ACCEPTANCE OF AGREEMENT
PLEASE BE AWARE THAT THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION (SECTION 13.3) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
DEFINITIONS AND INTERPRETATION
Defined Terms. Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:
“Account Information” means information about accounts you maintain at third party websites, including, as applicable, your accounts at any financial institution, as provided by you to AFG.
“Affiliate” means, with respect to a party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly controls, is controlled with or by or is under common control with such party.
“Applicable Law” means all federal and state laws, excluding the Controlled Substance Act, 21 U.S.C. § 801, et. seq, applicable to the activities and obligations contemplated under this Agreement, including without limitation all applicable state licensing, consumer credit and privacy laws, as the same may be amended and in effect from time to time during the Term.
“Business Day” means any day (other than a Saturday, Sunday or legal holiday) on which federally-insured financial institutions in the State of Delaware are permitted to be open to conduct substantially all of their business.
“Profile Information” means the information you provide to us to register for the Service, including as applicable, business name and address, amount and intended purpose of funding sought, certain financial information regarding the business, and certain information regarding the business owner, as well as the username and password that allow you to access the Service, as such information shall change from time to time.
Interpretation. References to Sections and Appendices are to be construed as references to the Sections of, and Appendices to, this Agreement, unless otherwise indicated. The singular includes the plural, and the plural includes the singular. All references to hereof, herein, hereunder and other similar compounds of the word here shall mean and refer to this Agreement as a whole rather than any particular part of the same. The terms include and including are not limiting. Unless designated as Business Days, all references to days shall mean calendar days. The use of the word “including” in this Agreement 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 list of the topics covered. The headings, captions, headers, footers and version numbers contained in this Agreement are intended for convenience or reference and shall not affect the meaning or interpretation of this Agreement.
Purpose of the Website. The Website is provided for the purpose of connecting borrowers looking for financing options for their cannabis businesses with lenders, lenders with borrowers, and sometimes lenders with other lenders. In providing the Service, the Company does not make determinations about borrower eligibility for any lender or loan product, and disclaims all liability, warranties, or representation to the same.
Use of the Website. The Company grants you a non-exclusive license to access and use the Website and the data, material, content, or information herein (collectively, the “Content”) solely for your personal use. Your right to access and use the Website shall be limited to the purposes described in these Terms unless you are otherwise expressly authorized by the Company to use the Website for your own commercial purposes. You agree to use the Website only for lawful purposes, comply with all rules governing any transactions on and through the Website and comply with applicable laws.
You may create an account on the Website to use the Service. When you, as a user, submit a new project on the Website, there is a review period (“Review Period”) which may take up to five (5) business days before lenders can review your project. This allows the Company to verify your project information and ensure compliance with our policies. After the Review Period, Lenders, at their sole discretion, will be able to review your project and determine if loans are available.
Relationship of Parties and Roles. In creating a user account and profile, you acknowledge, accept and agree to the following:
Company uses its proprietary technology and capabilities to provide the Service to borrowers.
Some of the Company owners also own entities that manage the Alta Real Estate Fund, in which this fund may provide loans to borrowers at competing terms as part of the Service.
Other than these limited ownership relationships with Alta Real Estate Fund, the Company is not a subsidiary, affiliate, independent contractor or employee of any borrower or lender.
Company is not a “consumer reporting agency” as that term is defined under the Fair Credit Reporting Act. No part of the Service involves the use of consumer reports or background checks.
Company makes no eligibility determinations about any borrower for financing options provided by lenders.
COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS THAT ANY BORROWER WILL BE SELECTED BY A LENDER TO RECEIVE ANY LOAN OR FINANCING OPTION.
EACH LENDER IS SOLELY RESPONSIBLE FOR MAKING ALL ELIGIBILITY DETERMINATIONS REGARDING A PARTICULAR BORROWER TO WHICH IT PROVIDES A TERMS SHEET.
EACH BORROWER IS SOLELY RESPONSIBLE FOR ITS CHOICES OF LENDER AND EXECUTING THE NECESSARY REQUIREMENTS TO SECURE SUCH FUNDING.
Although we facilitate the matching of borrowers with qualified lenders, we are not a financial institution and therefore not subject to the requirements of the Gramm Leach Bliley Act (the “GLBA”) in the operation of this Website.
