Agreement between You and CapitalWave Inc.
Last Updated Date: May 31, 2014
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
The Services consists of courses (each, a “Course”) provided by course providers (each, an “Entity”) and their teacher users (“Instructors”) that student users (“Students”) may enroll and participate in. “User” means any user of the Service, including Students and Instructors. Your use of certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will be presented to you for your acceptance when you sign up to use the supplemental Service. The Supplemental Terms will apply in the event of any conflict between these Terms and the Supplemental Terms.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY CAPITALWAVE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, CapitalWave will make a new copy of the Terms available at the Website. We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have registered to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new Users of the Website or Services and will be effective thirty (30) days after posting of notice of such changes on the Website for existing Users. CapitalWave may require you to provide consent to the updated Terms in a specified manner before further use of the Website or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
NOTICE TO MINNESOTA USERS: If you are a resident of Minnesota, you agree that either (a) you will not take courses on the Services for academic credit and/or for a fee, or (b) for each such class that you take, the majority of work you do for the class will be done from outside Minnesota.
Use of the Services and CapitalWave Properties.
The Website, the Services, and the information and content (“Content”) made available by CapitalWave on the Website and in the Services (collectively, the “CapitalWave Properties”) are protected by copyright laws throughout the world. Subject to the Terms, CapitalWave grants you a limited license to reproduce portions of the CapitalWave Properties for the sole purpose of using the Services for your personal purposes or, in the event you are an Instructor, your educational or business purposes.
Application License. CapitalWave also provides a mobile application (the “Application”) for use with the Services. Your use of the Application is governed by the End User License Agreement that accompanies the Application in the marketplace where you download it.
Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the CapitalWave Properties, (b) you shall not use framing techniques to enclose any trademark, logo, or other CapitalWave Properties; (c) you shall not use any metatags or other “hidden text” using CapitalWave’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the CapitalWave Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Website; (f) except as expressly stated herein, no part of the CapitalWave Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the CapitalWave Properties. Any future release, update or other addition to the CapitalWave Properties shall be subject to the Terms. CapitalWave, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the CapitalWave Properties terminates the licenses granted by CapitalWave pursuant to the Terms.
In order to access certain features of the CapitalWave Properties you must have an account (“Account”). Certain features are only available to Instructor Accounts.
Accounts. To create an Account (or receive an Account from CapitalWave if you are an Instructor), you must (1) provide us with any Registration Data requested in the registration form, and (2) accept the Terms. If you are an Instructor, your access to certain features of the CapitalWave Properties, including those portions enabling you to create and post Course Content, may be subject to you and your organization entering into a separate agreement between you and CapitalWave; your Entity will be responsible for any activities, including any violation of the Terms, that occur under your Instructor Account.
Registration Data. In registering for the Services, you agree to (1) provide true, current, and complete Registration Data; and (2) maintain and promptly update the Registration Data to keep it true, current, and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify CapitalWave immediately of any unauthorized use of your password or any other breach of security. You agree not to create or access an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. You agree not to create an Account or use the CapitalWave Properties if you have been previously removed by CapitalWave, or if you have been previously banned from any of the CapitalWave Properties.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the CapitalWave Properties, including but not limited to, a device that is suitable to connect with and use the Application. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the CapitalWave Properties.
Responsibility for Content.
Types of Content. You acknowledge that all Content, including the CapitalWave Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not CapitalWave, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the CapitalWave Properties (“Your Content”), and other Users of the CapitalWave Properties, and not CapitalWave, are similarly responsible for all Content they Make Available through the CapitalWave Properties (“User Content”).
No Obligation to Pre-Screen Content. You acknowledge that CapitalWave has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although CapitalWave reserves the right in its sole discretion to pre-screen, refuse, or remove any Content that (1) violates any law or regulation, (2) violates these Terms, and/or (3) otherwise creates liability for CapitalWave. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications.
Storage. Unless expressly agreed to by CapitalWave in writing elsewhere, CapitalWave has no obligation to store any of Your Content that you Make Available on the CapitalWave Properties. CapitalWave has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the CapitalWave Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content.
CapitalWave Properties. Except with respect to Your Content and User Content, you agree that CapitalWave and its suppliers own all rights, title and interest in the CapitalWave Properties. CapitalWave’s name and other related graphics, logos, service marks and trade names used on or in connection with the CapitalWave Properties are the trademarks of CapitalWave and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the CapitalWave Properties are the property of their respective owners.
Your Content. CapitalWave does not claim ownership of Your Content. However, you grant CapitalWave a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the CapitalWave Properties to you and to our other Users. When you as a User post or publish Your Content on or in the CapitalWave Properties, you represent that you have the authority to grant the aforementioned license to CapitalWave. Please remember that other Users may search for, see, use, modify, and reproduce any of Your Content that you submit to any “public” area of the CapitalWave Properties.
