By using our Services and PFCB Applications, you accept and agree to all terms, conditions, and notices contained in or referenced on the PFCB Applications and these Terms. Please read these Terms carefully. These Terms are a legally binding agreement between you and PFCB and govern your use of the Services and the PFCB Applications (however accessed or used, whether via personal computers, mobile devices, or otherwise), and any other means or applications in which you connect with us or use the Services.
Updates to Terms of Service. PFCB may update or change these Terms at any time by posting or providing the most current version of the Terms on the PFCB Applications. All such changes will be effective as of the new Effective Date shown. Your continued use of the PFCB Applications and Services after we post any changes to the Terms signifies your agreement to any such changes. Note that special terms or rules may apply to some Services, such as rules for particular promotions, applications, or other features or activities. Any such terms are in addition to these Terms. In the event of any conflict or inconsistency between these Terms and any rules, restrictions, limitations, terms, or conditions that may be posted on the PFCB Applications or otherwise communicated to you, we will determine, in our sole discretion, the order in which those items will control.
Contact and Electronic Communications. By accessing the PFCB Applications you consent to receive these Terms in electronic form and agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing. You agree that when you provide us with contact information in connection with a particular activity, including an email address or telephone number (“Contact Information”), your action constitutes a purchase or inquiry establishing a business relationship with us. You expressly consent to our communicating with you using the Contact Information you provide to us. This means we may contact you by email, telephone (including by recorded message and with the use of automated dialing equipment), text (SMS) message, or any other means of communication that your wireless or other telecommunications device may be capable of receiving. You attest that you have the legal authority over any telephone number you provide to us and can provide us with the authorization to contact you.
2. Intellectual Property Rights.
A. Proprietary Rights.
PFCB owns trademarks for its Services, including without limitation, P.F. Chang's, P.F. Chang's China Bistro, Pei Wei, Warrior and Vineyard 518. These and all other PFCB logos and service marks (collectively, “Marks”) are trademarks of PFCB and may not be used without our prior written consent. All materials and content published on or accessible through PFCB Applications, including, but not limited to text, photographs, video, graphics, music, images, animations, audio, software, plug-ins, data, sounds, messages, comments, and the compilation of all content included on our PFCB Applications (collectively “PFCB Content”) are also owned or licensed by PFCB and are protected by laws governing copyrights, patents, trademarks, trade secrets, and other proprietary rights. We have granted you a license to view and use the PFCB Content subject to these Terms. Unless otherwise specified, the PFCB Content is available to you for your personal and non-commercial use only. You may not sell, modify, reproduce, display publicly or otherwise use the PFCB Content in any way for any public or commercial purpose. Any reprinting or electronic reproduction of any PFCB Content in whole or in part, for any public or commercial purpose, is expressly prohibited.
If you have a website and wish to establish temporary or permanent links from your website to a PFCB Application, you must link to our homepage only. You may not link to another location within any PFCB Application without our written permission.
C. User Content.
There may be opportunities to post content (“User Content”) on PFCB Applications. By posting User Content on PFCB Applications, you certify that: (i) any information contained in the User Content is not confidential; (ii) you are the sole owner and copyright holder of the User Content (which includes all photos, videos, stories, and any other information) or you have obtained whatever rights from the copyright owners are necessary for your posting of the User Content; (iii) the User Content does not infringe any privacy or intellectual property rights of any individual or entity, including the photographer who took the photos or videos you have submitted, or identifiable persons depicted in those photos or videos; and (iv) the User Content does not contain any material that otherwise violates any law or the rights of any third party.
By submitting or posting any User Content on or to PFCB Applications, you grant PFCB and its employees, agents, personnel, assigns, licensees, successors in interest, and legal representatives, an irrevocable, perpetual and unrestricted license to use, modify, reproduce, transmit, display, and distribute the User Content, in whole or in part, or in conjunction with other materials, for any purpose whatsoever, including advertising and trade purposes to the extent permitted by law. You waive all moral rights with respect to the User Content and you acknowledge that PFCB is relying upon, and would not use the User Content you submit in the absence of, these terms.
We may, in our sole discretion, remove User Content that we determine is unlawful, fraudulent, harassing, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable, or infringes or violates any party's intellectual property or other proprietary rights, or reflects unfavorably on PFCB, but have no obligation to do so. PFCB is not liable or responsible for any User Content provided by any third parties on or to any PFCB Application. Contributions to our PFCB Applications by third parties do not necessarily represent the view or opinions of PFCB. PFCB may or may not preview User Content before it appears on our PFCB Applications. Users can be held liable for any illegal or prohibited User Content they provide to PFCB Applications, including among other things, infringing, defamatory, or offensive materials. If you discover this kind of material on PFCB Applications, please promptly notify us at email@example.com so that we may investigate and take appropriate action.
