These terms and conditions of use (the “Terms and Conditions” or “Agreement”) govern your access to and use of www.heronfinance.com (the “Website”) (both mobile and online versions), as well as various web pages and subdomains operated by Warbler Labs, Incorporated (“Warbler Labs”). These Terms and Conditions is made and entered into by and between you and Warbler Labs (together with its Affiliates (as defined below), collectively “Company”, “Warbler” “us”, “we”, or “our”). These Terms and Conditions also govern your access to and use of any products, materials, and services provided by or on the Website, including your use of interactive features, platforms, investor marketplace, widgets, plug-ins, applications, content, downloads and/or other online services that we own and control and that post a link to this Agreement. (collectively, with the Website, the “Services”).
Acceptance of this Agreement
The Website is offered to you conditioned on your acceptance, without modification, of the terms, conditions, and notices contained in this Agreement. Please review the following terms carefully and retain a copy of this Agreement for your records. By accessing or using the Services (or by clicking on “accept” or “agree” to this Agreement when prompted), you agree to be bound by the terms and conditions of this Agreement on behalf of yourself or, if applicable, the entity or organization that you represent. If you do not agree to the terms and conditions of this Agreement, you may not use or access the Services and must exit the Website immediately. For purposes of this Agreement, “Affiliates” shall mean, with respect to a party, any business entity now or hereafter controlled by, controlling or under common control of Warbler Labs. For purposes of this definition, control exists when an entity owns or controls directly or indirectly greater than fifty percent (50%) of the outstanding equity representing the right to vote for the election of directors or other managing authority of another entity.
Eligibility Requirements to Use or Access the Services
To use the Website or any other Services, you must be (i) at least 18 years old, and (ii) not a competitor of or using the Services for purposes that are competitive with the Company. By accessing or using the Services, you represent and warrant that you meet all the foregoing eligibility requirements. You also represent and warrant that you have the right, authority, and capacity to enter into this Agreement on your behalf or the entity or organization that you represent. If you do not meet all these requirements, you may not use or access the Services.
Changes to this Agreement.
The Company reserves the right at any time in its sole discretion to change the terms and conditions set forth in this Agreement or change the Website or Services, including eliminating or discontinuing any features or functionality without notice to you. The latest version of the Agreement will be posted on the Website and should be reviewed prior to accessing or using the Services. All changes will be effective immediately when posted on the Website and will apply to your use of and access to the Services from that point onward. Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement.
Access to the Services
The Services may change from time to time as the Company evolves, refines, or adds more features to the Services. The Company reserves the right to modify, withdraw, or discontinue the Services, in whole or in part, at any time without notice to you. You agree that the Company shall have no liability to you or any third party for any losses or damages caused by the Services not being available, in whole or in part, at any time or for any period.
By accessing and/or using the Service, you agree to be bound by this Agreement. In some instances, both this Agreement and separate agreements, guidelines, rules, or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Service or to a service or product offered via the Service (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between this Agreement and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. Additionally, certain features and services made available through the Service from time to time may be governed by different terms of service.
If You Want to Use the Service, then carefully read this entire Agreement (including all links to details), as they constitute a binding agreement between you and us, and they affect your legal rights and obligations. Each time you access and/or use the Service (other than to simply read this Agreement), you agree to be bound by and comply with this Agreement and any Additional Terms (defined herein) then posted. Therefore, do not use the Service if you do not agree. In the absence of the limitations that are set forth in this Agreement, such as your grants and waivers of rights, the limitations on our liability, and your indemnity of us – we would not make the Service available to you.
Privacy
Your use of the Website is subject to our privacy policy (the “Privacy Policy”). Please review our Privacy Policy which also governs the Website and informs you of our data collection and data use practices. Our Privacy Policy is available here. You should understand that information collected from you in accessing the Website or subscribing for investments made available on the Website is not expected to be deleted or removed from the Company’s records, and you should expect that such information may be held by the Company in perpetuity.