Your Account. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on or in the CapitalWave Properties, you hereby expressly permit CapitalWave to identify you by your username as the contributor of Your Content in any publication in any form, media, or technology now known or later developed in connection with Your Content.
User Code of Conduct. As a condition of use, you agree not to use the CapitalWave Properties for any purpose that is prohibited by the Terms or by applicable law. Do not post, or permit others to post, content on the CapitalWave Properties or on your profile that (i) encourages illegal activities, is fraudulent, or is unlawful; (ii) insults, defames, harasses, or threatens others; (iii) violates the copyright or intellectual property or privacy rights of others; (iv) contains obscene materials; (v) harms or impersonates others; or (vi) advertises or sells a product or service. Do not reproduce content from your course or other Students unless allowed by the express copyright terms laid out by the Instructor (e.g. Creative Commons). Do not share the solutions to assignments with others unless this is encouraged by the Instructor. Do not submit the work of others as your own work. Respect the privacy of other Students and Instructors. Respect the diversity of opinions and cultures that will be present in your course. Do not attempt or engage in, any potentially harmful acts that are directed against the CapitalWave Properties, including but not limited to violating or attempting to violate any security features of the CapitalWave Properties, introducing viruses, worms, or similar harmful code into the CapitalWave Properties, or interfering or attempting to interfere with use of the CapitalWave Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the CapitalWave Properties. If you believe that someone has violated this code of conduct, begin by notifying the Instructor of the course. If you believe that someone has violated this code of conduct, begin by notifying the instructor of the course. If the issue is not addressed to your satisfaction, contact conduct@CapitalWave.com with your concerns.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to CapitalWave through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is done on a non-confidential basis and that CapitalWave has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to CapitalWave a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
CapitalWave may, but is not obligated to, monitor or review the CapitalWave Properties and Content at any time. Without limiting the foregoing, CapitalWave shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although CapitalWave does not generally monitor user activity occurring in connection with the CapitalWave Properties, if CapitalWave becomes aware of any possible violations by you of any provision of the Terms, CapitalWave reserves the right to investigate such violations, and CapitalWave may, at its sole discretion, immediately terminate your license to use the CapitalWave Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
Interactions with Other Users.
User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that CapitalWave reserves the right, but has no obligation, to intercede in such disputes. You agree that CapitalWave will not be responsible for any liabilities incurred as the result of such interaction.
Content Provided by Other Users. The CapitalWave Properties may contain User Content provided by other Users. CapitalWave is not responsible for and does not control User Content (including Course Content). CapitalWave has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
Third-Party Websites. The CapitalWave Properties may contain links to third-party websites or for third party advertisements (“Third-Party Content”). When you click on a link to Third-Party Content, we will not warn you that you have left the CapitalWave Properties and are subject to separate terms and conditions or privacy policies. Such Third-Party Content is not under the control of CapitalWave. CapitalWave is not responsible for any Third-Party Content and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Content, or their products or services. You use all links in Third-Party Content at your own risk. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Content, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third-party from which you received the Application, e.g., the Apple or Android app stores.
You agree to indemnify and hold CapitalWave, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the “CapitalWave Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the CapitalWave Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any User; or (e) your violation of any applicable laws, rules or regulations. CapitalWave reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with CapitalWave in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the CapitalWave Properties.
Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE CAPITALWAVE PROPERTIES IS AT YOUR SOLE RISK, AND THE CAPITALWAVE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. CAPITALWAVE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CAPITALWAVE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE CAPITALWAVE PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE CAPITALWAVE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE CAPITALWAVE PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE CAPITALWAVE PROPERTIES WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE CAPITALWAVE PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE CAPITALWAVE PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. CAPITALWAVE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CAPITALWAVE OR THROUGH THE CAPITALWAVE PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability.
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL CAPITALWAVE PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE CAPITALWAVE PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT CAPITALWAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE CAPITALWAVE PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE CAPITALWAVE PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE CAPITALWAVE PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON CAPITALWAVE PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE CAPITALWAVE PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
Cap on Liability. UNDER NO CIRCUMSTANCES WILL CAPITALWAVE PARTIES BE LIABLE TO YOU FOR MORE THAN THE ANY AMOUNTS RECEIVED BY CAPITALWAVE AS A RESULT OF YOUR USE OF THE CAPITALWAVE PROPERTIES IN THE 12 MONTHS PRECEDING YOUR CLAIM. IF YOU HAVE NOT PAID INSTRCUTURE ANY AMOUNTS IN THE 12 MONTHS PRECEDING YOUR CLAIM, CAPITALWAVE’S SOLE AND EXCLUSIVE LIABILITY SHALL BE FIFTY DOLLARS ($50).
User Content. CAPITALWAVE PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
No Liability for Conduct of Third Parties or Other Users. YOU ACKNOWLEDGE AND AGREE THAT CAPITALWAVE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD CAPITALWAVE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES (INCLUDING INSTRUCTOR USERS), INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE CAPITALWAVE PROPERTIES. YOU UNDERSTAND THAT CAPITALWAVE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE CAPITALWAVE PROPERTIES.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CAPITALWAVE AND YOU.
Procedure for Making Claims of Copyright Infringement.
It is CapitalWave’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to CapitalWave by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the CapitalWave Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the CapitalWave Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for CapitalWave’s Copyright Agent for notice of claims of copyright infringement is as follows: Bryant Nielson, 245 Park Avenue 39th Fl, New York, NY 10167; legal@CapitalWave.com.
Term and Termination.
Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the CapitalWave Properties, unless terminated earlier in accordance with the Terms.
Termination of Services by CapitalWave. If you have breached any provision of the Terms, or if CapitalWave is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful), CapitalWave has the right to suspend or terminate any Services provided to you or to delete any of Your Content. You agree that all terminations for cause shall be made in CapitalWave’s sole discretion and that CapitalWave shall not be liable to you or any third-party for any termination of your Account. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also may include deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. CapitalWave will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
Compliance with Export Control and Sanctions Laws. You agree that you will use the Website and Services in compliance with all export control laws, restrictions and regulations of the United States and all other relevant countries. You further agree not to export, or allow the export or re-export of Content, Your Content, or User Content (including any software, technical data, or any direct product thereof): (i) in violation of any applicable export control laws, restrictions, or regulations, including, but not limited to, the Export Administration Regulations (15 C.F.R. Part 730 et. seq.) and the International Traffic in Arms Regulations (22 C.F.R. Part 120 et. seq.) of the United States; (ii) to persons designated by the U.S. Treasury Department as either a Specially Designated National or a Foreign Sanctions Evader; (iii) persons designated by the U.S. Commerce Department on the Entities List, the Denied Persons List, or the Unverified List; (iv) any person or entity located in a country that is or becomes subject to U.S. embargoes (collectively, the “Embargoed Countries”); or (v) any person that is a national of an Embargoed Country, wherever located, unless and until all required licenses or authorizations are obtained from the relevant government authorities. If you are accessing or downloading Content, Your Content, or User Content (including Services, any software, technical data, or any direct product thereof), you represent that you are authorized to do so and that such accessing or downloading of content does not violate applicable law. You agree that you are solely responsible for compliance with U.S. and applicable export control laws, restrictions, and regulations. Your rights under the Terms are contingent upon your compliance with this and all other provisions.
Electronic Communications. The communications between you and CapitalWave use electronic means, whether you visit the CapitalWave Properties or send CapitalWave e-mails, or whether CapitalWave posts notices on the CapitalWave Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from CapitalWave in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that CapitalWave provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Release. You hereby release CapitalWave Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Website Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the CapitalWave Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without CapitalWave’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. CapitalWave may assign these Terms without your consent.
Force Majeure. CapitalWave shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Compliance. If you believe that CapitalWave has not adhered to the Terms, please contact CapitalWave by emailing us at legal@CapitalWave.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
(a) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
(b) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(c) You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE P Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the Company and our employees, agents, successors, or assigns, regarding or relating to these the CapitalWave Properties or these Terms, shall exclusively be settled through binding and confidential arbitration.
(d) RESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
(e) Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Salt Lake County, Utah. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Salt Lake County, Utah in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Salt Lake County, Utah for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(f) With the exception of subparts (1) and (2) in the paragraph 14.3(d) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with these Terms, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 14.3(d) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in New York, NY.
(g) Notwithstanding any provision in these Terms to the contrary, if we seek to terminate the Dispute Resolution section as included in these Terms, any such termination shall not be effective until 30 days after the version of these Terms not containing the agreement to arbitrate is posted to the Site, and shall not be effective as to any claim of which you provided the Company with written notice prior to the date of termination.
(h) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.
(i) Any and all controversies, disputes, demands, counts, claims, or causes of action between you and the Company and our employees, agents, successors, or assigns, regarding or relating to these the CapitalWave Properties or these Terms, shall exclusively be governed by the internal laws of the State of Utah, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act.
Notice. Where CapitalWave requires that you provide an e-mail address, you are responsible for providing CapitalWave with your most current e-mail address. In the event that the last e-mail address you provided to CapitalWave is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, CapitalWave’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to CapitalWave at the following address: 245 Park Avenue 39th Fl, New York, NY 10167. Such notice shall be deemed given when received by CapitalWave by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.