User Account Responsibility. If you are given or create a password to access the Website, you are responsible for maintaining the confidentiality of your account and your password. You are responsible for all activities that occur under your account, and you agree to notify the Company immediately of any suspected unauthorized use of your account. The Company is not responsible for any loss that you may incur as a result of any unauthorized person using your account or your password.
License. Subject to this Agreement, AFG grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Service solely for your own business purpose, and solely as permitted by and in compliance with the Terms and Applicable Law. Such limited license may be revoked at any time in AFG’s sole discretion.
Prohibitions and Restrictions
Prohibited Uses. You agree that you will not:
Use the Website in any manner that could damage, disable, overburden, or impair the Website or interfere with any other party’s use and enjoyment of it;
Attempt to gain unauthorized access to any Website account, computer systems or networks associated with the Company or the Website;
Obtain or attempt to obtain any materials or information through the Website by any means not intentionally made available or provided by the Company;
Use any robot, spider, or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website;
Introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful;
Attack the Website via a denial-of-service attack or a distributed denial-of-service attack; or
Impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing);
License, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part, or any content displayed on the Service;
Modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; or
Access the Service in order to build a similar or competitive website, product, or service.
Restrictions. Except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service shall be subject to this Agreement. All copyright and other proprietary notices on the Service (or on any content displayed on the Service) must be retained on all copies thereof. You will not use the Website or Service for any illegal purpose.
Modification. AFG reserves the right, at any time, to modify, suspend, or discontinue the Website (in whole or in part) with or without notice to you. You agree that AFG will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Website or any part thereof.
No Support or Maintenance. You acknowledge and agree that AFG will have no obligation to provide you with any support or maintenance in connection with the Website or Services.
Affiliates. The rights, duties and/or obligations of AFG under this Agreement may be exercised and/or performed by AFG and/or any of AFG’s Affiliates, or any of their subcontractors and/or agents. AFG acknowledges and agrees that it shall be solely responsible for the acts or omissions of AFG’s Affiliates, and any subcontractor or agent of AFG or any of AFG’s Affiliates, related to the subject matter hereof. You agree that any claim or action arising out of or related to any act or omission of any of AFG or AFG’s Affiliates, or any of their respective subcontractors or agents, related to the subject matter hereof, shall only be brought against AFG, and not against any of AFG’s Affiliates, or any subcontractor or agent of AFG or any of AFG’s Affiliates. You acknowledge that under no circumstances shall a lender be considered an Affiliate for purposes of this Agreement.
6. ACCOUNT; ACCURACY OF AND CHANGES TO YOUR INFORMATION
6.1 Account Creation. In order to use certain features of the Service, you must register for an account (“Account”) and provide certain information about yourself. You agree to provide accurate Profile Information and Account Information. You further agree to promptly update all your Profile Information or Account Information whenever the information provided to us is no longer accurate. You can update your information by visiting your profile page on the Service. You may delete your Account at any time, for any reason, by following the instructions on the Service. If you need help in changing your information, please email us at firstname.lastname@example.org. We are not responsible for any payment processing errors or fees or other Service-related issues arising from your failure to keep your Profile Information current. If we determine, in our sole discretion, that you have failed to maintain current and accurate Profile Information or Account Information, we may suspend or terminate your access to the Sites and Service.
6.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and all activities that occur under your Account. You agree to immediately notify AFG of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. AFG cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
6.3 Our Use of the Account Information. You authorize us to use the Account Information for all purposes related to the Service, and to have continued access to your financial institution, provided that such access shall be used solely for the purpose of providing the Service to you. Account Information shall remain available to you during the Term.
7. DISCLOSURE AND CONSENT TO ELECTRONIC COMMUNICATIONS.
7.1 Consent to Electronic Communications. You understand and agree that you are entering into this E-Sign Consent Agreement electronically and you specifically agree to receive and/or obtain certain categories of information (“Communications”) from AFG by electronic means (i.e., via email, through the Service by displaying links to notices generally on the Service, 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:
- disclosures or notices provided in connection with the Service, including any required by Applicable Law (including initial disclosures, initial and annual privacy notices, opt-out notices, and change-in-terms notices);any customer service communications, including communications with respect to claims of error or unauthorized use of the Sites or Service; and
- any other communication related to the Sites or Service.
