Terms of Use

 

Your use of the website and mobile sites on which these terms reside (collectively, the “Site”), and the features at this Site are subject to these Terms of Use (the “Terms”), which we may update from time to time.  Please read these Terms carefully before using this Site.  The Site is owned or controlled by Diffuse Inc. (“Company”).  This Site is intended for and applicable only for individuals who are age 18 or older.  If you are under 18 years of age, you may not use this Site.  By accessing this Site in any way, including, without limitation, browsing this Site, using any information, and/or submitting information to Company, you agree to and are bound by the terms, conditions, policies and notices contained on this page (the “Terms”), including, but not limited to, conducting this transaction electronically, disclaimers of warranties, damage and remedy exclusions and limitations, binding arbitration and a choice of Delaware law.

 

From time to time we may update this Site and these Terms.  Your use of this Site after we post any changes to these Terms constitutes your agreement to those changes.  You agree to review these Terms periodically to ensure that you are familiar with the most recent version.  Company may, in its sole discretion, and at any time, discontinue this Site or any part thereof, with or without notice, or may prevent your use of this Site with or without notice to you.  You agree that you do not have any rights in this Site and that Company will have no liability to you if this Site is discontinued or your ability to access the Site or any content you may have posted on the Site is terminated.

 

Description of the Company

 

The Company provides users with an online platform that, among other things, allows users to indirectly invest in certain private companies through special purpose vehicles and/or bring investment opportunities to the platform and form or manage the special purpose vehicles.  The Company functions as a platform provider and is not a market maker for the interests offered by the special purpose vehicles.

 

Significant regulation applies to private investments made in or through the special purpose vehicles (“SPVs”) offered on the Site.  Each SPV will be formed as a Delaware limited liability company and offered to prospective investors (“Investors”) on the Site for the purpose of aggregating multiple Investors’ investments through a single investment vehicle, which will be used to acquire securities of a company raising capital through a private offering of its securities (the “Issuer”). Each SPV will be managed by the investor bringing the Issuer to the platform (the “Lead Investor”) and will be syndicated by the person selected to oversee the financing of the SPV (the “Syndicator”).  Each SPV shall be administered by a third party fund administrator.  Each Offering (defined below) of limited liability interests in an SPV (“Interests”) must comply with U.S. federal securities laws.  An “Offering” is defined as any offering of the Interests of an SPV uploaded, listed, displayed and offered on the Site by a Syndicator.

 

An SPV’s Lead Investor and/or Syndicator may provide information about the related Issuer on the Site.  The Interests of each SPV will be offered pursuant to such SPV’s Limited Liability Company Operating Agreement (as amended, from time to time), such SPV’s subscription documents and/or any side letter related to the SPV (collectively, the “SPV Offering Documents”).  The SPV’s Lead Investor and Syndicator will be entitled to a portion of the carried interest related to such SPV.  Investors should review the SPV Offering Documents carefully before investing in an SPV.

 

General Securities Law Principles

 

There are many security laws applicable to the offer of the limited liability company interests of an SPV (the “Interests”) on the Site. These laws are designed to protect unsophisticated persons from making poor investment decisions. In general, securities sold in the United States must be registered with the Securities and Exchange Commission (“SEC”), unless the sale of securities qualifies for an exemption. The SPVs rely on the “private placement” exemption to avoid having to register the Interests with the SEC.  Accordingly, only sophisticated Investors are authorized to create Investor accounts to invest in the SPVs. Investors must understand the risk of investing in securities, including the likelihood of loss and potential long period(s) of illiquidity. If you are using the Site as an Investor (i.e., not a Lead Investor or a Syndicator) and, if you are a U.S. Person (defined below) or you are not a U.S. Person, but intend to enter into transactions on the Site from the United States, you must qualify as an Accredited Investor.  “United States” means the United States of America, its territories and possessions, any State of the United States, and the District of Columbia.

 

An “Accredited Investor” is defined by the SEC in Rule 501 of Regulation D under the Securities Act of 1933 as follows: (1) a natural person with income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year; (2) a natural person who has individual net worth, or joint net worth with the person’s spouse, that exceeds $1 million at the time of the purchase, excluding the person’s primary residence; (3) a director, executive officer or general partner of an Issuer; (4) a business in which all the equity owners are accredited investors; (5) a charitable organization, corporation or partnership with assets exceeding $5 million; (6) a bank, insurance company, registered investment company, business development company or small business investment company; (7) an employee benefit plan, within the meaning of the Employee Retirement Income Security Act, if a bank, insurance company or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5 million; or (8) a trust with assets in excess of $5 million, not formed to acquire the securities offered, whose purchases a sophisticated person makes.

