone number, and only provide accurate and complete information on the App;

·   provide at your cost all equipment, software, mobile access and Internet access necessary for you to use the App.

·   copy information from the App only as necessary for your personal, non-commercial use to view, save, print, fax or e-mail such information;

·   not otherwise reproduce, modify, distribute, display or provide access to the App or its content;

·   not create derivative works from, decompile, disassemble or reverse engineer any portion of the App;

·   not upload to or distribute through the App any binary code, macros or other executable code, or any file that contains any viruses, Trojan horses or other components designed to commandeer, limit or harm the functionality of a computer;

·   not record, process or mine information about other users, or access, retrieve or index any portion of the App;

·   not remove or modify any copyright or other intellectual property notices that appear on the App;

·   access or use the App in any manner that could damage, disable, overburden, place an unreasonable load on, interfere or attempt to interfere with the proper working of, or impair, the App, its computer systems, network or the account of any other user;

·   attempt to gain unauthorized access to any parts of the App or any user accounts, or any of the App’s computer systems or networks;

·   use the App in any way that is unlawful, harms Company’s business, Company’s service providers, licensors, representatives or any other user, or breaches any policy or notice on the App;

·   not impersonate another person or misrepresent your affiliation with another person or entity, such as by using another person’s user name, password or other account information or another person’s name, likeness, image or photograph;

·   not charge any person for access to any portion of the App or any information on the App;

·   not access the App through automated queries (such as by screen or database scraping, spiders, robots, crawlers or any other automated activity with the purpose of obtaining information from the App) without Company’s prior express written permission;

·   not engage in “framing” or “mirroring,” or otherwise simulate the appearance or functionality of the App; and

·   not assist, encourage or enable others to do any of the preceding prohibited activities.

 

e.          Company’s Right to Use Your Information.  As between you and Company, your contact information, data and other information made available through your Account or that you otherwise make available from time to time on the App (collectively, “Your Information”) is owned by you.  You hereby irrevocably grant Company a limited, worldwide, revocable, non-exclusive, royalty-free, license to use Your Information in connection with the App and the services provided to you by the App.

 

3.             About Peacock Club and the Rewards Program.

a.          General Hospitality Services.

The App is a tiered loyalty and rewards program that provides:

·   Restaurant and hospitality-related services

·   Marketing and promotional content

·   Loyalty and rewards through Peacock Club

 

The App may further allow you to:

·   Make reservations

·   Join waitlists

·   Purchase food, beverages, or event access

·   Participate in promotions or experiences

 

All such services are subject to availability, venue-specific rules, and operational changes.

 

Peacock Club is part of the App and not a standalone product. Points, perks, and benefits:

·   Have no cash value and are non-transferable

·   May be modified, suspended, or discontinued at any time

·   Are subject to availability and specific terms at each participating venue

 

Rewards, points, tiers, and benefits:

·   Do not constitute property, currency, or stored value

·   May be revoked, modified, or terminated at any time without compensation

·   Do not create any vested rights

 

b.          Earning Rewards.  Users may earn rewards through:

·   Purchases

·   Promotions

·   Engagement activities

 

c.          Redemption. Rewards may be redeemed only as specified and are subject to availability and restrictions.

 

d.          Expiration & Changes. We may at our sole discretion:

·   Modify reward structures, including earning rates, tier thresholds, and rewards

·   Expire rewards

·   Terminate promotions at any time

 

e.          Rewards Limitations. All promotions and Peacock Club rewards: (i) are subject to change or cancellation at any time; (ii) may include eligibility restrictions; (iii) cannot be combined unless explicitly stated.  Moreover, we reserve the right to void rewards obtained through fraud or misuse or otherwise limit redemption quantities

 

4.             Location-Based Features.  Certain features of the App (including rewards and promotions) rely on location data. Disabling location may limit functionality.  By enabling location services, you consent to the collection, use, and sharing of your precise and approximate location data to provide location-based services, promotions, and analytics as described in our Privacy Policy.

