Effective: July 15, 2020
These terms of service (“Terms of Service”) constitute a legal agreement between you and Clear Finance Technology Corp, a Canadian corporation, and its subsidiaries (“Company”).
As used in these Terms of Service:
Any reference to “Company” in this document includes its directors, officers, employees, contractors, owners, agents, representatives, licensors, or licensees. The use of the word “including” in these Terms of Service to refer to specific examples will be construed to mean “including, without limitation” or “including but not limited to” and will not be construed to mean that the examples given are an exclusive or exhaustive list of the topics covered.
ARBITRATION NOTICE: THESE TERMS OF SERVICE CONTAIN AN ARBITRATION CLAUSE A LITTLE LATER ON. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND US AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU AND US EACH WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1. Acceptance of Terms
You may not accept these Terms of Service, or access or use the Site or Services, if (a) you are not of legal age to form a binding contract with the Company; (b) you are prohibited by law or regulation from accessing or using the Site or Services; or (c) you are not an Australian, U.K., U.S., or Canadian resident. You understand and acknowledge that only your incorporated business or other legal entity may sign-up, access and use a Service; an individual user not acting on behalf of an incorporated business or other legal entity is prohibited from signing up, accessing and using the Services. If you are a direct competitor of us, you are prohibited from accessing and using the Site and Services without our prior written consent.
We reserve the right, at our sole discretion, to make changes to these Terms of Service from time to time without notice, so please review them frequently. You may view the current version of these Terms of Service at any time via links on www.clear.co. You agree to accept electronic communications and postings of revised versions of these Terms of Service on www.clear.co and agree that such electronic communications or postings constitute notice to you of the revised version of these Terms of Service. Changes take effect immediately upon posting. Your continued use of the Site or Services after any changes or revisions to these Terms of Service will indicate your agreement with the revised Terms of Service.
In addition to these Terms of Service, you may enter into other agreements with us or others that will govern your access and use of the Services. If there is any contradiction between these Terms of Service and another fully executed agreement you enter into with us applicable to specific aspects of a Service, the other fully executed agreement will take precedence in relation to the specific aspects of the Service to which it applies. Please note that any funding you may receive from us will be subject to a separate funding agreement(s) fully executed by you and us. Accordingly, any funding offers, commitments or other expressions of interest you may receive from us is non-binding and can be withdrawn by us at any time for any reason without notice.
2. Privacy and your Personal Information
3. Creating an Account
You may be required to create an account and specify a login ID and password in order to access and use the Site and Services. You must provide truthful and accurate information about yourself when you create your account. Do not impersonate anyone else when you create your account.
You may also be assigned an account by your administrator, in which case additional terms may apply to your access and use of the Site and Services. Please note that your administrator may be able to access or disable your account without our involvement.
You understand, acknowledge and agree that you are responsible for maintaining the security and confidentiality of your login ID and password. If you believe that your login ID and password has been compromised or it is no longer a secret, or if a device that you use to access any Site or Service has been lost or stolen, or if you believe that someone is using your account without your permission, or if you believe that an unauthorized transaction has occurred on your account, you must notify us IMMEDIATELY at [email protected] . The Company reserves the right to access your account at any time in order to respond to your requests for security, as well as for any technical or other support.
We reserve the right, at our sole discretion, to refuse Services to any person at any time for any reason without notice. Not all Services are available in every jurisdiction and we are under no obligation to make the Services available in any jurisdiction.
4. Accuracy of and Changes to your Information
You agree to provide: (a) true, accurate and complete profile, banking, financial, business information and other information as may be prompted by any registration or other forms on the Site or as otherwise requested by the Company, including with respect to accounts maintained at third party sites; and, (b) other information, documents and materials as the Company may request to establish and verify your or any other person's identity or authority to enter into binding agreements on behalf of the incorporated business or other legal entity, to establish and verify the incorporated business or other legal entity's legal existence, good standing in any jurisdiction and eligibility to access and use the Site or Services, or to establish and verify your eligibility (collectively, “Account Information and Supporting Materials”).
You further agree to promptly update all your Account Information and Supporting Materials whenever such information, documents and material is no longer accurate. If you do not do this, the accuracy and effectiveness of the Services provided or made available to you will be affected. If you need help in changing your Account Information and Supporting Materials, please email us at [email protected] . We are not responsible for any processing or technical errors or fees or other Services-related issues arising from your failure to keep your Account Information and Supporting Materials current. You represent and warrant that you have all requisite right, power, and authority to provide us with all Account Information and Supporting Materials and other information and material necessary to facilitate your access and use of the Site and Services.