D. Digital Millennium Copyright Act.
PFCB has designated an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act, 17 U.S.C. Sec. 512, (the "DMCA") and avails itself of the protections under the DMCA. Further, we reserve the right to remove any User Content on the PFCB Applications which allegedly infringes another person's copyright.
E. Filing a Complaint.
If you believe any materials on PFCB Applications infringe a copyright, you should provide us with a request to take down the allegedly infringing material in the form of a written letter, sent by regular mail only (“DMCA Takedown Notice”), which at a minimum includes:
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Your name, address, telephone number and email address (if available);
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner or the law;
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
The signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notwithstanding the foregoing, we reserve the right to ignore a DMCA Takedown Notice that is not in compliance with the DMCA.
F. Filing a Counter-Notice.
If your material has been removed or blocked by us as a result of our receipt of a DMCA Takedown Notice, you may send us a request asking for the allegedly infringing material to be restored in the form of a written letter, sent by regular mail only (“DMCA Counter-Notice”), which at a minimum includes:
Identification of the copyrighted work (or works) that was removed by PFCB and the location at which the works appeared before they were removed. The information must be reasonably sufficient to permit us to identify the copyrighted work;
Your name, address, telephone number and email address (if available);
A statement that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which your address is located, or New York if your address is outside of the United States;
A statement that you will accept service of process from the person (or an agent of such person) who provided the DMCA Takedown Notice to us;
A statement that you have a good faith belief that the allegedly infringing material identified above as the copyrighted work was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
A signature of a person authorized to act on behalf of the owner of the copyrighted work that was taken down.
When we receive a DMCA Counter-Notice, we will send a copy of the DMCA Counter-Notice to the party who originally sent us the DMCA Takedown Notice and we will reinstate the allegedly infringing material unless that party obtains a court order supporting the removal of the allegedly infringing material. Notwithstanding the foregoing, we reserve the right to ignore a DMCA Counter-Notice that is not in compliance with the DMCA.
Both the DMCA Takedown Notice and the DMCA Counter-Notice must be sent to our designated DMCA agent addressed as follows:
P.F. Chang’s China Bistro, Inc.
Attn: General Counsel
Fax: (480) 888-3002
You should contact the DMCA Agent only for delivering copyright infringement notices and counter-notifications. The DMCA Agent will not answer any other inquires.
3. Disclaimer of Warranties and Limitation of Liability.
Your use of PFCB Applications is at your sole risk. Neither PFCB, nor its affiliates, nor any of their respective officers, directors, employees, agents, third-party content providers, merchants, sponsors, licensors, or the like (collectively, “Providers”), warrant that PFCB Applications will be uninterrupted, error-free, or free of viruses, worms, Trojan horses, keyboard loggers, spyware, adware, malware, or any harmful, invasive, or malicious codes or programs (collectively, “malicious content”) or any other defects. The information, products, and services published on our PFCB Applications may contain inaccuracies or typographical errors. Providers make no warranty as to the results that may be obtained from the use of PFCB Applications or as to the accuracy, reliability, or currency of any information, content, service, or merchandise provided through PFCB Applications. From time to time the prices of our food in our restaurants may be higher or lower than those prices available through PFCB Applications. In that event, the prices on our menus at each restaurant location will govern the price you will pay.
A. Disclaimer of Warranties.
PFCB APPLICATIONS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, PFCB AND THE PROVIDERS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED AND STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
NEITHER PFCB NOR ANY PROVIDERS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF PFCB APPLICATIONS, SECURITY OF PFCB APPLICATIONS, THE AVAILABILITY OF ANY GOODS OR SERVICES OFFERED ON OR THROUGH PFCB APPLICATIONS, OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS, INCLUDED ON OR THROUGH PFCB APPLICATIONS. ANY MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF PFCB APPLICATIONS IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
B. Limitation of Liability.
NEITHER PFCB NOR ANY PROVIDERS GUARANTEE THE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO PFCB APPLICATIONS OR ANY RELATED SERVICES. THE OPERATION OF PFCB APPLICATIONS MAY BE INACCESSIBLE DUE TO, OR INTERFERED WITH BY, NUMEROUS FACTORS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER PFCB NOR ANY PROVIDERS WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF OR INABILITY TO USE PFCB APPLICATIONS, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (EVEN IF PFCB OR ITS PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
THE LIMITATION OF LIABILITY IN THIS SECTION WILL APPLY NOTWITHSTANDING YOUR RELIANCE ON ANY INFORMATION OBTAINED FROM PFCB, THE PROVIDERS OR PFCB APPLICATIONS, AND WILL APPLY TO ALL DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, MALICIOUS CONTENT, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO PFCB RECORDS, PROGRAMS, OR SERVICES, AND WHETHER OR NOT PFCB OR PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY SECTION WILL APPLY TO ALL CONTENT, MERCHANDISE, AND SERVICES AVAILABLE ON OR THROUGH PFCB APPLICATIONS OR PFCB.