 

A “U.S. Person” is an individual or entity that is: (1) any natural person resident in the United States; (2) any partnership or corporation organized or incorporated under the laws of the United States; (3) any estate of which any executor or administrator is a U.S. person; (4) any trust of which any trustee is a U.S. person; (5) any agency or branch of a foreign entity located in the United States; (6) any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; (7) any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated, or (if an individual) resident in the United States; and (8) any partnership or corporation if: (a) organized or incorporated under the laws of any foreign jurisdiction; and (b) formed by a U.S. person principally for the purpose of investing in securities not registered under the Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in §230.501(a)) who are not natural persons, estates or trusts. The following are not “U.S. Persons”: (i) a discretionary account or similar account (other than an estate or trust) held for the benefit or account of a non-U.S. person by a dealer or other professional fiduciary organized, incorporated, or (if an individual) resident in the United States; (ii) any estate of which any professional fiduciary acting as executor or administrator is a U.S. person if: (iii) an executor or administrator of the estate who is not a U.S. person has sole or shared investment discretion with respect to the assets of the estate; and (iv) the estate is governed by foreign law; (v) any trust of which any professional fiduciary acting as trustee is a U.S. person, if a trustee who is not a U.S. person has sole or shared investment discretion with respect to the trust assets, and no beneficiary of the trust (and no settlor if the trust is revocable) is a U.S. person; (vi) an employee benefit plan established and administered in accordance with the law of a country other than the United States and customary practices and documentation of such country; (vii) any agency or branch of a U.S. person located outside the United States if: (x) the agency or branch operates for valid business reasons; and (y) the agency or branch is engaged in the business of insurance or banking and is subject to substantive insurance or banking regulation, respectively, in the jurisdiction where located; and (xi) the International Monetary Fund, the International Bank for Reconstruction and Development, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the United Nations, and their agencies, affiliates and pension plans, and any other similar international organizations, their agencies, affiliates and pension plans.

 

If you are using the Site as an Investor, but you are not a U.S. Person and your transactions on the Site occur outside of the United States, you do not need to be an Accredited Investor. All new Investors that are U.S. Persons and all new Investors that are not U.S. Persons, but who intend to enter into transactions on the Site from the United States, must complete an Accredited Investor Questionnaire, which can be found here [insert link to questionnaire] and will determine whether an Investor meets the definition of an Accredited Investor. We do not verify the representations made by Investors in the Accredited Investor Questionnaire, nor do we make any determinations regarding Investor sophistication or the suitability of any investment in securities. All new Investors that do not complete and submit an Accredited Investor Questionnaire must complete and submit a Non-U.S. Person Certification, which can be found here [insert link to certification] and certifies that an Investor is not a U.S. Person and does not intend to enter into any transaction on the Site from the United States.

 

We do not permit an Investor to access an SPV’s Offering until after the Investor has completed and submitted either (i) an Accredited Investor Questionnaire (i.e., for Investors who are U.S. Persons or Investors who are not U.S. Persons, but who intend to enter into transactions on the Site from the United States) or (ii) a Non-U.S. Investor Certification, which certifies that the Investor is not a U.S. Person and does not intend to enter into transactions on the Site from the United States. Upon receipt and our acceptance of the completed Accredited Investor Questionnaire or Non-U.S. Investor Certification, as applicable, we will grant such Investor with access to all of the Offerings on the Site. In this way, the Offerings are deemed to be compliant with the exemption from registration with the SEC. We do not permit Investors who are U.S. Persons or who are not U.S. Persons but who intend to enter into transactions on the Site to invest in any Offering unless they are Accredited Investors.

 

In addition, many states and foreign countries all have their own regulations governing securities transactions that must be observed. You must make your own assessment regarding legal and regulatory requirements that may apply to your activities on the Site and you are responsible for complying with all legal and regulatory requirements.