The Children’s Online Privacy Protection Act requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years old. We do not knowingly collect or solicit personally identifiable information from children under 13 years old. If you are a child under 13 years old, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13 years old, we will delete that information as quickly as possible. If you believe that a child under 13 years old may have provided us personal information, please contact us.
Policy for Using the Services
Prohibited Uses You may use the Services for lawful purposes only and in accordance with this Agreement. You agree not to use the Services in any way that could damage the Services or general business of the Company. You may use the Services for any business or commercial purposes.
No Legal, Tax or Accounting Advice
The Company does not provide legal, accounting, investment or tax advice. Any representation or implication to the contrary is expressly disclaimed. You should consult your own legal, accounting, investment and tax experts before using the Service.
Important Notices Applicable to Your Use of the Service
It is important that you read this Agreement in its entirety, and below are some of the more significant notices with respect to an investment that we want to bring to your attention at the outset:
Service Content, Ownership, Limited License and Rights of Others
a. Content. The Service contains a variety of: (i) materials and other items relating to and posted by the Company, and their products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of the Company (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
b. Ownership. The Service (including past, present, and future versions) and the Content are owned or controlled by the Company, our licensors and/or certain other third parties. All right, title, and interest in and to the Content available via the Service is the property of the Company or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. The Company owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service. To the extent that you create any derivatives of any Content, you hereby assign to the Company all right, title and interest in and to such derivatives and all intellectual property right in the foregoing. No right, title or interest in or to any Warbler Entity Content is granted, transferred or otherwise provided by this Agreement.
c. Limited License. Subject to your strict compliance with this Agreement and any Additional Terms, the Company grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in the Company’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
d. Rights of Others. When using the Service, you must respect the intellectual property and other rights of the Company and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.
Service and Content Use Restrictions
You are granted a non-exclusive, non-transferrable, revocable license to access and use the Website strictly in accordance with this Agreement. As a condition of your use of the Website, you warrant to the Company that you will not use the Website for any purpose that is unlawful or prohibited by this Agreement. Notwithstanding the generality of the foregoing, you may not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to the Company; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, the Company, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User Content (defined below); (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate this Agreement or any Additional Terms.
You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by this Agreement or any Additional Terms or with the prior written consent of an officer of the Company or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
The Company may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in the Company’s sole discretion, and without advance notice or liability.
This Agreement and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by the Company and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
a. Accounts. By accessing or using the Service in any manner, you become a Service user. Users who have or represent a business or commercial-related enterprise that wish to invest in the Company’s offerings may elect to create a profile for themselves or for an entity they create for investment purposes. The Service connects accredited investors with investment opportunities and efficiently communicates with investors, distributes investment documents and centralizes ongoing investor relations. Users visit the Service to learn, create profiles, browse, and/or invest. In order to access or use some (or potentially all) of the features on the Service, you may be required to first register for a user or company account through our registration process that we make available through the Service and enter into an investment advisory and management agreement with Warbler Advisory, Inc. (“Warbler Advisory”). The Service’s practices governing any resulting collection and use of your personal information are disclosed in our Privacy Policy. If you register for any feature that requires an email address, then you will create a passkey, and you affirm and agree that: (i) you will not use an email address that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive; (ii) all information you provided to the Company is true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, you will maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) you are solely responsible for all activities that occur under your account – whether or not you authorized the activity; (iv) you are solely responsible for maintaining the confidentiality of your account and for restricting access to your device so that others may not access any protected portion of the Service using your account or passkey; (v) you will immediately notify us of any unauthorized use of your account or any other breach of security; and (vi) you will not sell, transfer, or assign your account or any account rights. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates this Agreement, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.