Although AFG reserves the right to provide Communications in paper format at any time, you agree that AFG is 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 this E-Sign Agreement and any Communication that is important to you and retain the copy for your records. If you do not wish to receive this E-Sign Agreement or the Communications electronically, you may not use the Sites or Service.
Not all mobile devices or handsets may be supported by this messaging service. The Company and any mobile carriers are not liable for delayed or undelivered messages. Message and data rates may apply to any text messages. Message frequency depends on the nature of your request. You hereby agree to be responsible for all costs, charges and fees you incur from your mobile service or device provider as a result of choosing to receive such messages from the Company.
7.3 Timing of Communications. Any electronic Communications will be deemed to have been received by you no later than 5 Business Days after AFG sends it to you by email or posts it on the Service, whether or not you have received the email or retrieved the Communication from the Service. An electronic Communication by email is considered to be sent at the time that it is directed by AFG’s email server to your email address. You agree that these are reasonable procedures for sending and receiving electronic Communications.
7.4 Updated Contact Information. You agree to promptly update your Profile Information if your email address changes so that AFG may contact you electronically. You may update your Profile Information, such as your email address, as described in the “Account; Accuracy of and Changes to Your Information” section. You understand and agree that if AFG sends you an electronic Communication but you do not receive it because the email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, AFG will be deemed to have provided the Communication to you.
7.5 System Specifications. In order to access, view, and retain electronic Communications that AFG makes available to you, you must have access to: (a) a computer with an Internet connection; (b) a current web browser that includes 128-bit encryption (e.g. Internet Explorer version 6.0 and above, Firefox version 2.0 and above, Chrome version 3.0 and above, or Safari 3.0 and above) with cookies enabled; (c) Adobe Acrobat Reader version 8.0 and above to open documents in.pdf format; (d) sufficient electronic storage capacity on your computer’s hard drive or other data storage unit to save past Communications and/or an installed printer to print them; and (e) an email account with an Internet service provider and email software. Your access to this page through your device verifies that your device meets these requirements.
7.6 Withdrawal of Consent to Electronic Communications. If you have registered as a user with AFG and you wish to withdraw your consent to have Communications provided electronically, you must deregister by contacting email@example.com and stop using the Sites and Service. There are no fees to deregister with AFG. Any withdrawal of your consent to receive electronic Communications will be effective only after AFG has a reasonable period of time to process your withdrawal, which period of time shall be no longer than fifteen (15) days, or such other time as is appropriate under the circumstances, as determined by AFG in its sole discretion.
7.7 Reservation of Rights. AFG reserves the right, in its sole discretion, to discontinue the provision of your electronic Communications, or to terminate or change the terms and conditions on which AFG provides electronic Communications. AFG will provide you with notice of any such termination or change as required by Applicable Law.
8. THIRD-PARTY LINKS, PRODUCTS AND APPLICATIONS
8.2 Third-party Applications. You acknowledge that your access and use of any third-party applications or software on our Website and Content, such as Know Your Customer “KYC” or Know Your Business “KYB” verification software (the “Third-Party Applications”), is at your discretion and risk, and the Company has no liability to you arising from your use of the Third-Party Applications. The Company hereby disclaims any representation, warranty, or guaranty regarding the Third-Party Applications, whether expressed, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty, or guaranty regarding the availability, quality, reliability, features, appropriateness, accuracy, completeness, or legality of the Third-Party Applications, and you agree to indemnify and hold the Company harmless for any direct, indirect, punitive, incidental, special, or consequential damages, or any damages whatsoever including, without limitation, damages for loss of use, arising out of or in any way connected with the use or performance of the Third-Party Applications.
8.3 Release. You hereby release and forever discharge AFG (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, our partners or any other third party or any Third-party Links and Applications). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
9. INTELLECTUAL PROPERTY
9.1 Intellectual Property Notices. The Website and Content are protected by copyrights, trademarks, or are subject to other proprietary rights. Accordingly, you are not permitted to use the Website or Content in any manner, except as expressly permitted by the Company in these Terms. The Website or Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivatives without the express written consent of the Company or the applicable owner.