SUCH LIMITATION OF LIABILITY WILL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF OR RELIANCE ON THE SERVICES, FROM INABILITY TO USE PFCB APPLICATIONS OR THE SERVICES, FROM MISTAKES ON PFCB APPLICATIONS, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES).
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
If you are a California resident, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or she must have materially affected his or her settlement with the debtor.”
If you are dissatisfied with any portion of our Services or PFCB Applications, your sole and exclusive remedy is to discontinue your use of our Services and PFCB Applications.
4. Use of Services.
A. Online Conduct.
You agree to use PFCB Applications and any Services only for lawful purposes. Without limitation, you may not use PFCB Applications for any of the following: (i) engaging in any illegal activity or the planning of any illegal activity; (ii) disseminating or transmitting statements or material that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) creating, disseminating or transmitting files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret, publicity or other intellectual property rights of any person; (iv) creating a false identity or otherwise attempting to mislead any person as to the identity or origin of any communication; (v) exporting, re-exporting or permitting the downloading of any message, software or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions; (vi) interfering with, disrupting, or attempting to gain unauthorized access to other accounts on PFCB Applications or any other computer network; (vii) disseminating or transmitting malicious content; (viii) damaging, disabling, overburdening, or impairing any PFCB server, or the network(s) connected to any PFCB server, or interfering with any other party’s use and enjoyment of any PFCB Applications; (ix) gaining unauthorized access to any PFCB Applications, accounts, computer systems or networks connected to any PFCB server or to any PFCB Application through hacking, cracking, distribution of counterfeit software, password mining or any other means; (x) reverse engineering, decompiling or disassembling any software accessed through PFCB Applications; (xi) discussing the mechanics of sweepstakes, contests, or similar promotions available on or through PFCB Applications with the intent of manipulating, corrupting or otherwise affecting the outcome of any such promotions, or posting, uploading, transmitting, sending, or otherwise making available any content that may or is intended to enable, authorize, instruct, encourage, assist, suggest, inform, or promote activities that may subvert or not comply with the rules, restrictions, or limitations applicable to such promotion; or (xii) engaging in any other activity deemed by PFCB in its sole discretion to be in conflict with the spirit or intent of PFCB Applications.
PFCB reserves the right to monitor all network traffic to PFCB Applications. PFCB may block unauthorized attempts or intrusions to upload or change information or cause damage to PFCB Applications in any fashion. Anyone using PFCB Applications expressly consents to such monitoring.
We may terminate your access to PFCB Applications immediately without notice if, in our sole discretion, you fail to comply with any term or provision of these Terms.
D. International Users.
PFCB Applications can be accessed from locations around the world. PFCB makes no representations that PFCB Applications, or the content available through PFCB Applications, are appropriate for use at other locations outside the United States. Access to PFCB Applications from locations where PFCB Applications or any of its content is illegal is prohibited. If you access PFCB Applications from a location outside the United States, you are responsible for compliance with all local and international laws.
If you use PFCB Applications, you are responsible for restricting access to your computer and ensuring that your computer and mobile device are free from all types of malicious content, including content that may track any data you enter via PFCB Applications, including email address, credit card number, and other payment-related information.
F. Payment Verification.
PFCB may refuse service or decline orders for any reason. As a condition to accepting payment, PFCB may, in its sole discretion, require you to provide written verification and proof of your identity by supplying us with a copy of government-issued photo identification.
G. Third-Party Links.
5. Resolution of Disputes.
A. Governing Law.
These Terms will be governed by and construed in accordance with the laws of the State of Arizona without application of conflict of laws rules unless the provisions of Resolution by Arbitration below apply.
B. Resolution of any Dispute.
If a dispute arises between you and PFCB, we want to provide you with an efficient, neutral and cost-effective means of resolving the dispute. Most customer concerns can be resolved quickly and to the customer’s satisfaction by calling our toll-free numbers:
P.F. Chang's at 1-866-732-4264
Pei Wei at 1-877-782-6356
Or write to us:
P.F. Chang’s China Bistro, Inc.
