(Effective May 2022)
You agree to use the Website subject to any additional terms and conditions applicable to You. If You are using and accessing the Website in Your capacity as an employee of and on behalf of a customer entity that has an agreement with Collective governing use of the Website, then Your access and use are also governed by the terms of that agreement. In the event that a conflict exists between a term in these TOU and a term in that other agreement (such as limitations of liability or dispute resolution provisions), the terms in the other agreement control. If you are an Exchange Loan borrower and there is a conflict between the loan agreement and these TOU, the terms in the loan agreement control. For avoidance of doubt, if You are an individual accessing the Website in Your personal capacity as a participant as a buyer or exchanger or seller in the growth fund or the exchange fund or other applicable activity, Your access and use of the Website is governed by these TOU.
3. INFORMATION FROM THIRD PARTIES; THIRD PARTY LINKS
Third parties such as transaction counterparties, exchangers companies or issuers of securities may provide Collective information and/or documentation that is to be made available to You, including links to third party websites. Collective does not make enquiries into, does not endorse, warrant or guarantee, and is not responsible for, the accuracy, validity, legality, security, completeness or any other aspect of any such information, documentation or sites or any investment opportunities, products, or services available through them, or the information You provide to such third parties or provide to Collective to provide to such third parties. With regard to third parties and their websites, Collective is not responsible for the content, activities or policies (including privacy policies) of those third parties. You are responsible for evaluating whether You want to access or use all such information, documentation or sites. You assume all risk, and We disclaim all liability arising from Your use of or reliance on such information, documentation or sites, and for the manner in which such third parties treat information provided to them.
4. YOUR LOGIN CREDENTIALS
You may be issued with login credentials in order to access certain features of the Website. Your login credentials, together with any e-mail address, telephone number or other contact information You provide or that is provided on Your behalf, constitute Your “Registration Information.” You represent and warrant that the information You provide to Collective and at all other times will be true, accurate, current, and complete. If You do not keep such information accurate, the accuracy and effectiveness of the Website to You, and Collective’s ability to communicate with You, may be affected.
Collective will use the e-mail address that has been provided to Collective in order to communicate with You (e.g. to send You notices or transaction confirmations), and You hereby expressly consent that Collective may also contact You with communications related to Collective services and products.
You agree and understand that You are responsible for maintaining the confidentiality of Your login credentials. If You become aware of any loss, theft, compromise, or unauthorized use of Your login credentials, You agree to notify Collective immediately.
5. YOUR USE OF THE WEBSITE
Your right to access and use the Website is personal to You and is not transferable by You to any other person or entity. You agree that You will not access or use the Website in an unlawful or unauthorized manner. For example, You will not:
- Use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Website, without Collective’s express written consent, which may be withheld in Collective’s sole discretion;
- Use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Website, other than the search engines and search agents available through the Website and other than generally available third-party web browsers;
- Post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interferes with the proper working of the Website; or
- Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Website;
- Post or transmit any content which is libelous or defamatory, or which discloses private or personal matters concerning any person without their permission. You may not post or transmit any content that is indecent, obscene, pornographic, harassing, threatening, abusive, hateful, racially or ethnically offensive; that encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; or that is otherwise inappropriate;
- Post or transmit any content that would violate the property rights of others, including unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, and trademarks or service marks used in an infringing fashion;
- Copy or use personally identifying or business contact information about other users without their permission, or post or transmit any advertising, promotional materials or any other solicitation of other users to use goods or services except in areas explicitly designated for such purpose. Unsolicited emails, mailings, telephone calls, or other communications to individuals or companies whose contact details You obtain through the Website are prohibited;
- Interfere with other users’ use of the Website, including, without limitation, disrupting the normal flow of dialogue in an interactive area of the Website, deleting or revising any content posted by another person or entity, or taking any action that imposes a disproportionate burden on the Website infrastructure or that negatively affects the availability of the Website to others; or
- Circumvent the Website to execute one or more transactions off the Website where the counterparty to the transaction was sourced through the Website.