In addition, in consideration of your access and use of the Site and Services on behalf of an incorporated business or other legal entity, you, on behalf of such person, agree to promptly notify the Company regarding any material changes to information or circumstances impacting the incorporated business or other legal entity's legal existence, good standing in any jurisdiction in which the incorporated business or other legal entity is authorized to conduct business, or eligibility for continued access and use of the Site and Services.
We do not assume any responsibility for the timeliness, accuracy, deletion, non-delivery, or failure to store Account Information and Supporting Materials. The Company will have no liability to you for any harm, loss, cost or damage arising out of, resulting from, or attributable to the Account Information and Supporting Materials. The provisions of this paragraph are in addition to, and not intended to limit or modify, the limitation of liability language otherwise contained in these Terms of Service.
5. Disclosure and Consent to Electronic Communications
You understand and agree that you are entering into these Terms of Service electronically and that certain categories of information (“Communications”) may be provided by the Company to you by electronic means (e.g., via email, through the Service by displaying links to notices generally on the Site, or to your mobile device), unless and until you withdraw your consent as described below. The categories of Communications that may be provided by electronic means include:
Although we reserve the right to provide Communications in paper format at any time, you agree that we are under no obligation to do so. All Communications in either electronic or paper format will be considered to be “in writing.” You should print a paper copy of these Terms of Service and any Communication that is important to you and retain the copy for your records. By agreeing to the Terms of Service, you agree to receive electronically all documents, communications, notices, contracts, and agreements arising from or relating to your access and use of the Site and Services. If you do not wish to receive these Terms of Service or the Communications electronically, or do not otherwise agree to these Terms of Service, you may not access or use the Site or Services.
If you have opened an account with us and you wish to withdraw your consent to have Communications provided electronically, you must close your account by contacting [email protected] and stop accessing and using the Site and Services. Any withdrawal of your consent to receive electronic Communications will be effective only after we have a reasonable period of time to process your withdrawal and only after all amounts payable to us from you, if any, have been received by us. We reserve the right, in our sole discretion, to discontinue the provision of your electronic Communications, or to terminate or change the terms and conditions on which we provide electronic Communications.
6. Third Party Services
We may from time to time provide you with access to, or enable third party software, applications, products, services or website links (collectively, “Linked and Integrated Site(s)”) for your consideration or use. While your access and use of the Linked and Integrated Sites is governed by these Terms of Service, it may also be governed by the terms of service and other agreements of the respective Linked and Integrated Site. Any access or use by you of the Linked and Integrated Sites is solely at your own risk and discretion. The Linked and Integrated Sites are offered or made available to you as a convenience only. You are responsible for ensuring that your access and use of the Linked and Integrated Sites complies with any applicable terms of service and other agreements. If you purchase any good, product or service from any Linked and Integrated Site, your purchase may be governed by the purchase and sale terms of the respective Linked and Integrated Site.
We provide an online directory (“Partner Program Site”) of independent third parties (each, a “Referral Partner”) who provide products and services which you may choose to purchase or receive. Engagements with Referral Partners may in some cases be facilitated through an introduction by your Clearco account representative. We may receive an incentive from certain Referral Partners that you engage through your use of the Site and Services or that we otherwise introduce you to. Any reference by us to a Referral Partner or a Linked and Integrated Site does not constitute or imply we are in any way affiliated, associated, authorized, endorsed by, or otherwise officially connected with such person or organization or any of their affiliates. We do not in any way endorse any such person or organization, and the reference of any such person or organization should not be construed as a recommendation or advice of any kind.
With respect to offers from a Referral Partner, we do not guarantee that you will be presented with offers for any particular type of product or service or that you will meet the eligibility or approval criteria for any particular offer. It is your choice whether or not to apply for and purchase or receive a product or service offered by a Referral Partner. The relationship between you and a Referral Partner or a Linked and Integrated Site is independent of your relationship with us, and, may be subject to such terms as may be agreed to between you and the Referral Partner or Linked and Integrated Site, as applicable. As such, we have no obligation to intervene in any disputes which may arise between you and a Referral Partner or a other Linked and Integrated Site, and you acknowledge that that any such dispute would be governed by the terms of the arrangement you have entered into with the relevant party.