Attn: Guest Relations Manager
7676 East Pinnacle Peak Road
Scottsdale, AZ 85255
If, however, there is an issue that needs to be resolved, these Terms describe how both of us will proceed:
C. Limitation of Legal Remedies
INSTEAD OF SUING IN COURT, YOU AND PFCB EACH AGREE TO ARBITRATE DISPUTES ON A BILATERAL (INDIVIDUAL) BASIS. You and PFCB agree that with the exception of any violation of PFCB intellectual property rights and any other rights set forth below, any dispute, controversy or claim arising out of or relating to any aspect of our relationship, the products and services accessible from PFCB or PFCB Applications, or our marketing efforts, including complaints concerning unsolicited text messages, emails, and telemarketing calls (collectively, "Claim(s)") which cannot be settled through customer service refunding your payments in full, will be resolved by one arbitrator through binding arbitration. This agreement to arbitrate is intended to be broadly interpreted. It includes Claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory. The arbitrator’s decision and the award is final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.
D. Jury Trial Waiver.
YOU AND PFCB EACH VOLUNTARILY WAIVE THE RIGHT TO TRIAL BY JURY IN RESOLVING ANY DISPUTE BETWEEN US ARISING OUT OF THESE TERMS OR THE PFCB APPLICATIONS.
E. Class Action Waiver.
You and PFCB each agree that we may bring claims against the other only in an individual capacity and not in a class action or representative proceeding. All arbitrations under these Terms must be conducted on an individual (and not a class-wide) basis, and an arbitrator will have no authority to award class-wide relief. You acknowledge and agree that: (i) these Terms specifically prohibit you from commencing any legal proceedings as a representative of others, participating in a class, representative, or collective action as a class representative, class member or an opt-in party, acting as a private attorney general, or joining or consolidating Claims with claims or proceedings brought by any other person; and (ii) there will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, as a private attorney general, or in a representative capacity on behalf of any person (“class action waiver”).
F. Resolution by Arbitration.
A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought (a “Notice”). All Notices to PFCB must be sent to the following address: P.F. Chang’s China Bistro, Inc., Attn: Legal Department, 7676 East Pinnacle Peak Road, Scottsdale, AZ 85255. All notices to you will be sent to the email or street address provided in your account, if available. Upon receipt of such Notice, the receiving party will have a 60 day period in which it may satisfy the Claim against it by fully curing the Claim, providing all the relief requested in the Notice, or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such sixty-day cure period, you or PFCB may commence an arbitration proceeding. The arbitration of any Claim under these Terms will be referred to the American Arbitration Association (the “AAA”) under its rules and procedures, including the AAA's Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes. These rules and procedures are available by calling the AAA or by visiting its web site at www.adr.org. The arbitration of any Claim will be conducted in the State of Arizona, and for any non-frivolous Claim that does not exceed $10,000, PFCB: (1) will pay all costs of the arbitration; (2) will, if you prefer, conduct the arbitration by telephone; and (3) will not seek attorney’s fees if PFCB prevails. Each party will pay the fees and costs of its own counsel, experts, and witnesses.
G. Choice of Law.
These Terms concerns a transaction in interstate commerce, and therefore will be governed by the United States Federal Arbitration Act, 9 U.S.C. Â§ 1 et seq. (the “FAA”). The FAA’s provisions, not state law, govern all questions of whether a Dispute is subject to arbitration.
Any claim or action for (i) indemnification, (ii) any violation of PFCB intellectual property rights, (iii) contribution, (iv) interpleader, or (v) injunctive relief arising out of a Claim, will not be subject to arbitration.
This arbitration provision shall survive termination of these Terms and the closing of your account or other relationship with PFCB.
If any provision of this Resolution of Disputes provision is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable, except that if for some reason the class action waiver for any Claim cannot be enforced, then the provision to arbitrate will not apply.
K. Statute of Limitations.
You agree that regardless of any statute or law to the contrary, any dispute or Claim must be filed within one (1) year after such claim or cause of action arose, or be forever barred.
If any part of these Terms, other than the class action waiver as set forth above, is determined by a court of competent jurisdiction or arbitrator to be invalid or unenforceable, it will not impact any other provision of these Terms, all of which will remain in full force and effect. Headings in these Terms are for convenience of reference only and will not affect the interpretation or construction of these Terms. The failure of PFCB to partially or fully exercise any rights available under these Terms, or the waiver by PFCB of any breach of these Terms by you, will not prevent a subsequent exercise of such right by PFCB or be deemed a waiver by PFCB of any subsequent breach by you of the same or any other provision of these Terms. These Terms do not create third-party beneficiary rights enforceable by third parties. The rights and remedies of PFCB under these Terms, its policies and any other applicable agreement between you and PFCB will be cumulative, and the exercise of any such right or remedy will not limit our right to exercise any other right or remedy.
7. Questions or Comments.
If you have any questions or comments concerning our Terms, you may contact us by sending an email with your inquiry and current contact information to firstname.lastname@example.org, or by sending your inquiry in writing with your current contact information to:
P.F. Chang’s China Bistro, Inc.
Attn: Guest Relations Manager
Copyright 2014, P.F. Chang’s China Bistro, Inc. All rights reserved.