 

5.             Email Communications and SMS Messaging Terms and Consent.  By using the App and providing your phone number and email, you expressly consent to receive email communications, SMS messages, and push notifications.  You may opt out via device settings or unsubscribe mechanisms.  These messages include marketing messages, promotional offers (including Peacock Club rewards), and transactional messages (e.g., reservations, account updates, etc.) from the Company.  With respect to SMS messages:

 

a.          Message Frequency.  Message frequency may vary.

b.          Message & Data Rates.  Message and data rates may apply depending on Your mobile carrier.

c.          Opt-Out Instructions. You may opt out at any time by replying STOP to any SMS message or following any other unsubscribe instructions.  After opting out, you may receive a confirmation message.

d.          Carriers Disclaimer.  We are not responsible for any delayed or undelivered messages caused by mobile carriers.

e.          Data Use. Information collected through SMS interactions is subject to our Privacy Policy.

f.           Consent. You acknowledge that your consent to receive SMS messages:

·   Is not a condition of purchase

·   May be revoked at any time

·   Constitutes express written consent under the Telephone Consumer Protection Act (TCPA)

g.          Help. For assistance, reply HELP to any message.

 

6.             Payments & Transactions. The App may allow you to view or participate in offers, reservations, or purchases through participating venues.  All purchases are further subject to the policies of the specific venue. If purchases are enabled: (i) payments are processed through third-party providers, and (ii) we are not responsible for payment processing errors.  You agree that Company is not responsible for: (x) pricing errors or availability issue, (y) third-party services or payment processors, and (z) disputes arising from in-venue transactions.  Company is not the merchant of record for in-venue transactions unless expressly stated. With respect to such matters, you further agree as follows:

 

a.          Authorization. By providing a payment method, you authorize us (and our third-party processors) to:

·   Charge applicable fees

·   Process deposits, reservations, and purchases

 

b.          No Improper Chargebacks.

You agree that you will not initiate a chargeback or payment dispute unless you have first made a good-faith effort to resolve the issue with us. You agree that initiating a chargeback without first complying with this Section constitutes a material breach of these Terms and may result in:

·   Suspension or termination of your account

·   Loss of rewards or credits

·   Additional recovery actions

 

If you initiate a chargeback improperly, we reserve the right to:

·   Recover the disputed amount

·   Charge reasonable administrative and processing fees

·   Use collection efforts where permitted by law

 

c.          Disputed Transactions. You must notify us of any billing dispute within a reasonable time (not to exceed 30 days from the date of the applicable transaction).

 

7.             Alcohol Service Disclaimer. You acknowledge that alcohol service is governed by applicable state and local laws and that you must be 21 years of age or older to purchase or consume alcohol.  We reserve the right to: (a) refuse service to anyone at our discretion, (b) require valid government-issued identification, and (c) remove any guest for intoxication, disorderly conduct, or safety concerns. You agree that: (i) you are solely responsible for your conduct, and (ii) Company is not liable for actions resulting from alcohol consumption.  You assume all risks associated with alcohol consumption, including injury, impaired judgment, and third-party harm.

 

8.             Conduct and Right to Refuse Service.  We reserve the right to: (a) refuse service to anyone, (b) remove guests from premises; or (c) suspend or terminate App access.  Any of the foregoing may be undertaken by us in our sole discretion, including, by way of example only, for: (i) violations of law; (ii) harassment or disruptive behavior; or (iii) misuse of rewards or promotions.

 

9.             Health, Safety, and Assumption of Risk.

a.          Food Safety Risks. By visiting our venues or participating in events, you acknowledge there are risks related to food consumption, including allergies.  You agree: (i) to inform staff of any allergies or dietary restrictions, and (ii) that Company is not responsible for adverse reactions where reasonable care has been taken.