in addition to the disclaimers in section 13, WE DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR GUARANTEES OF ANY KIND REGARDING THE partner program site or any LINKED AND INTEGRATED SITE, INCLUDING THE ACCURACY, RELIABILITY, COMPLETENESS, OPERATION, SECURITY, USABILITY OR AVAILABILITY OF such sites. THIS DISCLAIMER SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. YOU ACKNOWLEDGE THAT WE MAY, in our sole discretion, SUSPEND, REMOVE, DISCONTINUE ACCESS TO the partner program site or any LINKED AND INTEGRATED SITE AT ANY TIME for any reason WITHOUT NOTICE. WE ARE NOT RESPONSIBLE FOR, OR LIABLE TO ANYONE FOR, THE SUSPENSION, REMOVAL OR DISCONTINUATION OF ANY LINKED AND INTEGRATED Site BY THE service PROVIDER THEREOF. WE WILL NOT HAVE ANY RESPONSIBILITY OR LIABILITY TO YOU FOR ANY HARM, LOSS, COST OR DAMAGE ARISING OUT OF, RESULTING FROM, OR ATTRIBUTABLE TO YOUR access, USE OF OR RELIANCE ON THE PARTNER PROGRAM SITE OR ANY LINKED AND INTEGRATED SITE BY YOU OR YOUR AFFILIATES OR ANY of YOUR OR THEIR RESPECTIVE REPRESENTATIVES. The provisions of this paragraph are in addition to, and not intended to limit or modify, the limitation of liability language otherwise contained in these Terms of Service. IN ADDITION TO THE LIMITATION OF LIABILITIES IN SECTION 14, IN NO EVENT WILL WE BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, LIQUATED, EXTRAORDINARY, CONSEQUENTIAL, OR OTHER DAMAGES WHATSOEVER, ARISING OUT OF OR IN CONNECTION WITH the partner program site and ANY LINKED AND INTEGRATED SITE, OR YOUR RELATIONSHIP WITH A referral PARTNER OR the service PROVIDER of a linked and integrated site. THE LIABILITIES limited in this paragraph APPLY: (A) WHETHER SUCH LIABILITy ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE; (B) WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE; AND, (C) EVEN IF THE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
There is no cost to maintain the Company account. The Services offered or made available may require the payment of fees and other amounts. These Services may be subject to a separate agreement(s) into which you must enter prior to participating in such Service.
8. Your Access and Use of the Site and Services
Your right to access and use the Site and Services is personal to you and is not transferable by you to any other person. You understand, acknowledge and agree that you will only access and use the Site and Services for business purposes only and not for personal, family or household purposes. You further understand, acknowledge and agree that the Site and Services may not be accessed for purposes of monitoring or replicating their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Your access and use of the Site and Services may require us to first establish and verify your identity. You authorize us to make any inquiries we consider necessary to establish and verify your identity. These inquiries may include: asking you for information, documents and material (including Account Information and Supporting Materials) requiring you to take steps to confirm ownership of such information, documents and material you provide (including Account Information and Supporting Materials); or, verifying information, documents and material you provide (including Account Information and Supporting Materials) against third party databases or through other sources. If you do not fully cooperate with our inquiries (including providing Account Information and Supporting Materials), or if we are not satisfied in any way with the results of our inquiries, we may refuse to allow you to access and use the Site and Services.
Your access and use of the Site or Services may be interrupted from time to time for any reason, including the malfunction of equipment, periodic updating, maintenance or repair, events beyond our control, or other reasons determined by us. In no event will the Company be liable to any party for any harm, loss, cost or damage arising out of, resulting from, or attributable to any period of downtime of, or inability to access and use, the Site and Services. The provisions of this paragraph are in addition to, and not intended to limit or modify, the limitation of liability language otherwise contained in these Terms of Service.
Your access and use of certain Services may give you the opportunity to interact with potential investors, buyers and other persons having a business, financial or other commercial interest in you, which may ultimately lead to you negotiating and entering into an arrangement with them. For these Services you understand, acknowledge and agree that our role is strictly a platform provider giving you a means to interact with these persons. Any discussions or negotiations you may have, or any arrangement you may enter into, with them is solely between you and them. As such, we have no obligation to intervene in any disputes which may arise between you and them, and you acknowledge that that any such dispute may be governed by the terms of any negotiated arrangement you have entered into with them. We assume no responsibility or liability of any kind arising out of, resulting from, or attributable to your relationship with them, including any arrangement you may have with them. You understand and acknowledge that your decision to have discussions or negotiations, or enter into any arrangement, with them is based solely on your own investigation and judgement and that of your legal advisor, tax advisor, accountant, financial planner, investment advisor, broker and other advisors, if any. You accept sole responsibility for investigating any arrangement with them.
Your access and use of the Site and Services may provide you with opportunities to post photographs, videos, text, messages or other content (collectively, “Interactive Content”). You will read a little later on about the restrictions on posting Interactive Content.
9. Modification to Site or Services
The Company reserves the right at any time to modify, suspend or discontinue, temporarily or permanently, the Site or Services without notice. For example, we may add or remove functionality or features, or we may suspend or stop a particular feature altogether. The Company will have no liability to you for any harm, loss, cost or damage arising out of, resulting from, or attributable to any modification, suspension, or discontinuance of the Site or Services. The provisions of this paragraph are in addition to, and not intended to limit or modify, any limitation of liability language otherwise contained in these Terms of Service. If you don’t like any of changes to the Site or Services, you can stop using them, subject to any of the terms of the Terms of Service that continue to survive and any existing separate agreement you may have with us for a particular Service.