Your access to and use of the Website may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, technical issues, standard maintenance or security concerns, periodic updating, maintenance or repair of the Website or other actions that Collective, in its sole discretion, may elect to take. Collective may, but is not required to, provide advance notice of any service interruptions. Collective is not responsible or liable for any effect on You for such service interruptions. Collective cannot always foresee or anticipate technical or other difficulties that may result in failure to obtain data or loss of data, personalization settings or other service interruptions. Collective cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings. Collective retains the right at all times to make any changes in its respective systems that We may deem necessary or desirable.
These TOU govern, among other topics, confidentiality obligations regarding the information You may have access to via the Website, and in consideration of being granted continued access to the Website and to confidential information provided by Collective, private issuers of securities, exchangers or shareholders through Collective, including via the Website, You agree that such parties, as applicable, are third party beneficiaries with respect to the confidentiality obligations contained in the TOU and may enforce such confidentiality provisions directly against You. .
Further, except as provided herein, “Confidential Information” means information received or submitted pursuant to these TOU and other information regarding the business and affairs of You, Collective, and certain third parties as mentioned above. Collective and You agree to maintain the confidentiality of such Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances.
The party receiving the Confidential Information (“Receiving Party”) may disclose any portion of the Confidential Information to any persons or entities: (a) as required by any applicable law, rule or regulation; (b) as directed by the party disclosing such Confidential Information (the “Disclosing Party”) and as contemplated by the services and products associated with or provided through the Website, and the Receiving Party shall have no liability to the Disclosing Party or to any other person or entity for any damages as a result of breach of confidentiality by parties to whom Confidential Information is disclosed as directed by the Disclosing Party; and (c) to the following persons (each an “Associate”) provided that each Associate has been informed of the confidential nature of the Confidential Information and is bound by confidentiality obligations to Receiving Party which are materially equivalent to those in this Section:
- Employees, officers, and directors of the Receiving Party;
- Receiving Party’s Affiliates (as defined below) and the employees, officers, and directors of such Affiliates; or
- Any professional consultant, subcontractor, third party provider or agent retained or used by the Receiving Party or its Affiliate(s) or any legal or business advisor engaged to advise Receiving Party or its Affiliates in relation to its/their business.
The Receiving Party agrees that it will be liable for breach by any of its Associates of the confidentiality obligations in this Section. For purposes of these TOU, “Affiliate” means any corporation, partnership, limited liability company, joint venture or other entity that is directly or indirectly, through one or more intermediaries, controlled by, or under common control with, one of the parties hereto or its parent. For purposes of this definition, “Control” shall mean possession, directly or indirectly, of the power to direct or cause the direction of the management, policies and operations of an entity, whether through ownership of voting securities, by contract or otherwise. Once such relationship of control ceases, such entity shall no longer qualify as an Affiliate.
The restrictions set forth in this Section shall not apply to Confidential Information that (a) is or becomes publicly known other than by breach of these TOU by the Receiving Party, (b) was lawfully acquired from a third party by the Receiving Party prior to receipt from the Disclosing Party, (c) is subsequently lawfully obtained by the Receiving Party from a third party that is not under a known duty to hold such information confidential, or (d) is developed independently by the Receiving Party.
If You are required to disclose any Confidential Information pursuant to legal process, You will promptly so notify Collective, in order to permit Collective to seek a protective order or take other appropriate action. You will also exercise Your reasonable best efforts to cooperate in Collective’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded to the Confidential Information. Notwithstanding the foregoing or anything else in the TOU, Collective may disclose Confidential Information pursuant to a request or inspection by a governmental agency or regulatory authority with jurisdiction over Collective, including any of its Affiliates or subsidiaries, or in the course of fulfilling any of the regulatory responsibilities of Collective or its Affiliates or subsidiaries.