 

b.          Venue Safety and Assumption of Risk. By visiting our venues or participating in events, you acknowledge there are inherent risks related associated with public spaces, dining, and events, and you agree, to the fullest extent permitted by law, that you assume the risks associated with dining, event attendance, and participation in promotions, INCLUDING CLAIMS BASED ON NEGLIGENCE (OTHER THAN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT). To the fullest extent permitted by law, you waive any claims against Company and agree that Company shall not be liable for:

·   assaults, batteries, or altercations between patrons

·   criminal or negligent acts of third parties

·   guest-to-guest interactions

·   injuries arising from crowding, pushing, or congested dance floors or bar areas.

 

c.          Security Personnel & Independent Contractors. Security services may be provided by third-party contractors or independent personnel.  Such individuals are not employees or agents of the Company for liability purposes to the maximum extent permitted by law.

 

d.          Right to Refuse Service / Remove Guests.  Company reserves the absolute right to deny entry, remove any guest, refuse service, for any reason including, by way of example only, intoxication, safety concerns, or policy violations.

 

10.         Reservations, Deposits & Revenue Protection.

a.          Reservations and No-Show Policy. Reservations made through the App or Peacock Club: (i) are not guaranteed and may be subject to confirmation; (ii) may require a deposit or card on file; and (iii) may be subject to cancellation or no-show fees.  By making a reservation, you agree: (x) to arrive on time, (y) that late arrivals may result in cancellation or modification, and (z) that applicable fees may be charged or result in the forfeiture of your deposit.  In connection with the foregoing, you expressly authorize us to charge any applicable fees to your payment method or retain any deposits consistent with this policy.

 

b.          Private Events and Group Bookings. For events booked through the App or affiliated services:

·   Additional contracts, deposits, and cancellation terms may apply

·   Event details (capacity, timing, services) are subject to change

·   The Company is not liable for third-party vendors

 

c.          Card-on-File Authorization. By making a reservation or booking, you authorize the Company to:

·   Store your payment method securely

·   Charge applicable fees including:

o   Deposits

o   No-show fees

o   Cancellation fees

o   Minimum spend deficiencies

 

d.          Minimum Spend & Table Commitments. For certain reservations (especially nightlife/VIP tables):

·   Minimum spend requirements apply

·   If not met, Company shall be entitled to charge the difference

 

e.          Automatic Gratuity & Service Charges. You acknowledge and agree:

·   Automatic gratuity or service charges may be applied

·   These charges are not optional where disclosed

·   Additional discretionary tipping may still apply

 

f.           Cancellation & No-Show Policy.

·   Deposits may be non-refundable

·   Late cancellations or no-shows may result in:

o   Full deposit forfeiture

o   Additional fees charged to card on file

 

g.          Deposits and Fees. You expressly agree that all deposits, fees, and minimum spend obligations are:

·   Liquidated damages

·   Reasonable estimates of anticipated loss

·   Not penalties

 

11.         Rewards Fraud, Abuse & Enforcement.

a.          Monitoring & Fraud Detection. Company reserves the right to use automated systems, algorithmic monitoring, or behavioral analytics to detect fraud, abuse, or manipulation of rewards

 

b.          Prohibited Conduct. You may not create multiple accounts, exploit promotional loopholes, or manipulate transactions or referrals.

 

c.          Clawback Rights. If fraud or abuse is suspected, Company may, at its sole discretion revoke rewards, deduct points, reverse redemptions, or take such other actions to address the fraud or abuse.

 

d.          Account Suspension / Termination. Company may suspend or terminate accounts for fraudulent activity, abuse of the App, or violation of these Terms.

 

e.          Recovery of Damages. If you engage in fraud or misuse of the App, you agree to reimburse Company for financial losses, administrative costs, and legal fees.

 

f.           Third Parties. Company may share fraud-related data with payment processors, law enforcement, and other affiliates.