9.2 Your Content. Any Content you create or own or to which you have a license and use on the Website is Your Content. In sharing Your Content on the Website, you warrant and represent you have the legal right to use Your Content and grant the Company an irrevocable, royalty-free, fully paid up, worldwide, non-exclusive license to use Your Content in providing any Service as described in these Terms and in any posted policies on the Website. The Company may edit or fix any errors found in Your Content that you share on the Website, such as fixing an obvious mistake like listing the incorrect state of incorporation for your company. The Website may also provide you with features like photo thumbnails, previews, easy sorting, editing, sharing, creating templates, and searching. These and other features may require our Company systems to access, store, and scan Your Content. You may also be able to share Your Content with others, so please think carefully about what you share.
You acknowledge and agree that you are solely responsible for complying with the applicable restrictions on use of all Content, copyrighted materials and trademarks that you see, hear, and use on the Website. You understand that any unauthorized use of such intellectual property would result in irreparable injury for which money damages would be inadequate.
You further acknowledge that, in the event of any such unauthorized use, the Company or the applicable intellectual property owner will have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief to prevent any such unauthorized use.
Questions regarding the use of any intellectual property provided on the Website should be directed to Jesse Zesbaugh, Chief Information Officer, firstname.lastname@example.org.
9.3 Digital Millennium Copyright Act Compliance
9.3.1 Notification. We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Website or Service infringes your copyright, you may request removal of those materials (or access to them) from the Website by submitting written notification to our copyright agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works from the Service;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material;
- information reasonably sufficient to permit the Company to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- a statement that the information in the notification is accurate; and
- under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Upon removing any allegedly infringing material, the Company will notify the alleged infringer of such takedown.
- Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
9.3.2 Counter Notification. If you elect to send our copyright agent a counter notice, to be effective it must be a written communication that includes the following (please consult your legal counsel or See 17 U.S.C. Section 512(g)(3) to confirm these requirements):
- a physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- adequate information by which we can contact you, including your name, address, and telephone number; and
- a statement that the subscriber consents to the jurisdiction of a federal district court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the Company may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten (10) business days of receiving the copy of your counter notice. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
The Company’s authorized official to receive notifications and counter-notifications of claimed infringement is:
Jesse Zesbaugh, Chief Information Officer
A summary of the DMCA can be obtained from the U.S. Copyright Office.
You agree to release, indemnify, and hold harmless AFG and its Affiliates, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way related to: (a) your access to, use of, or inability to use the Sites or Service; (b) your breach of this Agreement; (c) your violation of any rights of a third party; (d) your interaction with any lender; (e) any duties, responsibilities, or obligations you may have to a lender; (f) your violation of any Applicable Law; (g) the violation of any Applicable Law by a lender; (h) any harm to your business suffered as a result of obtaining or not obtaining a loan; or (i) your failure to provide and maintain true, accurate, current and complete Application Information, Profile Information, Verified Data, and Account Information.
11. LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER
11.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL AFG (OR OUR AFFILIATES) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE WEBSITE OR THE DATA, CONTENT OR INFORMATION ACCESSED VIA THE WEBSITE OR ANY HYPERLINKED WEBSITE, OR ANY DISRUPTION OR DELAY IN THE PERFORMANCE OF THE WEBSITE, OR THE SERVICE EVEN IF AFG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITES OR SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THE SERVICE OR THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM YOUR FAILURE TO PROVIDE AFG WITH ACCURATE INFORMATION OR TO CORRECT INACCURATE VERIFIED DATA, OR A THIRD PARTY’S FAILURE TO CORRECTLY VERIFY SUCH INFORMATION, AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF ONE HUNDRED US DOLLARS (U.S. $100). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
11.2 No Warranties. ALL INFORMATION OR SERVICES PROVIDED BY THE COMPANY TO YOU VIA THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY AND ANY THIRD-PARTY LICENSORS WITH CONTENT ON THE WEBSITE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, THE COMPANY AND ITS THIRD-PARTY LICENSORS MAKE NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, QUALITY, SUITABILITY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY OR AVAILABILITY OF THE WEBSITE OR ANY CONTENT POSTED ON OR OTHERWISE ACCESSIBLE VIA THE WEBSITE. YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY AND ITS THIRD-PARTY LICENSORS ARE NOT LIABLE FOR THE DEFAMATORY, OBSCENE OR UNLAWFUL CONDUCT OF OTHER THIRD PARTIES OR USERS OF THE WEBSITE AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. NEITHER THE COMPANY NOR ANY OF ITS THIRD-PARTY LICENSORS REPRESENT, WARRANT OR COVENANT THAT THE WEBSITE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. THE COMPANY FURTHER MAKES NO WARRANTY THAT THE WEBSITE WILL BE FREE OF VIRUSES, WORMS OR TROJAN HORSES OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SOFTWARE. YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT THE COMPANY, ITS AFFILIATES AND THEIR THIRD-PARTY LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY TERMINATION, INTERRUPTION OF SERVICES, DELAYS, ERRORS, FAILURES OF PERFORMANCE, DEFECTS, LINE FAILURES, OR OMISSIONS ASSOCIATED WITH THE WEBSITE OR YOUR USE THEREOF. YOUR SOLE REMEDY AGAINST THE COMPANY FOR DISSATISFACTION WITH THE WEBSITE OR THE CONTENT IS TO CEASE YOUR USE OF THE WEBSITE AND/OR THE CONTENT. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION. WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, YOU AGREE THAT THEY WILL BE LIMITED TO THE GREATEST EXTENT AND SHORTEST DURATION PERMITTED BY LAW.