10. Rights you Grant to Us
By signing up, accessing or using the Site and Services, you authorize the Company to access your information, documents and material (including your Account Information and Supporting Materials) maintained by third parties on your behalf. You authorize and permit the Company to use and store any information, documents and material (including your Account Information and Supporting Materials) submitted by you to accomplish these activities and to configure the Services so that it is compatible with the third party sites from which you submit your information, documents and material. You hereby grant the Company a limited power of attorney to access third party sites to retrieve and use your information, documents and material (including your Account Information and Supporting Materials) with the full power and authority to do and perform each thing necessary and desirable in connection with such activities as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN THE COMPANY IS ACCESSING THIRD PARTY SITES TO RETRIEVE AND USE YOUR INFORMATION, DOCUMENTS AND MATERIAL, THE COMPANY IS NOT ACTING AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. By using the Services, you hereby grant the third party the right, power, and authority to act on your behalf to access and transmit your information, documents and material and to order any reports or searches related to your personal and financial information.
You understand that the operation of the Site and Services, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to the Company’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Site and Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. The Company will have no liability to you for any harm, loss, cost or damage arising out of, resulting from, or attributable to any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content. The provisions of this paragraph are in addition to, and not intended to limit or modify, the limitation of liability language otherwise contained in these Terms of Service.
The Company reserves the right to use your name and company name as a reference for marketing or promotional purposes on the Site and in other communication with existing or potential Company customers. To decline the Company this right you need to email [email protected] stating that you do not wish to be used as a reference.
11. No Unlawful or Prohibited Use
As a condition of your access and use of the Site and Services, you will not access or use them for any purpose or in any way that is criminal, unlawful, infringes anyone’s right, is offensive, interferes with the Site or Services (including any technological measures we take to enforce these Terms of Service), inappropriate, or prohibited by these Terms of Service. Below is a non-exclusive, non-exhaustive list of what you may not do if accessing or using the Site and Services:
All rights, title and interest in and to the Site and Services and its components will remain with and belong exclusively to the Company. You shall comply with any codes of conduct, policies or other notices the Company provides you or publishes in connection with the Services, and you shall promptly notify the Company if you learn of a security or data breach related to any Service.
If the Company, in its sole discretion, believes that you may have engaged in any activities that are criminal, unlawful, infringing on anyone’s right, is offensive, interferes with the Site or Services, inappropriate or prohibited by these Terms of Service or applicable law, we may (in our sole discretion) take various actions to protect the Company, other users, and other third parties from fees, fines, penalties, and any other liability (with or without notice), including:
The Company, in its sole discretion, reserves the right to modify or terminate the Site and Services for any reason and at any time without notice to you.
12. Company's Intellectual Property Rights
All the content included or available on the Site and through the Services, including all materials, information, text, data, analyses, valuations, models, software or other application or output therefrom or any part thereof, names, trade names, trademarks, trade dress, service marks, layout, logos, designs, images, graphics, illustrations, artwork, icons, photographs, displays, sound, music, video, animation, organization, assembly, arrangement, interfaces, databases, technology and other intellectual property (collectively, the “Our Content”) is owned exclusively by the Company or our licensors. Our Content is protected by U.S. and international copyright and other intellectual property laws. Accordingly, accessing and using the Site and Services does not give you ownership of any intellectual property right, title or interest in or to Our Content. All rights are hereby reserved. Without limiting the foregoing, none of Our Content may be copied, reproduced, duplicated, published or otherwise distributed in any form or by any means whatsoever without the express prior written permission of the Company or the licensor.
Any feedback, questions, comments, suggestions, ideas or the like that you share or otherwise disclose to the Company will be treated as being non-confidential and non-proprietary. The Company will be free to use such feedback, questions, comments, suggestions, ideas or the like for any purpose whatsoever without any obligation to you, including developing, manufacturing and marketing Services.