 

12.         Representations and Warranties.  You represent and warrant that:

a.          you are 18 years or older and you have all requisite rights and authority to use the App and to enter into these Terms;

b.          the performance of your obligations under these Terms will not violate, conflict with, or result in a default under any other agreement, including confidentiality agreements between you and third parties;

c.          you will use the App and services provided by the App for lawful purposes only and subject to these Terms;

d.          you are responsible for all use of the App and services provided by the App by persons accessing the App and such services through your account;

e.          you agree that Company will not be liable for any losses incurred as a result of a third party’s use of the App and services provided by the App associated with your account, regardless of whether such use is with or without your knowledge and consent;

f.           you will not use the App and services provided by the App in any manner that could damage, disable, overburden or impair the App, or interfere with use of the App or services by others;

g.          any information submitted to the App or Company by you is true, accurate, and correct;

h.          you understand that, except as expressly stated in these Terms, these Terms do not grant you any license to use, reproduce, distribute, display or provide access to any portion of the App on third-party websites, or otherwise;

i.            you will not attempt to gain unauthorized access to the App or services provided by the App, other accounts, computer systems, or networks under the control or responsibility of Company through hacking, cracking, password mining, or any other unauthorized means;

j.            you agree to immediately notify Company of any unauthorized use of your account of which you become aware;

k.          you are solely responsible for maintaining the confidentiality of your account names and password(s);

l.            you are not a competitor of Company or its licensors and are not using the App or services provided by the App for reasons that are in competition with Company or its licensors;

m.        if you use the App in your capacity as an employee, owner or otherwise as an agent of another person or entity, you agree on behalf of yourself and such person or entity, jointly and severally, to be bound by these Terms;

n.          you will not impersonate another person or misrepresent your affiliation with another person or entity, including using another person’s username, password or other account information or another person’s name, likeness, image or photograph;

o.          you have not relied on any representations not expressly set forth in these Terms; and

p.          your consent to be bound to any consents, notices, disclosures or other records or documents to be entered into between you and Company (“Electronic Contracts”), whether by typing your name, checking a box, pressing a button, clicking through a link, or demonstrating other intent to be bound to such Electronic Contract, shall create a legal, valid and binding contract enforceable against you in accordance with its terms.

 

13.         Intellectual Property.

a.          Content of the App.  Company or its licensors own all of the content that is made available in connection with the App (the “App Content”), including logos, branding, text, visual interfaces, interactive features, graphics, designs, databases and their data, computer code, products, software and all other elements and components of the App.  Company or its licensors also own the copyrights, trademarks, service marks, trade names and other intellectual and proprietary rights throughout the world associated with the App and the App Content, which are protected by copyright, trade dress, patent, trademark and other applicable intellectual property rights and laws.

 

b.          Restrictions.  You may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display, perform or in any way exploit any of the App Content in whole or in part, except as expressly authorized by the applicable rights holder.  Except as expressly and unambiguously provided by these Terms, neither Company nor any of its licensors grant you any express or implied rights, and all rights in and to the App and the App Content are retained by their holders.

 

14.         Indemnification.  You agree to indemnify, defend and hold Company, as well as Company’s parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, including the shareholders, officers, directors, employees, agents and representatives of each of them (collectively, the “Company Parties”) harmless from any and all claims, liability, damages and costs (including, but not limited to, attorneys’ fees) arising out of or relating to:

a.          your access to or use of the App;

b.          your violation of these Terms, including without limitation your breach of any representation or warranty;

c.          infringement, or the infringement of any third party using your Account, of any intellectual property or other right of any person or entity; or

d.          the nature and content of all materials, Electronic Contracts, works, data, statements and other visual, graphical, written or audible communications of any nature submitted by you or otherwise processed through your Account.

e.          Company reserves the right to, but is not obligated to, assume the exclusive defense and control of any matter for which you are required to indemnify the Company Parties, and you agree to cooperate with Company’s defense of such claims.  You agree not to settle any such matter without Company’s prior written consent.  Company will use reasonable efforts to notify you of any such claim, action or proceeding when Company becomes aware of it.  Each of the Company Parties is an express third-party beneficiary of this indemnification provision, with full rights to enforce its terms.