COMPANY IS NOT A CONSUMER REPORTING AGENCY, DOES NOT COMPILE CONSUMER REPORTS, DOES NOT MAKE ELIGIBILITY DETERMINATIONS FOR ANY BORROWERS AND IS NOT SUBJECT TO THE FAIR CREDIT REPORTING ACT IN PROVIDING THE SERVICE.
11.3 Not a financial planner, investment adviser or tax advisor. NEITHER AFG NOR THE SERVICES ARE INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT OR FINANCIAL ADVICE. AFG IS NOT A FINANCIAL OR TAX PLANNER AND DOES NOT OFFER LEGAL ADVICE TO ANY USER OF THE SERVICE. ALTHOUGH THE SERVICE MAY PROVIDE DATA, INFORMATION, OR CONTENT RELATING TO INFORMATIONAL SERVICES FOR U.S. BASED SMALL BUSINESS OWNERS INCLUDING INFORMATION AND REFERRALS FOR CERTAIN FINANCIAL SERVICES, YOU SHOULD NOT CONSTRUE ANY SUCH CONTENT AS TAX, LEGAL, FINANCIAL, OR INVESTMENT ADVICE.
11.4 Beta Version Disclaimer. IN ADDITION TO THE DISCLAIMERS AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU ARE BEING GIVEN ACCESS TO A “BETA” VERSION OF THE WEBSITE AS PART OF THE BETA TESTING OF THE WEBSITE AND THE SERVICE BY COMPANY. BETA TESTING MEANS THAT A NON-FINAL VERSION OF A PRODUCT AND/OR SERVICE IS PROVIDED TO USERS OUTSIDE THE COMPANY DEVELOPING IT SO THAT IT CAN BE TESTED PRIOR TO COMMERCIAL RELEASE. THE BETA PRODUCT MAY RESEMBLE A FINISHED PRODUCT OR SERVICE, BUT IT IS STILL BEING DESIGNED, IMPLEMENTED, AND REFINED AS YOU USE IT. ACCORDINGLY, THE RISKS OF FAILURE ARE HEIGHTENED, AND THE WEBSITE AND THE SERVICE MAY NOT PERFORM AS INTENDED, OR AT ALL. BY PARTICIPATING IN THE BETA TESTING OF THE WEBSITE AND THE SERVICE YOU UNDERSTAND THAT NEITHER HAVE BEEN FULLY DEVELOPED OR USED BY ANYONE AND YOU HOLD AFG HARMLESS AND FOREVER RELEASE ALL CLAIMS AGAINST AFG FOR YOUR USE OF THE SERVICE. MOREOVER, THE LAWS AND REGULATIONS PERTAINING TO THE SERVICE ARE NOT SETTLED AND AFG MAY NOT HAVE ALL THE RELEVANT LICENSES AND/OR NECESSARY APPROVALS TO PROVIDE THE SERVICE IN A COMPLIANT MANNER. YOU UNDERSTAND THE RISKS INVOLVED AND BARE ALL RESPONSIBILITY FOR YOUR INVOLVEMENT IN THE BETA AND USE OF THE SERVICE. ACCORDINGLY, YOU AGREE TO HOLD AFG HARMLESS AND COVENANT NOT TO SUE, FOR ANY REASON WHATSOEVER, TO THE FULLEST EXTENT OF THE LAW.
12. TERM AND TERMINATION
Subject to this Section, this Agreement will remain in full force and effect while you use the Sites or use the Service (the “Term”). We may suspend or terminate your rights to use the Sites or use the Service at any time for any reason at our sole discretion, including for any use of the Sites or the Service in violation of this Agreement. You may terminate this Agreement at any time by ending your use of the Sites and the Service and notifying AFG at email@example.com. Upon termination of your rights under this Agreement, your right to access and use the Sites and the Service will terminate immediately. AFG will not have any liability whatsoever to you for any termination of your rights under this Agreement. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13. GENERAL TERMS
13.2 Waiver. The waiver by AFG of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.
13.3 Governing Law & Jurisdiction. These Terms are governed by the laws of the State of Colorado, U.S.A. You hereby irrevocably consent to the exclusive jurisdiction and venue of the courts in the City and County of Denver, Colorado U.S.A. in all disputes arising out of or relating to the use of the Website.
13.4 Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with AFG and limits the manner in which you can seek relief from us. It is part of your contract with AFG and affects your rights. It contains procedures of MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
13.4.1 Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement or the use of any product or service provided by AFG that cannot be resolved informally shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and AFG, and to any subsidiaries, Affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement. This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
13.4.2 Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to AFG should be sent to: firstname.lastname@example.org. After the Notice is received, you and AFG may attempt to resolve the claim or dispute informally. If you and AFG do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
13.4.3 Arbitration Procedure. Arbitration shall be held in Denver, Colorado, and will be governed exclusively by the Colorado Revised Uniform Arbitration Act, C.R.S. §§ 13-22-201, et seq. (the “CRUAA”). The arbitrator will be selected from the roster of arbitrators at Judicial Arbiter Group, Inc. in Denver, Colorado (“JAG”), unless the Parties agree otherwise. If the Parties do not agree on the selection of a single arbitrator within ten (10) days after a demand for arbitration is made, then the arbitrator will be selected by JAG from among its available professionals. Arbitration of all disputes and the outcome of the arbitration will remain confidential between the Parties except as necessary to obtain a court judgment on the award or other relief or to engage in collection of the judgment.
The Parties irrevocably submit to the exclusive jurisdiction of the state courts located in Denver, Colorado, with respect to this section to compel arbitration, to confirm an arbitration award or order, or to handle court functions permitted under the CRUAA. The Parties irrevocably waive defense of an inconvenient forum to the maintenance of any such action or other proceeding. The Parties may seek recognition and enforcement of any state court judgment confirming an arbitration award or order in any United States state court or any court outside the United States or its territories having jurisdiction with respect to recognition or enforcement of such judgment.
This provision for arbitration will not preclude a party from seeking temporary or preliminary injunctive relief (“Provisional Relief”) in a court of law while arbitration proceedings are pending in order to protect its rights pending a final determination by the arbitrator, nor will the filing of such an action for Provisional Relief constitute waiver by a party of its right to seek arbitration. Any Provisional Relief granted by such court will remain effective until otherwise modified by the arbitrator.
13.4.4 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and AFG in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND AFG WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
13.4.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
13.4.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: email@example.com within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your AFG username, the email address you used to set up your AFG account, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.4.7 Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
13.4.8 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
13.4.9 Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
13.4.10 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with AFG.
13.4.11 Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
13.4.12 Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secrets shall not be subject to this Arbitration Agreement.
13.4.13 Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the state courts located in the City and County of Denver, for such purpose.
13.5 Third Party Beneficiaries. Except as limited by Section 13.7, this Agreement and the rights and obligations hereunder shall bind and inure to the benefit of the parties and their successors and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties and their successors and permitted assigns, any of the rights hereunder.
13.6 Entire Agreement. This Agreement and each of its exhibits or appendices, constitute and contain the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.
13.7 Severability. If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement.
13.8 Assignment. You may not assign or transfer any rights hereunder without the prior written consent of AFG. Except as provided in this section, any attempts you make to assign any of your rights or delegate any of your duties hereunder without the prior written consent of AFG shall be null and void. AFG may assign this Agreement or any rights hereunder without consent.