 

Offerings

 

A Lead Investor and/or Syndicator may upload information about an Issuer and/or SPVs, including confidential and proprietary information about Issuers and SPVs (“Confidential Information”), to the Site. A Syndicator may also determine which Investors may access Confidential Information (i.e., by granting access to specific Investors or categories of Investors). Although we will use commercially reasonable efforts to try to restrict Investors who do not have access to Confidential Information, we cannot guarantee that Investors who obtain Confidential Information do not inappropriately use or distribute Confidential Information. We also cannot guarantee that there will never be a software glitch or a hacker attack that allows unauthorized viewing of Confidential Information or that Investors who are not granted access to Confidential Information do not somehow gain access to Confidential Information.

 

The Company cannot guarantee the accuracy, suitability, reliability, completeness, performance or fitness of such content or of the Offerings offered through the Site, and will not accept liability for any loss or damage that may arise directly or indirectly from the content or any of the Offerings. The content and the Offerings are subject to change without notice. The content related to the Offerings are provided by the Lead Investors and/or Syndicators, who are generally not affiliated with the Company, for the primary purpose of enabling Investors to arrive at independent financial decisions, as they generally disclose the investment opportunities and risks related to the Offerings. The Company does not review or verify any information contained in the content or monitor or manage the Offerings and will have no liability for the use or interpretation of the content related to the Offerings or any investment in the Offerings. The Company has no control over and does not guarantee the safety or legality of the Offerings; the truth or accuracy of the content related to the Offerings; or your ability to sell or transfer the Interests acquired on the Site. All Investors must understand that there are risks involved in investing in the SPVs and all Investors must invest responsibly and reasonably. Investors are encouraged to exercise caution when investing in the SPVs.

 

While the Company strives for security of the Site to ensure the continuity and security of the Company services, we will not be held accountable for acts of God, hacking, terrorist attacks or other unforeseen circumstances or events outside our control. The Company reserves the right to cancel, restrict or block transactions occurring on the Site.

 

Use of the Site and Posting Policy

 

You are able to submit photos, written posts and certain other materials (“Your Data”) on the Site. The following requirements apply to your use of the Site and posting of Your Data:

 

  • you will not use any electronic communication feature of the Site for any purpose or post any content that is unlawful, harmful, tortious, defamatory, libelous, obscene, invasive of the privacy of another person, threatening, harassing, abusive, hateful, racist, infringing, pornographic, violent or otherwise objectionable or inappropriate as determined by Company;
  • you will not post any content that contains personal information about any individual without such individual’s prior written consent, that violates the privacy/publicity of any other individual or entity, or that you are under a contractual obligation to keep private or confidential;
  • you will not impersonate any person or organization, including without limitation, the personnel of Company, or misrepresent an affiliation with another person or organization;
  • you will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights;
  • you will not collect or store personal data about other users;
  • you will not breach or circumvent any laws or third-party rights;
  • you will not use the Site for any commercial purpose not expressly approved by Company in writing;
  • you will not upload, post, email, or otherwise transmit any advertising or promotional materials or any other form of solicitation or unauthorized communication;
  • you will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment;
  • you will not interfere with, interrupt, destroy, or limit the functionality of the Site or the Company services or any of the Company’s computer software or hardware;
  • you will not use the Site or the Company services in any manner that could damage, disable, overburden, or impair any server, or interfere with any other party’s use of the Site or the Company services;
  • you will not attempt to gain unauthorized access to the Company, the Site, or the Company services, third-party accounts, computer systems, or networks connected to the Company, through hacking, cracking, counterfeit software, password mining, or any other means;
  • you will not and reverse engineer, decompile or disassemble any software accessed through the Company services or the Site;
  • you will not reproduce, duplicate, copy, sell, resell, visit, or otherwise exploit for any reason any part of the Company, the Site, or Company Content or other content made available on the Site;
  • you will use the Company services and the Site only for purposes that are permitted;
  • all of your activities will be in compliance with all applicable laws, rules, and regulations and generally accepted practices and guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States and any other relevant countries); and
  • you are solely responsible for complying with all applicable laws, rules, and regulations regarding any of your transactions on the Site.