 

This obligation applies regardless of whether such claim arises in whole or in part from Company’s alleged negligence (except gross negligence or willful misconduct).

 

15.         Limitations of Liability. You acknowledge that the limitations of liability set forth herein are a fundamental basis of the bargain between you and Company.

a.          DISCLAIMER OF WARRANTIES.  THE APP IS PROVIDED “AS IS,” AND COMPANY: (i) MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (ii) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (iii) DOES NOT WARRANT THAT THE APP IS OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE.  YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THE USE OF THE APP.  YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF COMPANY TO ANY THIRD PARTY.  USE OF THE APP IS AT YOUR SOLE RISK.  COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE APP.  Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to you.  In such event, such warranties are limited to the minimum warranty period allowed by the applicable law. Without limiting the generality of the foregoing, Company does not make any warranty of any kind with respect to freedom from patent, trademark, or copyright infringement, or theft of trade secrets and Company does not assume any liability hereunder for any infringement of any patent, trademark, or copyright arising from the use of the App or rights granted or provided by Company hereunder.

 

b.          No Consequential Damages.  Company shall not be liable for any indirect, special, incidental, exemplary, punitive or consequential loss or damage of any kind, including without limitation, lost business or profits, whether arising in tort (including negligence), equity, breach of contract or otherwise (and whether or not such damages are foreseeable or Company has been advised of the possibility of such loss or damage).  In no event will any of the officers, trustees, directors, partners, employees, consultants, beneficiaries, joint venturers, members, stockholders or other principals or representatives of Company, ever be personally liable to you under, arising out of, or related to these Terms (including for direct or consequential damages), and you hereby waive the right to recover damages from any such persons.

 

c.          LIMITATION OF LIABILITY.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, THE COMPANY PARTIES’ MAXIMUM AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND THE APP SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).  THE ABOVE LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY.  If applicable law limits the application of the above limitation of liability, Company’s liability will be limited to the maximum extent permitted by law.

 

16.         Dispute Resolution; Binding Arbitration; Class Action Waiver.  To the fullest extent permitted by law, you agree that any dispute, claim, or controversy arising out of or relating to (i) these Terms; (ii) the App or Peacock Club; (iii) any restaurant services, reservations, events, or transactions, shall be resolved exclusively through binding arbitration, rather than in court. To the extent any claim is not subject to arbitration, you waive the right to a jury trial.

 

a.          Mandatory Pre-Dispute Notice & Cure Period. The parties agree to engage in good faith negotiations for at least 30 days to resolve the dispute before initiating arbitration. Before initiating arbitration or any legal proceeding, you agree to provide written notice of the dispute to the Company at legal@eliagroup.com or Elia Group, 124 S. Old Woodward Avenue, Birmingham, MI 48009, Attention: General Counsel.  The notice must include: (i) your name and contact information, (ii)  detailed description of the dispute, and (iii) the relief sought.

 

b.          Agreement to Binding Arbitration (AAA Consumer Rules). Any dispute, claim, or controversy arising out of or relating to these Terms or your use of the App or venues shall be resolved exclusively through final and binding arbitration, administered by the American Arbitration Association (AAA) under its Consumer Arbitration Rules then in effect, by a single arbitrator.  All proceedings shall be conducted in English.  Rules are available at: www.adr.org.

 

c.          Venue of Arbitration. All disputes shall be arbitrated in Oakland County, Michigan.

 

d.          Class Action Waiver. You agree that all disputes shall be brought individually.  Accordingly, you waive any right to participate in: (i) class actions, (ii) collective actions, and (iii) representative proceedings.