13. Disclaimer of Representations and Warranties
THE SITE, THE SERVICES AND ALL CONTENT IS OFFERED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU AGREE THAT YOUR ACCESS AND USE OF THE SITE, THE SERVICES AND ANY CONTENT IS AT YOUR SOLE RISK AND DISCRETION. WE AND OUR PARTNERS (INCLUDING BUSINESS, FINANCING and other partners), service providers, payment providers, sub-processors and contractors MAKE NO REPRESENTATIONS, WARRANTIES, COVENANTS OR GUARANTEES OF ANY KIND REGARDING THE ACCURACY, RELIABILITY, COMPLETENESS, OPERATION, SECURITY, USABILITY OR AVAILABILITY OF THE SITE, THE SERVICES, OR ANY CONTENT. WE AND OUR PARTNERS (INCLUDING BUSINESS, FINANCING and other partners), service providers, payment providers, sub-processors and contractors DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE AND OUR PARTNERS (INCLUDING BUSINESS, FINANCING and other partners), service providers, payment providers, sub-processors and contractors MAKE NO REPRESENTATIONS, WARRANTIES, COVENANTS OR GUARANTEES OF ANY KIND THAT THE SITE, THE SERVICES, OR ANY CONTENT IS FREE OF BUGS, DEFECTS, OR ERRORS, OR INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT, OR EXPROPRIATE ANY SYSTEM, DATA, OR PERSONAL INFORMATION. WE AND OUR PARTNERS (INCLUDING BUSINESS, FINANCING and other partners), service providers, payment providers, sub-processors and contractors MAKE NO REPRESENTATIONS, WARRANTIES, COVENANTS OR GUARANTEES OF ANY KIND THAT WE WILL CORRECT ANY DEFECTS IN THE SITE, THE SERVICES OR ANY CONTENT EVEN WHEN ADVISED OF SUCH DEFECTS.
NEITHER THE SITE, THE SERVICES NOR ANY CONTENT IS INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT OR FINANCIAL ADVICE. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE ARE NOT A LEGAL ADVISOR, TAX ADVISOR, ACCOUNTANT, FINANCIAL PLANNER, INVESTMENT ADVISOR, BROKER, OR ACTING IN A FIDUCIARY CAPACITY. we encourage you to obtain additional information and advice from your advisors who are fully aware of your individual circumstances before making any decisions or implementing any BUSINESS, financial or other strategy.
You understand and acknowledge that: (a) Any analyses, valuations, models, statements, opinions and estimates we may provide are for illustrative and informational purposes only. They are based on certain assumptions and use only the data available to us, as well as our experiential judgement; (b) Any analyses, valuations, models, statements, opinions and estimates we provide or make available reflect our opinion as of the date they are expressed and should not be read or otherwise interpreted as fact or recommendations to purchase, hold, or sell any securities or instrument or to make any investment or other business decisions. They do not constitute a personal recommendation, nor do they take into account the particular objectives, situations or needs of individual persons or companies. You understand that we are not taking any position as to the suitability or advisability of investing in any person or thing; (c) You should not rely on any analyses, valuations, models, opinions, estimates or statements and they are not a substitute for the skill, judgment and experience of the user, its management, employees, advisors and clients when making investment and other business decisions. You agree not to provide any analyses, valuations, models, opinions, estimates or statements we may provide or make available to you to any third party, including any potential investors, buyers and other persons having a business, financial or other commercial interest in you; (d) Unless expressly stated otherwise, our analysis, valuations, models, statements, opinions and estimates are not endorsed by any third party. We assume no obligation to update any content following publication in any form or format; (e) We do not perform an audit and undertake no duty of due diligence or independent verification of any information we receive; (f) None of Our Content is an offer, promotion, solicitation, recommendation or indication of any kind to buy, sell or hold any securities, to select a project, partner or investor, or make any kind of business transaction or other investment or financing decision; (g) Our Content will only reflect the information that we most recently accessed, and as such, may not reflect activity that occurred after we last accessed the applicable third party site or any pending transactions.
You understand and acknowledge that any notices provided to you through the Site or Services may be delayed or prevented by a variety of factors. We will make commercially reasonable efforts to provide notices in a timely manner with accurate information, but we cannot guarantee the delivery, timeliness, or accuracy of the content of any notice. We shall not be liable for any delays, failure to deliver, or misdirected delivery of any notice; for any errors in the content of a notice;or for any actions taken or not taken by you or any third party in reliance on a notice.
THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
14. Limitation of Liability
IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY: (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, EXTRAORDINARY, LIQUIDATED, OR CONSEQUENTIAL DAMAGES; (B) LOST PROFITS OR BUSINESS, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, TEMPORARY INTERUPTIONS IN SERVICES (INCLUDING IF WE ARE UNABLE TO COMPLETE A TRANSACTION), LOSS OF BUSINESS REPUTATION, LATE PENALTIES, LATE PAYMENTS, CANCELLATION OF THIRD PARTY CONTRACTS OR LOSS OF GOODWILL; OR (C) COSTS OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES; IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, THE SITE, THE SERVICES, YOUR ACCESS OR USE THE SITE AND SERVICES, OR ANY OF THE SUBMISSIONS, INFORMATION, DOCUMENTS, MATERIALS, OR DATA TRANSMITTED THROUGH THE SITE OR SERVICES OR RESIDING ON THE SITE, OR ANY ERRORS, DEFECTS, INTERRUPTIONS, DELETIONS, OR LOSSES RESULTING THEREFROM. UNLESS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, OUR LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO US$500.00. THE LIABILITIES LIMITED IN THIS PARAGRAPH APPLY: (I) WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE; (II) WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE; AND (III) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. YOU ACKNOWLEDGE THAT IF NO FEES HAVE BEEN PAID TO US IN CONNECTION WITH THESE TERMS OF SERVICE, YOU WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND WILL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM US, REGARDLESS OF THE CAUSE OF ACTION.
IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
We do not have any fiduciary or other special relationship to you or any of your stockholders or affiliates. We have not assumed an advisory or fiduciary responsibility in your favor or any of your stockholders or affiliates. You acknowledge and agree that you have consulted your own legal, tax and financial advisors to the extent you deem appropriate and that you are responsible for making your own independent judgment with respect to entering into these Terms of Service and the transactions and the process leading to it. We will rely on those acknowledgments in entering into these Terms of Service. You agree that you will not claim that we have rendered advisory services of any nature or respect, or we owe a fiduciary or similar duty to you.
15. Indemnification of Company
You, your successors and permitted assigns will defend, indemnify and hold harmless us, including our affiliates and our and their respective officers, directors, shareholders and employees, from and against all losses, claims, obligations, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, demands and expenses of whatever kind, including reasonable legal fees disbursements and the cost of enforcing our rights under the Terms of Service, in whole or in part arising out of, resulting from, or attributable to any actual or alleged breach of these Terms of Service by you, any of Your Content, your violation of any third party right, your access or use of a Third Party Service, your relationship with any third party, or your other access, contribution to, use of the Site and Services. We will provide notice to you of any such claim, suit or demand. We reserve the right to assume the exclusive defense and control of any matter which is subject to the obligations under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
16. Governing Law; Forum; Jury Trial Waiver; Class Action Waiver
These Terms of Service, and your relationship with the Company under these Terms of Service, is be governed by, and will be construed in accordance with, the internal laws of the State of Delaware without regard to principles of conflict of laws. You agree to submit to the exclusive jurisdiction of any state or federal court sitting in New Castle County, Delaware for any and all disputes asserting a breach of these Terms of Service. You understand that, in return for agreement to these provisions, the Company is able to offer the Service at the terms designated, and that your assent to these provisions is an indispensable consideration to these Terms of Service. The forum selection provision does not apply to any arbitration proceeding.
YOU WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO, THESE TERMS OF SERVICE, THE TRANSACTIONS CONTEMPLATED BY THESE TERMS OF SERVICE, OR THE ENFORCEMENT OF THESE TERMS OF SERVICE, EXCEPT TO THE EXTENT SUCH WAIVER IS PROHIBITED BY LAW. YOU ACKNOWLEDGE THAT YOU MAKE THIS WAIVER KNOWINGLY, WILLINGLY, VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER BEING PROVIDED WITH THE OPPORTUNITY TO CONSIDER THE RAMIFICATIONS OF THIS WAIVER WITH YOUR LEGAL REPRESENTATION (INCLUDING ATTORNEYS).
YOU WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE COMPANY, ITS PARENT COMPANIES, AFFILIATES, SUBSIDIARIES, PREDECESSORS, SUCCESSORS, ASSIGNS, AGENTS, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS OR REPRESENTATIVES, AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OR IN ANY OTHER REPRESENTATIVE ACTION, EXCEPT TO THE EXTENT SUCH WAIVER IS PROHIBITED BY LAW. TO THE EXTENT THIS PROVISION ALLOWS YOU TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE COMPANY, YOU AGREE THAT THE PREVAILING PARTY WILL NOT BE ENTITLED TO RECOVER LEGAL FEES AND DISBURSEMENTS OR ANY OF THE COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS OF SERVICE).
YOU AND THE COMPANY AGREE THAT, ABSENT A WRITTEN AGREEMENT BETWEEN THE PARTIES ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST BE FILED WITHIN ONE MONTH AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
If either party requests to arbitrate any Claim (defined below) before an answer or dispositive motion is filed in a proceeding that arises out of or relates to these Terms of Service, the other party agrees to arbitrate such Claim. The party making the request (the “requesting party”) must commence an arbitration proceeding within thirty (30) days of its request with either the Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”). The parties agree that any such arbitration proceeding will take place in Wilmington, Delaware and hereby waive any objection that such venue is an inconvenient forum. The arbitration proceeding will be governed by the rules and procedures for commercial disputes of the arbitration organization to which the Claim is referred. Streamlined arbitration rules and procedures will be used if available. If for any reason the selected arbitration organization cannot, will not, or ceases to, serve as an arbitration administrator, the requesting party may substitute the other organization identified in this paragraph or another widely recognized arbitration organization that uses similar rules or procedures and is mutually acceptable to both parties. In the event of a substitution where the parties cannot agree on an arbitration organization, then either party may ask a court of competent jurisdiction to appoint a qualified arbitration organization.