 

You further agree that:

 

  • except pursuant to any SPV Offering Documents, we are not obligated to pay you or to cause any other party to pay you any compensation with respect to your activities on the Site, or to feature or otherwise display any of your content;
  • you do not rely on us to monitor or edit the Company services (including emails or other communications initiated by individuals, whether or not associated with the Company);
  • if you operate, manage or otherwise control a search engine or robot or if you display, distribute or otherwise republish any significant amount of the Company Content or other content made available on the Site (as determined by us in our discretion), you must use a descriptive user agent header, follow robots.txt at all times and make it clear how to contact you in your user agent string or on your website if you have one;
  • you are not on any trade or economic sanctions lists, such as the United Nations Security Council Sanctions List and its equivalent, and agree to immediately notify us in writing if you are added to any trade or economic sanctions lists;
  • prohibited users are not eligible or allowed to use or access the Company services or the Site; and
  • The Company maintains the right to select its markets and jurisdictions to operate and may restrict or deny its services to certain countries.

 

If you are an Investor, you in addition agree:

 

  • to only invest in an Offering after carefully reviewing and assessing the content related to the Offering, including the applicable SPV Offering Documents, the terms and risks of the investment and any documentation and information provided by the Lead Investor and/or the Syndicator through the Site;
  • to use your own judgment before making any decision to invest in an Offering involving what is to you a material amount of money; and
  • to obtain professional advice, as is appropriate, to protect your interests, including legal, tax, accounting and other advice.

 

If you are a Lead Investor and/or a Syndicator, you in addition agree:

 

  • that you shall be solely responsible for (and that we have no responsibility or liability to you or to any third party for) the content, including any SPV Offering Documents, and the Offerings you list on the Site and for the consequences of your actions (including any loss or damage which we may suffer) by doing so;
  • you will not provide inappropriate or fraudulent content related to any Offering, including in any SPV Offering Documents; and
  • to only bring Offerings to the Site and provide access to content (including Confidential Information) in the SPV Offering Documents or otherwise that you have the right to provide.

 

By displaying, publishing, or otherwise posting any Your Data on or through the Site, you hereby grant to Company a non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, reproduce, and distribute such Your Data in any and all media now known or hereinafter developed without the requirement to make payment to you or to any third party or the need to seek any third party permission. This license includes the right to host, index, cache, distribute, and tag any Your Data, as well as the right to sublicense Your Data to third parties, including other users, for use on other media or platforms known or hereinafter developed, such as for use on mobile phones. You continue to retain all ownership rights in your Your Data, and you continue to have the right to use your Your Data in any way you choose, subject to these Terms and the license described herein.  You represent and warrant that you own the content submitted, displayed, published or posted by you on the Site and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any content you submit, and our use thereof does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity.

 

You agree to indemnify and hold Company, its parents, subsidiaries, officers, employees, and website contractors and each of their officers, employees and agents harmless from any claims, damages and expenses, including reasonable attorneys’ fees and costs, related to your violation of these Terms, including the Posting Policy, or any violations thereof by your agents or affiliates or which arises from the use of Your Data you submitted, posted, or otherwise provided to Company or this Site.

 

Additional Terms

 

You understand that certain services and features that may be available on the Site may be subject to additional specific terms and conditions.  This may include, but is not limited to, the SPV Offering Documents.  In the event of any conflict between these Terms and any such specific terms and conditions, the specific terms and conditions will control. 

 

Your Account

Certain areas of the Site may require registration or may otherwise ask you to provide information to participate in certain features or access certain content. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Site or any features at all. If the Site requires you to create an account or otherwise submit information, you agree that you will provide accurate and complete information for your user account; that you will not impersonate a third party in your communications with Company; that you will only submit information about yourself; and that you will otherwise comply with these Terms, including the Posting Policy section of these Terms. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. You may not authorize any other person or entity to use your account or to access restricted or protected content or features available at the Company Site. Creating an account or opting in to receive notifications or offers does not guarantee the receipt of any such messages or the availability to you of any promotional offer.

 

An account can only be used by the person whose name the account is registered under. In addition, we require all users to complete an Accredited Investor Questionnaire or Non-U.S. Person Certification, as applicable, and our Anti-Money Laundering Supplement, which can be found here [insert link to supplement].

 

You are solely responsible for the activity that occurs on your account, including all transactions and other activities undertaken with your device, whether authorized or unauthorized. You must keep your user account, username, and password secure. You must notify Company immediately of any breach of security or unauthorized use of your account. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the Site. Company is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. Company shall not be responsible for any losses arising out of the loss or theft of user information transmitted from or stored on a computer or device or from unauthorized or fraudulent transactions associated with the Site.