 

e.          Fee Allocation & Cost Shifting. Each party shall bear its own attorneys’ fees unless otherwise required by law or AAA rules.  Filing and administrative fees shall be governed by AAA Consumer Rules. If a claim is found to be frivolous or abusive, the arbitrator may award: (i) attorneys’ fees, (ii) costs, and/or (iii) administrative expenses.

 

f.           Exceptions. This arbitration clause does not apply to: (i) small claims court matters; or (ii) claims for injunctive relief related to intellectual property.

 

17.         Force Majeure. We shall not be liable for any delay, failure, or disruption in performance due to events beyond our reasonable control, including but not limited to: (a) acts of God; (b) weather events; (c) fire, flood, or natural disasters; (d) government orders or restrictions; (e) public health emergencies; (f) labor disputes; (g) supply chain disruptions; or (h) utility or technology failures.  In the event of a force majeure, reservations, events, or services may be modified, rescheduled, or cancelled. Where applicable, remedies may include rescheduling, issuance of credit, or refunds in our discretion or as required by law

 

18.         Export Laws.  You acknowledge that technology utilized by the App and any related products, information, documentation, software, technology, technical data, and any derivatives thereof, that Company makes available through the App (collectively “Excluded Data”), may be subject to export control laws and regulations of the United States and other jurisdictions (collectively “Export Laws”).  You represent and warrant that: (i) you are not located in, under the control of, or a national or resident of an embargoed country or prohibited end user under Export Laws; and (ii) you will not access, download, use, export or re-export, directly or indirectly, the Excluded Data to any location, entity, government or person prohibited by export laws, without first complying with all Export Laws that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction it operates or does business.  You are solely responsible for complying with Export Laws for all Excluded Data and any of its content transmitted through the App and Services.  You shall advise Company at legal@eliagroup.com in the event the Excluded Data requires Company to obtain additional licenses, permits and/or approvals from any government in the jurisdiction where you intend to use the App or Services.  Upon being advised of such a requirement, Company may at its sole discretion: (a) terminate your Account; (b) obtain such licenses, permits, and/or approvals as may be required; or (c) modify these Terms such that additional licenses, permits, and/or approvals are no longer required to be obtained by Company.

 

19.         Miscellaneous.

a.          Governing Law.  These Terms shall be governed by the laws of the State of Michigan, regardless of conflict of laws principles.

b.          No Assignment.  These Terms, and any rights or obligations under these Terms, are not assignable, transferable or sublicensable by you except with Company’s prior written consent, but may be assigned or transferred by Company without restriction.  Any attempted assignment by you shall violate these Terms and be void.

c.          Beneficiaries.  Nothing in these Terms is intended to, nor will be deemed to, confer rights or remedies upon any third party except for affiliates of Company.

d.          Amendments; Waivers.  Company may modify these Terms as provided above.  These Terms may not be modified, amended, terminated or waived, in whole or in part, by you except by a written instrument signed by Company.  Except as expressly set forth herein, any failure of a party to take action in response to any breach of these Terms by the other party shall not constitute a waiver of such breach or of performance required by the other party; and no waiver of any provision of these Terms shall constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a continuing waiver unless expressly provided therein.

e.          Notices.  To send notices to Company, or if you have any questions regarding these Terms, please contact Company at peacock@eliagroup.com.  Company may provide you with notices, including notices of changes to these Terms, by electronic mail, regular mail or communications through the App.

f.           Entire Agreement.  These Terms contain the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous representations, promises, agreements and understandings, whether oral or written, between the parties concerning the subject matter hereof. You may from time to time enter into binding legal agreements relating to certain services available through the App, which may have terms that are different from those of these Terms.  In the event of any inconsistency, the terms of such other agreement shall control with respect to such services.

g.          Severability.  If any provision of these Terms is deemed to be invalid or unenforceable, the remaining provisions of these Terms shall be valid and binding and of like effect as though such provision were not included.