For purposes of this arbitration provision, “Claim” means any claim, dispute or controversy (whether in contract, tort, or otherwise) past, present or future. The term “Claim” is to be given the broadest possible meaning and includes any Claim arising from or relating to (a) your offer for sale and our acceptance for purchase of future receivables, (b) any transactions effected pursuant to these Terms of Service, (c) provisions of, or change of, or addition of, provisions to these Terms of Service, (d) collection of your obligations arising from these Terms of Service, (e) advertisements, promotions or oral or written statements relating to these Terms of Service or any transactions between you and us pursuant to these Terms of Service, including any Claim regarding information obtained by us from, or reported by us to, credit reporting agencies or others, (f) disputes between you and us or our parent companies, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, contractors, employees, officers, directors or representatives arising from any transaction between you and us pursuant to these Terms of Service, (g) disputes regarding the validity, enforceability or scope of this arbitration provision or these Terms of Service, or (h) these Terms of Service.
YOU MAY OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS OF THE DATE YOU AGREE TO THESE TERMS OF SERVICE BY SENDING NOTICE OF YOUR DECISION TO OPT-OUT, ALONG WITH YOUR NAME, PHONE NUMBER, EMAIL ADDRESS AND MAILING ADDRESS, TO [email protected] OR CLEARCO 548 MARKET ST #68100, SAN FRANCISCO, CA, 94104.
IF ARBITRATION IS COMMENCED, YOU ACKNOWLEDGE THAT NEITHER YOU NOR WE WILL HAVE THE RIGHT TO (I) HAVE A COURT OR JURY DECIDE THE CLAIM BEING ARBITRATED, (II) ENGAGE IN PRE-ARBITRATION DISCOVERY (THAT IS, THE RIGHT TO OBTAIN INFORMATION FROM THE OTHER PARTY) TO THE SAME EXTENT THAT YOU OR WE COULD IN COURT, (III) PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS IN A CLASS ACTION, OR REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, RELATING TO ANY CLAIM SUBJECT TO ARBITRATION OR (iv) JOIN OR CONSOLIDATE CLAIMS OTHER THAN YOUR OWN OR OUR OWN. OTHER RIGHTS AVAILABLE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. IF A CLAIM IS BROUGHT SEEKING PUBLIC INJUNCTIVE RELIEF AND A COURT DETERMINES THAT THE RESTRICTIONS IN THIS SECTION AND/OR THE SECTION TITLED “CLASS ACTION WAIVER” ARE UNENFORCEABLE WITH RESPECT TO THAT CLAIM (AND THAT DETERMINATION BECOMES FINAL AFTER ALL APPEALS HAVE BEEN EXHAUSTED), THE CLAIM FOR PUBLIC INJUNCTIVE RELIEF WILL BE LITIGATED IN COURT AND ANY INDIVIDUAL CLAIMS SEEKING MONETARY RELIEF WILL BE ARBITRATED. IN SUCH A CASE THE PARTIES WILL REQUEST THAT THE COURT STAY THE CLAIM FOR PUBLIC INJUNCTIVE RELIEF UNTIL THE ARBITRATION AWARD PERTAINING TO INDIVIDUAL RELIEF HAS BEEN ENTERED IN COURT. IN NO EVENT WILL A CLAIM FOR PUBLIC INJUNCTIVE RELIEF BE ARBITRATED.
Except as set forth below, the arbitrator’s decision will be final and binding. Only a court may decide the validity of items (iii) and (iv) in the preceding paragraph. If a court finally holds that items (iii) or (iv) are limited, invalid or unenforceable, then this entire arbitration provision will be null and void. You or we can appeal any such holding. If a court holds that any other part of this arbitration provision (other than items (iii) and (iv)) are invalid, then the remaining parts of this arbitration provision will remain in force. An arbitrator will decide all other issues pertaining to arbitrability, validity, interpretation and enforceability of this arbitration provision. The decision of an arbitrator is as enforceable as any court order and may be subject to very limited review by a court. An arbitrator may decide a Claim upon the submission of documents alone. A party may request a telephonic hearing if permitted by applicable rules and each party hereby consents to the other party participating by telephone. The exchange of non-privileged information relevant to the Claim between the parties is permitted and encouraged. Either party may submit relevant information, documents or exhibits to the arbitrator for consideration in deciding a Claim. Unless both you and we otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and we each retain the right to bring an individual action in a small claims court having jurisdiction over claims not exceeding US$10,000 and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
For a copy of relevant rules and procedure, to file a Claim or for other information about JAMS and AAA, write them, visit their website or call them at: (A) for JAMS, 1920 Main Street, Suite 300, Irvine, CA 92614, [email protected] , http://www.jamsadr.com , or 1-800-352-5267; or (B) for AAA, 1633 Broadway, 10th Floor, New York, NY 10019 [email protected] , http://www.adr.org , or 1-800-778-7879.