b. Accredited Investor. The securities offered on this Service may only be purchased by Accredited Investors, as defined by Rule 501 of Regulation D under the Securities Act of 1933, as amended. Federal law and regulations restrict investment in any of the securities offerings by non-accredited investors. Before you can invest in any of the securities offerings on the Service, you must register with the Service and qualify as an “Accredited Investor.” Prior to investing, you may be asked to verify your Accredited Investor status by completing and executing a certification and provide necessary documentation as proof of your income and/or net worth. You acknowledge and agree that all information you provide for the registration is complete and accurate. YOU MUST BE AN ACCREDITED INVESTOR TO INVEST IN ANY OFFERING POSTED ON THE SERVICE AND SUBMIT TO THIRD PARTY VERIFICATION. You agree that, should any material changes occur that might affect your status as an Accredited Investor, you shall immediately provide us with such information in writing.
c. Other Eligibility Requirements. The Service is available only to individuals who are at least 18 years of age. You represent and warrant that you are at least 18 years of age and are of legal age to form a binding contract with the Company and that you are fully able and competent to enter into the terms and conditions set forth in this Agreement and other agreements on the Service, and that all registration information you submit is accurate and truthful. If you are an entity applying to participate in an investment transaction using the Service, you represent and warrant that at all times during its use of the Website or Services, you are, and shall continue to be, duly authorized and empowered under any law or regulation to engage in the activities contemplated by this Agreement. The Company may, in their sole discretion, refuse to offer the Service to any person or entity and the Company may, in their sole discretion, change its eligibility criteria at any time.
d. Exploitation. You shall not sell, license, sublicense, transfer, assign, rent, lease, loan, host, or otherwise exploit the Content or the Services in any way, whether in whole or in part.
e. No Altering of Notices. You shall not delete or alter any copyright, trademark, or other proprietary rights notices from copies of the Content.
f. No Competition. You shall not access or use the Content in order to build a similar or competitive website, product, or service.
g. Systematic Retrieval. You shall not use any information retrieval system to create, compile, directly or indirectly, a database, compilation, collection or directory of the Content or other data from the Services.
h. Third-Party Links and Ads. The Services may contain links to third-party websites, resources, and services, as well as advertisements (collectively, “Third-Party Links”). Third-Party Links are provided for your convenience only. The Company does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links. The Company has no control over the contents, products, or services of any Third-Party Link and accepts no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any Third-Party Link, you do so entirely at your own risk and subject to the terms and conditions of use for such Third-Party Link. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with any Third-Party Link.
a. General. The Company may now or in the future offer users of the Service the opportunity to post, upload, display, publish, distribute, transmit or otherwise make available on or submit through the Service, messages, text, files, comments, responses, information, content, results, reviews, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User Content”). The Company may allow you to do this through contact us, email, and other communications functionality. Subject to the rights and license you grant in this Agreement, you retain whatever legally cognizable right, title, and interest that you have in your User Content and you remain ultimately responsible for it.
b. Non-Confidentiality of Your User Content. Except as otherwise described in the Service’s posted Privacy Policy or any Additional Terms, you agree that: (a) your User Content (which, for clarification, does not include your personal information) will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned; and (b) the Company does not assume any obligation of any kind to you or any third party with respect to your User Content. Upon the Company’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with this Agreement or any Additional Terms. You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User Content may not be secure, and you will consider this before submitting any User Content and do so at your own risk. In your communications with the Company, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for websites, recipes, products or otherwise (collectively, “Unsolicited Feedback”). Any Unsolicited Feedback you post on or send to us via the Service are deemed User Content and licensed to us as set forth below. In addition, the Company retains all of the rights held by members of the general public with regard to your Unsolicited Feedback. The Company’s receipt of your Unsolicited Feedback is not an admission by the Company of their novelty, priority, or originality, and it does not impair the Company’s right to contest existing or future intellectual property rights relating to your Unsolicited Feedback.
c. License to the Company of Your User Content. Except as otherwise described in any applicable Additional Terms, which specifically govern the submission of your User Content, you hereby grant to the Company, and you agree to grant to the Company, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effect the rights and license that you grant to the Company to your User Content, you also hereby grant to the Company, and agree to grant to the Company, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted herein.