You agree that Collective may, at its sole discretion and to the extent permitted by law, access, read, preserve and disclose Your Credentials, usage history and any submitted content in order to: (a) comply with any applicable law, regulation, legal process, or governmental request; (b) respond to claims that any content violates the rights of third parties, including intellectual property rights; (c) enforce these TOUs and investigate potential violations thereof; (d) detect, prevent, or otherwise address fraud, security, or technical issues; (e) respond to Your requests for customer service; or (f) protect the rights, property, or personal safety of Collective, its users, or the public.
7. ONLINE AND MOBILE ALERTS
Collective may from time to time provide automatic alerts and voluntary Website-related alerts, or alerts related to Your activity on the Website. Automatic alerts may be sent to You following certain changes made online to Your data, such as a change in Your login credentials. You do not need to activate these alerts. Although You may have the option to turn off some of these automatic alerts, Collective recommends that You leave them on, since they may be security related.
Voluntary alerts may be turned on by default as part of the Website. Collective may add new alerts from time to time, or cease to provide certain alerts at any time in its sole discretion. Each alert may have different configuration options available, and You may be asked to select from among these options upon activation of Your alerts service. Any such electronic alerts will be sent to the e-mail address provided to Collective.
You understand and agree that any alerts provided to You through the Website may be delayed or prevented by a variety of factors. Collective will use all reasonable endeavors to provide alerts in a timely manner with accurate information but does not guarantee the delivery or the accuracy of the content of any alert.
8. RIGHTS YOU GRANT TO COLLECTIVE
You authorize Collective to use, free of any charge, any information, data, passwords, usernames, PINs, other log-in information, materials or other content (collectively, “Account Content”) You provide in connection with the Website for the purpose of providing and improving the Website and related services.
9. INTELLECTUAL PROPERTY RIGHTS OF COLLECTIVE
The Website’s “look and feel” (for example, the text, graphics, images, logos and button icons appearing on the website), photographs, editorial content, notices, software (including HTML-based computer programs) and other materials are protected under United States and other applicable copyright, trademark and other laws. The contents of the Website belong or are licensed to Collective or its software or content suppliers. Collective grants You the right to view and use the Website subject to these TOU. You may download or print a copy of information provided on the Website for use only for the purpose for which it was made available to You. Any distribution, reprint or electronic reproduction of any content from the Website, in whole or in part, for any other purpose is expressly prohibited without Collective’s prior written consent.
10. NOT A REGISTERED EXCHANGE, FINANCIAL PLANNER, INVESTMENT ADVISER OR TAX ADVISER. THE WEBSITE IS NOT INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT OR FINANCIAL ADVICE.
Collective is not:
- a registered exchange under the Securities Exchange Act of 1934,
- a registered investment adviser under the Investment Advisers Act of 1940, or
- a financial or tax planner, and does not offer legal advice to any user of the Website.
11. NOT AN OFFER TO BUY OR SELL
None of the information displayed on or downloadable from the Website represents an offer, or the solicitation of an offer, from Collective or any of its affiliated companies to buy or sell any security, nor does it constitute an offer from Collective or any of its affiliated companies to provide, or the actual provision of, investment or legal advice or services.
The Website may include forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 about securities of an issuer which are located on the Website. To the extent that statements on this website do not relate to historical or current facts, they constitute forward-looking statements. The words "outlook," "believes," "expects," "potential," "continues," "may," "will," "could," "should," "seeks," "approximately," "predicts," "intends," "plans," "estimates," "anticipates" and similar expressions are intended to identify forward-looking statements. These forward-looking statements are based on the current assumptions and beliefs of the applicable issuer in light of the information currently available to it, and involve known and unknown risks, uncertainties and other factors. Such risks, uncertainties and other factors may cause actual results, performance, achievements or financial position to be materially different from any future results, performance, achievements or financial position expressed or implied by these forward-looking statements. Collective undertakes no obligation to review, verify or update any forward-looking statements to reflect subsequently occurring events or circumstances or to reflect unanticipated events or developments.