If your claim does not exceed US$10,000, then any arbitration will be conducted solely on the basis of documents you and we submit to the arbitrator, unless you request a hearing and the arbitrator determines that a hearing is necessary. If your claim exceeds US$10,000, your right to a hearing will be determined by the rules of the selected arbitration organization.
If either party fails to submit to arbitration following a proper demand to do so, that party will bear the costs and expenses, including reasonable legal fees and disbursements, incurred by the party compelling arbitration. The party initiating the arbitration will pay the filing fee. You may seek a waiver of the initial filing fee or any other fees incurred in arbitration. IF YOU BELIEVE YOU CANNOT PAY OR YOU WILL NOT BE ABLE TO PAY THE FILING FEE OR OTHER FEES REQUIRED TO INITIATE ARBITRATION, NOW OR IN THE FUTURE, WE RECOMMEND YOU OPT-OUT OF THIS ARBITRATION PROVISION IN THE MANNER DESCRIBED ABOVE.
Except in the situation in which either party fails to submit to arbitration following a proper demand to do so, each party will pay for its respective legal representation (including attorneys), experts’ and witness fees, regardless of which party prevails in the arbitration. A party may recover any or all expenses from the other party if the arbitrator, applying applicable law, so determines. Allocation of fees and costs relating to appeals in arbitration will be handled in the same manner. For an explanation and schedule of the fees that apply to an arbitration proceeding, please contact the organizations at the addresses above. The appropriate fee schedule in effect from time to time is incorporated by reference into this arbitration provision. The cost of arbitration may be higher or lower than the cost of bringing a Claim in court, depending upon the nature of the Claim and how the arbitration proceeds. Having more than one Claim and holding face-to-face hearings can increase the cost of arbitration. Again, neither you nor we will be permitted to arbitrate claims other than an individual basis. An arbitration proceeding can decide only your or our Claims. You cannot join other parties (or consolidate Claims).
This arbitration provision is made pursuant to a transaction involving interstate commerce, and will be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., as amended, notwithstanding any other governing law provision in these Terms of Service. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law. Judgment upon any arbitration award may be entered and enforced, including by garnishment, attachment, foreclosure or other post-judgment remedies, in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA, in which case any party can appeal the award to a three-arbitrator panel administered by the selected arbitration administrator. The panel will reconsider de novo (that is, without deference to the ruling of the original arbitration) any aspect of the initial award requested by the appealing party.
This arbitration provision will continue to govern any Claim that may arise without regard to any termination or expiration of these Terms of Service. If any portion of this arbitration provision (other than the provisions prohibiting class-wide arbitration, joinder or consolidation) is deemed invalid or unenforceable under the FAA, it will not invalidate the remaining portions of this arbitration provision. If a conflict or inconsistency arises between the rules and procedures of the selected arbitration administrator and this arbitration provision, this arbitration provision will control.
18. Error Resolution
If you believe that there has been an error made on your account, contact us by emailing [email protected]
We must hear from you within one (1) business day of us sending you a receipt.
Your inquiry must include:
If you tell us orally, we may require that you send us your inquiry via email within ten (10) business days.
If any portion of these Terms of Service is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, these Terms of Service as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of these Terms of Service that is unlawful, void or unenforceable shall be stricken from these Terms of Service.
No delay on our part in exercising any right or remedy under these Terms of Service will operate as a waiver, nor will any single or partial exercise of any right or remedy under these Terms of Service preclude any other or further exercise of any other right or remedy.
All of our rights and remedies in connection with these Terms of Service may be exercised at any time by us, are cumulative and not exclusive, and are in addition to any other rights and remedies available to us in law, equity or otherwise. All covenants, agreements, indemnifications, limitations on liability, representations and warranties made in these Terms of Service shall survive your acceptance of these Terms of Service and the termination of these Terms of Service.
You may not assign this Terms of Service without the prior written consent of the Company, but the Company may assign or transfer this Terms of Service, in whole or in part, without restriction.
These Terms of Service (which hereby incorporate by reference any other provisions applicable to the access and use of any Site or Service) constitute the entire agreement and understanding between you and us and supersedes all prior agreements and understandings, whether oral or in writing, concerning the Site and Services.