1. DEFINITIONS

Unless otherwise defined herein, all capitalized terms used herein have the meanings ascribed to them in the CAKE.com Terms of Use, as applicable.

“Plaky” or “Software” means the software for managing projects, teams, and all types of work, the browser app, all the desktop apps and mobile apps, its updates, upgrades, enhancements, modifications, extensions, new features, and possible replacements provided by CAKE.com, now existing or later developed, and other programs and tools, developed in conjunction therewith, including the cloud-based service, whereby CAKE.com is making available the Software, the User Account, and the Content (including the related mobile apps, desktop apps, and extensions, as well as other computer programs CAKE.com makes available in conjunction therewith) on-demand.

“PlakyServices” means making Plaky available by CAKE.com in any version, in full or in part, including any updates, upgrades, enhancements, modifications, new features, programs and tools.

“Website” means the websites located at https://plaky.com and https://app.plaky.com, as well as the related subdomains, mobile apps, and desktop apps and all browser extensions collectively or each of them individually.

2. SUBSCRIPTION

By creating a User Account at Plaky you automatically start your Free Plan. You may choose to switch from the Free Plan to any Subscription Plan at any time. Once you choose to do so, we start to apply the respective subscription fees in accordance with the applicable Subscription Plan.

Anyone who subscribes to any Subscription Plan or anyone who permits or causes another person to make an order on their behalf will be liable for the payment arising from such a subscription. The same rules will apply to anyone who permits to be designated as a payer for a Subscription Plan.

All payments for the Subscription Plan are due in advance by the first day of the billing period.

Prices set out in the Price Plan are subject to change at any time. Any price may change at any time and will become binding on the Enterprise upon the following conditions:

(1) CAKE.com has sent a at least 7-days-period-notice;

(2) The User did not unsubscribe from the Subscription Plan within such a period or by the end of the then-current Subscription Term, whichever date is later.

Such notice may be sent to you by email to your most recently provided email address or posted on the Website or by any other manner chosen by CAKE.com in its commercially reasonable discretion. You will be deemed to have received any such notice that is posted on the Website on the day following the date it was posted.

3. DISCLAIMER OF WARRANTIES

YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR SERVICES AND ANY CONTENT THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, CAKE.COM DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, SECURE, TIMELY, OR WILL BE UNINTERRUPTED OR OF SATISFACTORY QUALITY. WHILE CAKE.COM ATTEMPTS TO MAKE YOUR USE OF OUR SERVICES AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES. USER IS SOLELY RESPONSIBLE FOR ANY DAMAGE USER MAY SUFFER RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CAKE.COM OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF CAKE.COM’S OBLIGATIONS.

Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you. In such jurisdictions, if there is a breach of warranty, you may notify Apple if you purchased the App from Apple, and Apple may refund the purchase price for the App, if any. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation or liability whatsoever.

4. LIMITATION AND EXCLUSION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CAKE.COM OR OUR AFFILIATES, AND THEIR RESPECTIVE BUSINESS PARTNERS, LICENSEES, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (“CAKE.COM PARTIES”) BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY (INCLUDING LOST PROFITS, ANY BREACH OF SECURITY OR ANY DAMAGE TO YOUR DEVICE, LOST DATA, PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SERVICES, OR YOUR INABILITY TO ACCESS OR USE THE SERVICES), INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, ARISING FROM, RELATING TO, OR IN ANY WAY CONNECTED WITH THE USE OR THE PERFORMANCE OF THE SERVICES, OR THESE TERMS, EVEN IF CAKE.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

In the event that any of the foregoing limitations are deemed unenforceable or in the event any liability of the CAKE.com Parties is established, to the greatest extent permitted by law, the total aggregate liability of the CAKE.com Parties for any claim arising out of or relating to our Services, regardless of the form of the action, is limited to the greater of $20 or the amount paid by you to use our Services in the preceding twelve (12) months.

You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between CAKE.com and you. You understand that the Services would not be provided without such limitations.

The limitations set forth in this Section 4 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of the CAKE.com Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

5. JURISDICTION AND CHOICE OF LAW; DISPUTE RESOLUTION

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with CAKE.com and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.

No Representative Actions. You and CAKE.com agree that any dispute arising out of or related to these Supplemental Terms or our Services is between you and CAKE.com and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action, or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or CAKE.com seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or CAKE.com seek injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and CAKE.com waive your rights to a jury trial and to have any other dispute arising out of or related to these Supplemental Terms or our Services, including claims related to privacy and data security, (collectively, “Dispute(s)”) resolved in court. Instead, for any Dispute that you have against CAKE.com you agree to first contact CAKE.com and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to CAKE.com by email at support@cake.com or by certified mail addressed to CAKE.com AG, Oberallmendstrasse 18, 6300 Zug, Switzerland. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and CAKE.com cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Santa Clara County in the State of California. You and CAKE.com agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules is available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and CAKE.com agree that these Supplemental Terms affect interstate commerce and that the enforceability of this Section 5 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Supplemental Terms, and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one Enterprise’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one Enterprise.
The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, CAKE.com, and you will maintain the confidentiality of any arbitration proceedings, judgments, and awards, including information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and CAKE.com agree that the Party that initiates the arbitration shall pay all JAMS fees and costs. You and CAKE.com agree that the state or federal courts of the State of California and the United States sitting in Santa Clara County in the State of California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any Dispute will be governed by and construed and enforced in accordance with the laws of California, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the Parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in Santa Clara County in the State of California.
Any Dispute must be filed within one (1) year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and CAKE.com will not have the right to assert the claim.
If any portion of this Section 5 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Supplemental Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 5 or the Parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 5; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 5 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 5 will be enforceable.

6. MISCELLANEOUS

If any provision of these Supplemental Terms is found invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Supplemental Terms, which shall remain in full force and effect. If any provision of these Supplemental Terms violates any mandatory rule of applicable law and proves to be void as a result thereof, such provision shall, for those specific circumstances and only in that particular respect in which it is void, be deemed to have been amended to comply with the law. Any such amendment shall be confined to the minimum necessary to make the provision valid and shall retain as much of its original ambit and meaning as possible. All notices to CAKE.com shall be provided to support@cake.com or Oberallmendstrasse 18, 6300 Zug, Switzerland. CAKE.com may give notice to you via the email address associated with your User Account or by mail or courier to the address provided by the applicable Business User. Notice shall be deemed to have been received the next day if given via notice through a User Account or via email, or five (5) business days after posting the notice via courier or registered post. Our failure to exercise or enforce any right or provision of these Supplemental Terms shall not constitute a waiver of such right or provision. These Supplemental Terms (as updated from time to time), including any agreements incorporated by reference herein, constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements and understandings between the Parties with respect to that subject matter. In case of conflict between any provision herein and any statement, representation, or other information published on the Plaky Services or contained in any other materials or communications, the provision in these Supplemental Terms shall prevail. These Supplemental Terms are binding upon you, your heirs, executors, beneficiaries, successors, and assigns, and you may not assign these Supplemental Terms to any other party without our prior written consent. Such consent may be withheld in our sole discretion, and any purported assignment without such consent shall be null and void. We may assign these Supplemental Terms without notice thereof to you.

SUPPLEMENTAL PLAKY TERMS OF USE (SWITZERLAND)