You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Service, or in another reasonable manner that we may elect; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address by updating your account information. If you have a question regarding using the Service, you may contact us at [email protected]. You acknowledge that the provision of customer support is at the Company’s sole discretion and that we have no obligation to provide you with customer support of any kind.
a. Linked Services; Advertisements. The Website or Services may contain links to other websites (“Linked Sites”). Linked Sites are not under the control of the Company and the Company is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. The Company is providing these links to you only as a convenience and the inclusion of any link does not imply endorsement by the Company of the site or any association with its operators.
a. Wireless Features. The Service may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
b. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify us of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes.
a. Termination. The Company may suspend or terminate your access or rights to use the Services at any time for any breach of the terms of this Agreement. Upon termination of your access or rights to use the Services, your right to access and use the Services will immediately cease. The Company will not have any liability whatsoever to you for any suspension or termination of your rights under this Agreement, including for termination of your account. If you have registered for an account, you may terminate this Agreement at any time by contacting the Company and requesting termination.
b. Effect of Termination. Upon termination of this Agreement, any provisions that by their nature should survive termination shall remain in full force and effect. This includes, without limitation, ownership or intellectual property provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Services shall not relieve you of any obligations arising or accruing prior to termination or limit any liability that you otherwise may have to the Company or any third party.
c. No Warranty: THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, THE COMPANY AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE, COMPLETE, OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR REQUIREMENTS OR EXPECTATIONS. TO THE FULLEST EXTENT PROVIDED BY LAW. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, DATA, OR OTHER PROPRIETARY MATERIAL THAT MAY RESULT FROM YOUR USE OF THE SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR THIRD-PARTY LINKS, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES OR ANY OTHER USER.
THE SERVICES WOULD NOT BE PROVIDED WITHOUT THESE LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION, OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
d. Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY OR ITS AFFILIATES, OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SERVICES, ANY THIRD-PARTY LINK, OR ANY CONTENT ON THE SERVICES OR SUCH THIRD-PARTY LINK, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, REVENUE, OR PROFIT, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF DATA, LOSS OF GOOD WILL, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU. e. Indemnification. You agree to indemnify, defend, and hold harmless the Company and its affiliates and their respective officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) from and against any and all losses, claims, actions, suits, complaints, damages, liabilities, penalties, interest, judgments, settlements, deficiencies, disbursements, awards, fines, costs, fees, or expenses of whatever kind, including reasonable attorneys’ fees, fees and other costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, arising out of or relating to your breach of this Agreement or your use or misuse of the Services including, but not limited to, any actions taken by a third party using your account. The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to assist and cooperate with our defense or settlement of these claims.
a. Governing Law. All matters relating to this Agreement, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, without giving effect to any conflict of law principles.
b. Dispute Resolution. Any action or proceeding arising out of, or related to, this Agreement or the Services, any Communications you receive, any investment products sold or distributed through the Website, or this Agreement and prior versions of this Agreement, including claims and disputes that arose between us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and the Company may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or the Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
All arbitrations shall proceed on an individual basis. You agree that you may bring claims against the Company in arbitration only in your individual capacities and in so doing you hereby waive the right to a trial by jury, to assert or participate in a class action lawsuit or class action arbitration (either as a named-plaintiff or class member), and to assert or participate in any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. Notwithstanding anything to the contrary under the rules of the American Arbitration Association, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Limitation to Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY WAIVED AND BARRED. 18. Miscellaneous
a. Waiver. Except as otherwise set forth in this Agreement, no failure of the Company to exercise, or delay by the Company in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
b. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
c. Entire Agreement. This Agreement, together with all documents referenced herein, constitutes the entire agreement between you and the Company with respect to the subject matter contained herein. This Agreement supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter hereof.
d. Headers. Headings and titles of sections, clauses, and parts in this Agreement are for convenience only. Such headings and titles shall not affect the meaning of any provisions of the Agreement.
e. No Agency, Partnership or Joint Venture. No agency, partnership, or joint venture has been created between you and the Company as a result of this Agreement. You do not have any authority of any kind to bind the Company in any respect whatsoever.
f. Contact Information. All feedback, comments, requests for technical support, and other communications relating to the Services should be directed to [email protected].