 

You agree that you shall be responsible for all consequences resulting from your actions or actions taken by others on your account and the Company shall have the right to freeze your account and file claims against you for material breach of these Terms. We reserve the right to suspend, freeze, or cancel accounts that are used by persons other than the persons whose names they are registered under for any suspicious or illegal activity taken in connection with an account. Depending on certain conditions and in our sole discretion, we may refuse to open an account for you. We may also notify regulatory and law enforcement authorities if we discover illegal activity being conducted in connection with any account.

 

You understand that you have no ownership rights in your account or other access to the Site or features therein. Company may terminate your access to the Site, cancel your account and/or delete all information associated with your account, including any materials you may have submitted to Company, at any time, and without notice, for any reason, including if Company deems that you have violated these Terms or the law, if the Company is required to do so by law, if the account is subject to a governmental proceeding, criminal investigation, or other pending litigation, if we detect unusual activity on the account, if we detect unauthorized access to the account, if the Company decides to no longer provide services or the Site, or for any other reason. Company assumes no liability for any information removed from our Site, and reserves the right to permanently restrict access to the Site or a user account.

 

Company Content

 

Content on this Site that is provided by Company or its licensors, including certain graphics, photographs, images, screen shots, text, digitally downloadable files, trademarks, logos, product and program names, slogans and the compilation of the foregoing (“Company Content”) is the property of Company and its licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws.

 

You agree not to download, display or use any Company Content located on the Site for use in any publications, in public performances, on websites other than this Site for any other commercial purpose, in connection with products or services that are not those of Company, in any other manner that is likely to cause confusion among consumers, that disparages or discredits Company and/or its licensors, that dilutes the strength of Company’s or its licensor’s property, or that otherwise infringes Company’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any Company Content or third party content that appears on this Site.

 

If you are a trademark or copyright owner and you believe that your trademark or copyright rights have been violated, please go to our Proprietary Rights Complaint Process [link to Proprietary Rights Complaint Process] and follow the instructions at that area.

 

Representations, and Limitations of Liability

 

Company makes no representations about the reliability of the features of this Site, the content made available on the Site (including the Company Content), Your Data, or any other Site feature, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material or systems will be at your own risk. Company makes no representations regarding the amount of time that any content or Your Data will be preserved.

 

Company does not endorse, verify, evaluate or guarantee any information provided by users and nothing shall be considered as an endorsement, verification or guarantee of any Your Data. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which contain or suggest an endorsement by Company without the prior review and written approval of Company.

 

THIS SITE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THIS SITE OR ANY INFORMATION OR SOFTWARE THEREIN. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (COLLECTIVELY, “DAMAGES”) THAT RESULT FROM THE USE OF OR INABILITY TO USE THIS SITE, NOR SHALL COMPANY BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND COMPANY’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THIS SITE’S RECORDS, PROGRAMS, OR SERVICES. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL COMPANY OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DAMAGE OF ANY KIND THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SITE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF COMPANY’S NEGLIGENT, FRAUDULENT OR RECKLESS ACT(S) OR INTENTIONAL MISCONDUCT. 

 

Third Party Websites

 

This Site may hyperlink to sites not maintained by or related to Company. Hyperlinks are provided as a service to users and are not sponsored by or affiliated with this Site or Company, and Company makes no representations or warranties about the content, completeness, or accuracy of those third party sites. Information you submit at a third party site accessible from this Site is subject to the terms of that site’s privacy policy, and Company has no control over how your information is collected, used, or otherwise handled.

 

California Users and Residents

 

Under California Civil Code Section 1789.3, California users of the Company services receive the following specific consumer rights notice: “The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.”

 

Personal Information

 

On certain areas of our Site, you may be asked to provide us with personally identifiable information. Please read our Privacy Policy [insert link to Privacy Policy] for more information about our information collection, use and sharing practices.