Companies that may be referenced on the Website are privately-held companies. Shares of these privately-held companies do not trade on any national securities exchange, and there is no guarantee that the shares of these companies will ever be traded on any national securities exchange. Investing in private company securities is not suitable for all investors. An investment in private company securities is highly speculative and involves a high degree of risk and should only be considered a long-term investment. You must be prepared to withstand a total loss of your investment. Private company securities are also highly illiquid and there is no guarantee that a market will develop for such securities. All persons contemplating a purchase or sale of any securities should carefully evaluate the relevant issuer and should complete such purchase or sale only after conducting their own due diligence and independent analysis. All such persons are strongly advised to seek advice based on their particular circumstances from their own independent financial, tax, legal, accounting and other professional advisors. You acknowledge that it is Your responsibility to familiarize Yourself with terms and conditions of an opportunity disclosed via the Website, including the guidelines for submission and applicable fees.
Collective may earn fees in connection with its services that You access through the Website.
You acknowledge that counterparties to a transaction made available via the Website may currently possess or come to possess material, non-public information (“MNPI”) regarding the issuer or its securities which has not been disclosed to You, which MNPI may be indicative of a value of the securities that is substantially different than the price of the securities in the applicable offering, and You agree that You have experience in financial and business matters and understand the disadvantage to which You may be subject on account of the disparity of information among any of the potential parties to a transaction in securities.
12. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
“Released Parties” include Collective, WebBank, and their members, managers, officers, directors, employees, agents, partners, licensors, and service providers.
THE CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH OR PROVIDED THROUGH THE WEBSITE ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. THE RELEASED PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION OF THE WEBSITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK.
THE RELEASED PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT OF THE WEBSITE, WHETHER SUCH CONTENT IS PROVIDED BY THE RELEASED PARTIES, A USER OF THE WEBSITE, INCLUDING AN ISSUER OR TRANSACTION COUNTERPARTY, AND THE RELEASED PARTIES EXPRESSLY DISCLAIM INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. THE RELEASED PARTIES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE WEBSITE IS FREE OF 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.
13. LIMITATIONS ON LIABILITY
NONE OF THE RELEASED PARTIES SHALL IN ANY EVENT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES OR INCIDENTAL LOSSES OR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO OR YOUR USE OF THE WEBSITE OR COLLECTIVE SERVICES PROVIDED VIA THE WEBSITE OR THESE TOU, EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, OR IF SUCH LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.
NONE OF THE RELEASED PARTIES SHALL BE LIABLE FOR ANY FAILURE OR DELAY IN ITS PERFORMANCE DUE TO CIRCUMSTANCES BEYOND ITS CONTROL, INCLUDING BUT NOT LIMITED TO, ACTS OF CIVIL OR MILITARY AUTHORITY, NATIONAL EMERGENCIES, TERRORISM, LABOR DIFFICULTIES, FIRE, FLOOD OR CATASTROPHE, ACTS OF GOD, INSURRECTION, WAR, RIOTS OR FAILURE BEYOND ITS REASONABLE CONTROL OF TRANSPORTATION, POWER SUPPLY, INTERNET OR ANY TELECOMMUNICATION LINES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TOU, LIABILITY OF THE RELEASED PARTIES, IN THE AGGREGATE, TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO $500.00 (FIVE HUNDRED UNITED STATES DOLLARS) OR THE AMOUNT OF FEES YOU HAVE ACTUALLY PAID TO COLLECTIVE FOR YOUR ACCESS TO OR YOUR USE OF THE WEBSITE OR COLLECTIVE SERVICES PROVIDED VIA THE WEBSITE WITHIN THE YEAR PRIOR TO THE DATE YOU MAKE SUCH CLAIM, IF ANY, WHICHEVER AMOUNT IS GREATER.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, ANY SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
YOU IRREVOCABLY AND FOREVER WAIVE, RELEASE AND DISCHARGE EACH OF THE RELEASED PARTIES FROM, AND AGREE NOT TO ASSERT OR MAINTAIN, ANY AND ALL CLAIMS, SUITS, LIABILITIES, DEMANDS, CAUSES OF ACTION OR SIMILAR PROCEEDINGS, KNOWN OR UNKNOWN, WHICH YOU MAY HAVE NOW OR IN THE FUTURE, ARISING FROM, RELATING TO, OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, ANY INFORMATION PROVIDED BY THIRD PARTIES TO COLLECTIVE AND MADE AVAILABLE TO YOU BY COLLECTIVE AS REFERENCED IN SECTION 3 OF THIS TOU.
14. YOUR INDEMNIFICATION
You shall defend, indemnify and hold harmless the Released Parties, from and against all claims, losses, liabilities, damages, costs and expenses, including but not limited to reasonable external counsel fees or other expenses incurred in connection with investigating any claim, in whole or in part arising out of or attributable to (i) any breach or violation by You of any applicable laws and regulations; (ii) any unauthorized use of the Collective trademarks, Collective's Confidential Information, or customer information; or (iii) any breach of these TOU by You or that You may have with any other party. You irrevocably and forever waive and release and discharge Released Parties from, and agree not to assert or maintain, any and all claims, suits, liabilities, demands, causes of action or similar proceedings, known or unknown, which You may have now or in the future, arising from, relating to, or in connection with, directly or indirectly, the existence of, or the non-disclosure of, in whole or in part, the MNPI.
These TOU will continue to apply so long as You are able to access the Website. Collective may at any time, in its sole discretion, terminate its legal agreement with You, and Your ability and permission to access the Website, immediately upon notice to the e-mail address that Collective has for You. Notwithstanding anything to the contrary herein, all covenants, agreements, representations, indemnities and warranties made by You in these TOU shall survive the termination of these TOU.
16. REVISIONS TO THE TOU
Collective reserves the right, at its sole discretion, to modify these TOU from time to time. The modified terms will become effective when posted on the Website. Collective may send You an email notifying You of any modifications to the TOU or post notice on the Website. Your continued use of the Website following posting on the Website or our notice to You of such modifications constitutes Your acceptance of our revised TOU and policies.
17. GOVERNING LAW AND VENUE FOR DISPUTES
These TOU and Your relationship with Collective under these TOU, are governed by the laws of the State of New York without regard to its conflict or choice of law provisions. Any dispute with the Released Parties arising under or in relation to this TOU shall be resolved exclusively in New York, New York, except with respect to imminent harm requiring temporary or preliminary injunctive relief in which case Collective may seek such relief in any court with jurisdiction over the parties. You understand that, in return for agreement to this provision, Collective is able to offer the Website at the terms designated, and that Your assent to this provision is an integral part of Collective’s willingness to enter into these TOU.
You also acknowledge and understand that, with respect to any dispute with the Released Parties, arising out of or relating to Your use of the Website or these TOU:
- YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and
- YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.
(A) Collective and You agree to arbitrate all disputes and claims between us. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You and Collective both intend this Section to be broadly interpreted. The arbitrator shall be bound by the terms of this Section. Either party may alternatively bring an individual action in small claims court as opposed to arbitration provided that the procedure set forth in Subsection (C) below is observed.
Our agreement to arbitrate disputes includes, but is not limited to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- claims that are currently the subject of purported class action litigation in which You are not a member of a certified class; and
- claims that may arise after the termination of these TOU.
For the purposes of this Section, references to “Collective” and “We” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Website. You understand and agree that, by entering into these TOU, You and Collective are each waiving the right to a trial by jury or to participate in a class action. This TOU evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision.
(B) Any arbitration between You and Collective will be conducted by JAMS/ENDISPUTE, Incorporated in accordance with its Arbitration Rules and Procedures (“Rules”) then in effect, as modified by these TOU. The Rules are available online at http://www.jamsadr.com/rules-clauses/ or by writing to the Notice Address. You may also obtain information about the arbitration process online at http://www.jamsadr.com/. The arbitration shall be governed by the laws of the State of New York without regard to conflict of law principles. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to the arbitration.
(C) A party who intends to seek arbitration must first send to the other, by certified mail or Federal Express (signature required), a written Notice of Dispute (“Notice”). The Notice to Collective should be addressed to: Collective Liquidity, Inc., Attn: Legal Department, 4554 Broad Street, #100, San Luis Obispo, CA 93401, with a copy to [email protected] (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If You and Collective do not reach an agreement to resolve the claim within 30 days after the Notice is received, You or Collective may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by You or Collective shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or Collective is entitled.
(D) After Collective receives notice at the Notice Address that You have commenced arbitration, it will reimburse You for Your payment of any filing fee, unless Your claim is for greater than $10,000. If Your claim is greater than $10,000, the payment of any fees shall be decided by the Rules. Any arbitration hearings will take place at a location to be agreed upon in New York, New York. If Your claim is for $10,000 or less, We agree that You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the Rules. If Your claim exceeds $10,000, the right to a hearing will be determined by the Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator finds that either the substance of Your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the Rules. In such case, You agree to reimburse Collective for all monies previously disbursed by it that are otherwise Your obligation to pay under the Rules. In addition, as noted above, if You initiate an arbitration in which You seek more than $10,000 in damages, the payment of these fees will be governed by the Rules. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(E) The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. Further, unless both You and Collective agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
(F) Regardless of anything else in these TOU or this Section, no party, person, or entity covered by the provisions of this Section will be allowed to participate in a class action in court or in class-wide arbitration, whether as a class representative, class member, or otherwise, or act as a private attorney general, in connection with any arbitration or court proceeding involving these TOU or any claim, dispute, controversy, or other matter in question, arising out of, or relating to, the TOU, or to the breach hereof. In addition, any arbitration or court proceeding involving the TOU or any claim, dispute, controversy, or other matter in question arising out of, or relating to the TOU, may not be joined or consolidated with any other arbitration or court proceeding involving a different agreement or different parties. The arbitrators have no power or authority to conduct class-wide, consolidated, or private attorney general arbitration. This Section shall apply only to the extent permitted by law and the validity and effect of this class action and consolidation waiver may be determined only by a court and not by an arbitrator. If a determination is made in a proceeding involving the parties that this class action and consolidation waiver is invalid or unenforceable, only this sentence of this Section will remain in force and the remainder of this Section shall be null and void, provided that the determination concerning the class action and consolidation waiver shall be subject to appeal.
(G) Notwithstanding any provision in these TOU to the contrary, We agree that if Collective makes any future change to this arbitration provision (other than a change to the Collective Arbitration Notice Address), You may reject any such change by sending Collective written notice within 30 days of the change to the Collective Arbitration Notice Address provided above. By rejecting any such change, You are affirming that You will arbitrate any dispute between us in accordance with the language of this provision, and Your account with Collective shall be immediately terminated. This arbitration provision shall survive termination of this TOU and the termination of Your Website account.
(H) If only Subsection G or the entirety of this Section is found to be unenforceable, then the entirety of this Section shall be null and void and, in each such case, the parties agree that the exclusive jurisdiction and venue described in Section 17 (Governing Law) of these TOU shall govern any action arising out of or related to these TOU.
Except as otherwise provided in the section on Arbitration, If any portion of these TOU is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, the TOU as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of the TOU that is unlawful, void or unenforceable shall be stricken from the TOU.
You agree that if Collective does not exercise or enforce any legal right or remedy which is contained in the TOU (or which Collective has the benefit of under any applicable law), such failure to exercise such right or remedy may not be construed as a waiver of any other rights and remedies of Collective.
Other than as described in the TOU, the TOU represent the entire understanding and agreement between You and Collective regarding the subject matter of the Website, and supersede all other previous agreements.
Electronic scanned copies of these TOU will have the same legal effect as the original. Each party agrees that a facsimile, electronic or digital signature will have the same effect as a handwritten signature.