 

Binding Arbitration

 

You and Company agree that any controversy or claim arising out of or relating to the Site, use of the Site, these Terms and/or the Privacy Policy [insert link to Privacy Policy] shall be settled by binding arbitration in Chicago, Illinois at a location determined by the arbitrator as set forth herein, or at such other location as may be mutually agreed upon by the parties, in accordance with the applicable procedural rules set forth in the then prevailing Comprehensive Arbitration Rules and Procedures of JAMS (“JAMS Rules and Procedures”), and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  The JAMS Rules and Procedures are available at www.jamsadr.com or by calling (800) 352-5267. The arbitrator shall be selected pursuant to the JAMS Rules and Procedures. The arbitrator shall apply Delaware law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, 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, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither claimant nor Company shall be entitled to arbitrate their dispute.  THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. 

 

BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL AND YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION.  DO NOT USE THIS SITE IF YOU DO NOT AGREE TO THE FOREGOING BINDING ARBITRATION PROVISIONS.

 

Miscellaneous

 

Both you and Company acknowledge and agree that no partnership is formed and neither of you nor Company has the power or the authority to obligate or bind the other.

 

These Terms will be governed by and construed in accordance with the internal laws of the State of Delaware without regard to conflicts of laws principles. By using this site, you hereby agree that any action to enforce any arbitration award and any other disputes (if any) regarding these Terms that are not subject to arbitration will be subject to the courts located in Chicago, Illinois.  You agree that, to the extent permitted by applicable law, any and all disputes, claims, and causes of action arising out of or connected with this Site and/or these Terms, will be resolved individually, without resort to any form of class action.  These Terms operate to the fullest extent permissible by law.

 

The failure of Company to comply with these Terms because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond the reasonable control of Company, shall not be deemed a breach of these Terms.

 

If Company fails to act with respect to your breach or anyone else’s breach on any occasion, Company is not waiving its right to act with respect to future or similar breaches.

 

If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms of use and shall not affect the validity and enforceability of any remaining provisions.

 

These Terms constitute a binding agreement between you and Company, and is accepted by you upon your use of the Site or your account. These Terms constitute the entire agreement between you and Company regarding the use of the Site and your account. By using the Site you represent that you are capable of entering into a binding agreement, and that you agree to be bound by these Terms.

 

Proprietary Rights Complaint Process and Notification Form

 

If you are a trademark or copyright owner and you believe that your rights have been violated in any way, please complete and submit a signed copy of the form below, and send to our designated agent at [insert contact information].  Our agent information is provided pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2). 

 

Upon receipt of a fully completed and signed notification form, we will disable access to the allegedly infringing materials and will promptly notify the individual who posted the materials that access has been disabled as is our obligation under the Copyright Act.  If your notification is unsigned or is not on our form and does not contain the authorization language of our form, we will work with you to obtain a properly executed notification.  If any of the other information is missing from your notification, however, we will not be able to respond to your request.

 

Pursuant to 17 U.S.C. § 512(g)(2), the individual who posted the materials may provide us with counter-notification that the materials were removed or disabled as the result of a mistake or misidentification of the materials.  This counter-notification must (1) be signed, (2) include the individual’s name, address and telephone number, (3) include a statement that the individual is making the counter-notification under penalty of perjury, and (4) state that the person consents to the jurisdiction of the federal district court where his or her address is located.  If we receive such a counter-notification, and we determine that we would like to restore access to the materials, a copy will be sent to you notifying you that access to the materials will be restored within ten business days.  Access will be restored between the tenth and fourteenth business day after we receive a counter-notification unless you inform us that you have filed an action seeking a court order to restrain the individual who made the posting from engaging in infringing activity on our network and servers.  If we determine that we do not want to restore access to the materials, you will not receive any further notification.

 

Nature of Infringement: ¨ Copyright  ¨ Trademark ¨ Other

 

Description of your proprietary material that has been infringed:                                                    

 

                                                                                                                                                           

 

Registration numbers of your proprietary material:                                                                          

 

                                                                                                                                                           

 

Description of infringing material located on our site:                                                                     

 

                                                                                                                                                           

 

URL at which infringing material is located:                                                                                    

 

Contact information at which you can be reached:

 

Name:                                                                   Telephone number:                                              

 

Address:                                                                                                                                             

 

e-mail address:                                                   Fax number:                                                            

 

By signing below, you certify, under penalty of perjury under the laws of the United States that (1) you are either the rights holder, or authorized to act on the rights holder’s behalf, (2) you have a good faith belief that the use of the allegedly infringing material has not been authorized, and (3) the information provided above is true and accurate.

 

Signature:                                                          Name:                                             Date: