END-USER LICENSE AND TERMS OF SERVICE
PLEASE READ THE FOLLOWING END-USER LICENSE AGREEMENT AND TERMS OF SERVICE (“AGREEMENT”) CAREFULLY.
If you do not agree to be bound by this Agreement, then you may not use our Services. We reserve the right to modify this Agreement at any time without prior notice to you. You agree that each visit you make to the Site will be subject to our then-current Agreement posted on the Site, and your continued use of our Services now or following modifications in this Agreement confirms that you have read, accepted, and agreed to be bound by such modifications. The term “you” or “User” shall refer to any person or entity who uses, downloads, accesses, browses, or otherwise utilizes the Site or uses or receives any Services.
As part of our Services, for promotional purposes, and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails, or other types of messages directly sent to you (“Push Messages”). You acknowledge that, when you use our Services, your wireless service provider may charge you fees for data, text messaging, and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and you can opt in or out of these Push Messages through our Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages), however, some of our Services may not work properly if you do opt out. Please check with your wireless service provider to determine what fees apply to your access to and use of our Services, including your receipt of Push Messages from us.
You will be solely responsible for maintaining the confidentiality of your Account Information. You may not authorize or permit anyone else to access and/or use your Account Information, or access, visit, and/or use our Services by use of your account/profile and/or Account Information. You may not access and/or use anyone else’s Account Information, or access, visit, and/or use our Services by use of anyone else’s account/profile and/or Account Information. You may not sub-license, transfer, sell, rent, or assign your Account Information to any third party without our written approval. Any attempt to do so will be null and void and shall be considered a material breach of this Agreement. You are solely responsible for all access or visitation to, usage of, or activity on, your account/profile including, but not limited to, use of the account/profile by any person who uses your Account Information, with or without authorization, or who has access to any computer, mobile, or other device on which your account/profile resides or is accessible.
- License Grant. Subject the limitations contained in this Agreement, your compliance with this Agreement and your payment of any applicable fees, we hereby grant to you, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable, non-sublicensable, personal license to access and make personal and non-commercial use of our Services (including updates and upgrades that replace or supplement our Services in any respect and which are not distributed with a separate license, and any documentation) on a mobile device or computer that you own or control, subject to the limitations set forth below. This license does not include any resale or commercial use of our Services other than as contemplated by this Agreement; any collection and use of the listings, descriptions, or prices; any derivative use of our Services or the contents of the Site; any downloading, copying, or other use of your Account Information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools.All rights not expressly granted to you in this Agreement are reserved and retained by us or our suppliers, rightsholders, or partners. No part of our Services may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) belonging to us without our express written consent. You may not use any meta tags or any other “hidden text” utilizing our name or trademarks without our express written consent. You may not misuse our Services. You may use our Services only as permitted by Law and this Agreement. The licenses we have granted terminate if you do not comply with this Agreement or if we elect to disallow your continued use of our Services.
- License Limitations. You agree to protect our Services and their proprietary content, information, and other materials, from any unauthorized access or use, and you agree that you will not use our Services or such proprietary content, information, or other materials except as expressly permitted herein or expressly authorized in writing by us. Except as specifically permitted herein or expressly authorized in writing by us, you agree that you will not directly or indirectly: (a) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share, or otherwise exploit our Services in any unauthorized manner, including by trespass or burdening network capacity; (b) use our Services in any service bureau arrangement; (c) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify our Services, any updates, or any part thereof in any form or manner or by any means; or (d) permit any third party to engage in any of the acts described in clauses (a) through (c). You understand and agree that you are not permitted to: (i) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in our Services; (ii) decompile, disassemble, reverse compile, reverse assemble, reverse translate, or otherwise reverse engineer our Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable Law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with our Services); (iii) use any means to discover the source code or to discover the trade secrets in our Services; or (iv) otherwise circumvent any functionality that controls access to or otherwise protects our Services. Any attempt to do any of the foregoing is a violation of our rights. If you breach these restrictions, you may be subject to claims and damages.
- Terms of Service. You agree that: (a) you will not use our Services if you are under 16 years old or if you are otherwise not fully able and legally competent to agree to the terms of this Agreement; (b) you will only use our Services for lawful purposes; you will not use our Services for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent, or objectionable conduct; (c) you will not use our Services to advertise, solicit, or transmit commercial advertisements, including “spam”; (d) you will not use our Services to cause nuisance, annoyance, or inconvenience; (e) you will not impair the proper operation of our Services or otherwise try to harm our Services in any way whatsoever; (f) you will not copy, or distribute our Services or other content without written permission from us; (g) you will only use our Services for your own use and will not resell it to a third party; (h) you will keep secure and confidential your Account Information; (i) you will only use an access point or 3G/4G/5G data account which you are authorized to use; and (j) you will provide us with whatever proof of identity or other information we may reasonably request and if any of your Account Information changes, you will update it promptly by using the mechanism or contact information on our Services that allows you to change or update your Account Information, if available or you will contact us. We shall not be liable for any loss or damage arising from your failure to comply with the terms set forth in this Agreement or to comply with applicable Law. We explicitly reserve the right to refuse access to our Services at any time without notice for any reason.
- Projects. The Services allow company users (“Companies”) to post listings and descriptions of projects (the “Projects”) for student users (“Students”), educators (“Educators”) and experiential learning coordinators (“Coordinators” and collectively with Companies, Students, Educators and all other users of the Services, “Users”) to match Companies with Students for such Projects. Any information you receive through our Services is provided “as is” and “as available.” The Project and company listings and descriptions on our Services are for informational purposes only and we do not guarantee the accuracy of such information or that they are up to date. We do not guarantee that any Project will be available at any given time or that a particular Company will be in our directory at any given time. We do not guarantee that any Project listed will be matched to a Student or that, if matched, that the Student will successfully complete the Project.Projects are not formal offers of employment and are not internships. No compensation is being offered through the Services to Students for any work on, or completion of, a Project. We make no guarantee as to compensation, class credit, or any other potential benefit from work on, or completion of, a Project.We make no guarantee that a Project will be suitable for any particular Student, Educator, Coordinator or their needs. We make no guarantee about the quality of the work performed by Students or the quality of the Projects offered by Companies.
Students may be asked to enter into agreements with Companies when matched for a Project and your ability to work on a Project may be contingent on your execution of any requested agreements. Users are responsible for providing and entering into any employment, internship, privacy, non-disclosure, or any other paperwork or agreement that may be required for any particular Project. CAPSOURCE IS NOT A LEGAL ORGANIZATION AND DOES NOT ENDORSE ANY LEGAL AGREEMENTS THAT MAY BE PROVIDED BY A COMPANY TO A STUDENT IN CONNECTION WITH A PROJECT. ANY FORM OF LEGAL AGREEMENT PROVIDED TO USERS BY CAPSOURCE IS PROVIDED AS A RESOURCE ONLY AND CAPSOURCE DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT SUCH FORM AGREEMENT IS APPROPRIATE FOR ANY USER OR ANY PROJECT. ANY FORM LEGAL DOCUMENT PROVIDED BY CAPSOURCE IS NOT INTENDED TO BE LEGAL ADVICE AND YOU SHOULD NOT RELY ON SUCH AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL LEGAL ADVICE. USERS SHOULD CONSULT THEIR OWN ATTORNEY PRIOR TO ENTERING INTO ANY LEGAL AGREEMENT.
- User Content. The Services connect Students, Educators, Coordinators and Companies with our Partners and Contractors to help experiential learning engagements. “Content” means any information, text, graphics, or other materials shared between Users or uploaded, downloaded or appearing on the Services. All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via the Service. Any use of or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, timeliness, validity, copyright compliance, legality, decency, quality, reliability or any other aspect of any Content or communications posted via the Services or endorse any opinions expressed via the Services. You understand that by using the Service, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate. Under no circumstances will CapSource be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content made available via the Services.You are responsible for your use of the Service, for any Content you provide, and for any consequences thereof, including the use of your Content by other Users and third party partners. You understand that your Content may be republished and if you do not have the right to submit Content for such use, it may subject you to liability. CapSource will not be responsible or liable for any use of your Content by CapSource in accordance with these Terms.
We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate Users or reclaim usernames. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to User support requests, or (v) protect the rights, property or safety of CapSource, its Users and the public.
You are solely responsible for your interactions with other Users. CapSource makes no representations or warranties as to the conduct of Users and shall not be in any way liable for any conduct of any User. You agree to take reasonable precautions in all interactions with other Users of the Service. You should not provide your financial information (for example, your credit card or bank account information) to other Users.
- Fees. Any fees which we may charge you for our Services are due immediately. Fees for certain Services may be found at: https://nd.capsource.io/educators/pricing/. We may also enter into agreements with Users to provide customized Services for a fee. When you initiate a transaction with us, our third party payment processor will authorize your credit or debit card for the full amount due at the time of purchase.You agree to pay the costs that we actually pay to any third parties if any payment made by you is dishonored. The terms of your payment will be based on your chosen payment provider and may be determined by agreements between you and the financial institution, credit card issuer or other provider. YOU MUST PROMPTLY NOTIFY US IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USERNAME OR PASSWORD.We may decline an order for any reason. If your order is declined by us, you will receive a full refund. A full refund may be issued by CapSource for any reason. CapSource, at its sole discretion, may make promotional offers with different features and different rates to any customer. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. We may change the fees for the Services in our sole discretion.
- Regulatory Compliance; Export Laws. You agree that your use of our Services will not violate any local, state, or federal laws or regulations (the “Law” or “Laws”), including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). You will not import, export, re-export, transfer, or otherwise use, directly or indirectly, our Services and/or other information or materials provided by us or our partners and affiliates in violation of any applicable Laws. By using our Services, you represent and warrant that you are located in the United States of America. You will not engage in activity that would cause us to be in violation of any Law and will indemnify us for any fines, penalties or other liabilities incurred by us for your failure to comply with any applicable Law.
- Reservation of Rights. All rights not expressly granted to you in this Agreement are reserved and retained by us or our suppliers, rights holders, or partners. No part of our Services may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent.
- No Third Party Beneficiary. By accessing our Services, you certify that such access is for your own benefit and information, and that the Services are solely for your own personal use and not for any other Person. As used herein, “Person” shall include all natural persons, corporations, legal entity, and any of their/its directors, officers, agents, servants, employees, affiliates, subsidiaries, or partners.
- Indemnification.By entering into this Agreement and using our Services, you agree that you will indemnify, defend, and hold us harmless and our partners, equity holders, parent organizations, subsidiaries, and affiliates, and our respective directors, managers, officers, equity holders, agents, servants, employees, and attorneys (collectively, “Indemnified Parties”), from and against any and all claims, demands, causes of action, proceedings, losses, damages, fines, penalties, liabilities, judgments, orders, costs, and expenses (including reasonable attorneys’ fees and legal costs) sustained or incurred by or asserted against the Indemnified Parties by reason of, arising from, or in any way attributable to: (a) your violation or breach of any term of this Agreement or any applicable Law; (b) your violation of any rights of any third party; (c) your use or misuse of the Services; or (d) any negligence or wrongful act or omission of or by you or anyone acting on your behalf.
- DISCLAIMER OF CERTAIN WARRANTIES AND LIMITATION ON LIABILITY. We and our partners, owners, subsidiaries, and affiliates, and their respective managers, officers, agents, servants, and employees (the “CapSource Entities”) shall not be held liable for your use of our Services, any purchases using our Services, or any injury alleged to have been caused by either. We reserve the right to deny the sale or use of any Services, which we determine may or shall violate applicable Laws. The exercise of this right does not alleviate, amend, eliminate, or abridge your obligation to adhere to applicable Laws, nor does it impose an affirmative responsibility on us to verify your adherence to applicable Laws.YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF OUR SERVICES ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICES (INCLUDING ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES) ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS IN OUR SOLE DISCRETION, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS WITH RESPECT TO OUR SERVICES (INCLUDING THE USE, PERFORMANCE, AND SUPPORT THEREOF), EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT (A) OUR SERVICES WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF OUR SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT OUR SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, OR (D) DEFECTS IN OUR SERVICES WILL BE CORRECTED, EXCEPT AS WARRANTED IN THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY US OR OUR AUTHORIZED AGENTS OR REPRESENTATIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL ANY CAPSOURCE ENTITY BE LIABLE (I) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE OUR SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THIS AGREEMENT OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH OUR SERVICES OR THIS AGREEMENT AND WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF A CAPSOURCE ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (II) FOR ANY OTHER CLAIM, DEMAND, OR DAMAGES WHATSOEVER RESULTING FROM, OR ARISING OUT OF OR IN CONNECTION WITH, THIS AGREEMENT OR THE DELIVERY, USE, OR PERFORMANCE OF OUR SERVICES, INCLUDING ANY LOSS OF PROPERTY OR REVENUES OR ANY CLAIM, DEMAND, OR DAMAGES ARISING FROM ANY TRANSACTION THROUGH OUR SERVICES INITIATED OR COMPLETED BETWEEN US. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
If, for any reason, a court finds us liable for damages notwithstanding the foregoing, in no event shall the CapSource Entities’ total liability for all damages, arising out of or in connection with our Services or this Agreement, exceed the amount paid by you to us for your use or receipt of our Services during the prior 12 months. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
You agree that the above limitations of liability together with the other provisions in this Agreement that limit liability are essential terms of this Agreement and that we would not be willing to perform our Services or grant you the rights set forth in this Agreement but for your agreement to the above limitations of liability; you are agreeing to these limitations of liability to induce us to grant you the rights set forth in this Agreement.
- RESULTS NOT GUARANTEED.WE DO NOT GUARANTEE ANY RESULTS FROM USE OF THE SERVICES AND DO NOT ENDORSE ANY ADVICE OFFERED BY OTHER USERS THROUGH THE SERVICES. ANY STATEMENTS, GUARANTEES, OR OTHER INFORMATION THAT MAY BE PROVIDED TO YOU BY OTHER USERS OF THE SERVICES ARE SOLELY ATTRIBUTABLE TO THE USER. CAPSOURCE IS NOT LIABLE FOR ANY STATEMENTS OR GUARANTEES MADE BY OTHER USERS.
- Ownership. Our Services and their content, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information, and other materials, are protected under intellectual property, copyright, trademark, and other Laws. You acknowledge and agree that we and/or our licensors own all right, title, and interest in and to our Services (including any and all patent, copyright, trade secret, trademark, show-how, know-how, and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of our (or our licensors’) patents, patent applications, copyrights, trade secrets, trademarks, or other intellectual property rights on account of this Agreement or your use of our Services.Any and all (a) suggestions for correction, change, and modification to our Services and other feedback (including, but not limited to, quotations of written or oral feedback), information, and reports provided to us by you (collectively “Feedback”) and (b) improvements, updates, modifications, or enhancements, whether made, created, or developed by us or otherwise relating to our Services (collectively, “Revisions”), are and will remain our property or the owner of any Third Party Materials, as applicable. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title, or interest in our Services or in any such Feedback or Revisions. All Feedback and Revisions become our sole and exclusive property and we may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to us any and all right, title, and interest (including any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. At our request, you will execute any document, registration, or filing required to give effect to the foregoing assignment.
- Modifications. We may modify this Agreement at any time. Modifications become effective immediately upon your first access to or use of our Services after the “Last Revised” date at the end of this Agreement. Your continued access or use of our Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Agreement. If you do not agree with the modifications, then please uninstall and do not access or use our Services.
- Termination. This Agreement is effective until the earliest of the date that (a) you fail to comply with any term of this Agreement, (b) you cancel your profile/account, or (c) we terminate this Agreement and/or prohibit your access to our Services. We may suspend or terminate your account(s) or cease providing you with all or part of our Services at any time for any reason, with or without notice to you, including if we reasonably believe (a) you have violated this Agreement, (b) you create risk or possible legal exposure for us, or (c) our provision of our Services to you is no longer commercially viable. We will make reasonable efforts to notify you of such cessation or termination by the email address associated with your account(s) or the next time you attempt to access your account(s) or our Services. Upon termination, you will cease all use of our Services. Termination will not limit any of our other rights or remedies at Law or in equity. This Section 17 along with Sections 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21 and 22 shall survive termination or expiration of this Agreement for any reason.
- Taxes. You are solely responsible for any and all duties, taxes, levies, or fees (including any sales, use, or withholding taxes) imposed on or in connection with this Agreement by any authority.
- Injunctive Relief. You agree that a breach of this Agreement will cause us irreparable injury for which monetary damages would not be an adequate remedy and we shall be entitled to seek equitable relief in addition to any remedies we may have hereunder or at Law without a bond, other security, or proof of damages.
- Dispute Resolution – Arbitration, No Class Actions. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THIS AGREEMENT OR OUR SERVICES WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration Law apply to this Agreement.If you do not want to arbitrate disputes with us and you are an individual, you may opt out of this arbitration agreement by sending an email to [email protected] within 30 days of the earlier of the day you first access or use the Site, create a profile/account on the Services, or the day you first receive any of our Services.THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES) AND MUST FOLLOW THE TERMS OF THIS AGREEMENT AS A COURT WOULD.
If you intend to seek arbitration you must first send us written notice to our Customer Service Center of your intent to arbitrate (“Notice”). The Notice should be sent to us by any of the following means: (i) electronic mail to [email protected] or (ii) sending the Notice by U.S. Postal Service certified mail to 1 Bayport Lane North, Great Neck, NY 11023. The Notice must (x) describe the nature and basis of the claim or dispute; and (y) set forth the specific relief sought. If we do not reach an agreement to resolve the claim within 30 days after the notice is received, either of us may commence an arbitration proceeding. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules as modified by this Agreement, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.orgor by calling 1-800-778-7879. The number of arbitrators shall be one. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the terms of this Agreement. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. We will reimburse all AAA filing, administration, and arbitrator fees paid by you for claims totaling less than $10,000, unless the arbitrator determines that either the substance of your claim or the relief sought is improper or not warranted, as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), in which case the payment of all such fees shall be governed by the AAA Rules. In such case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. We will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claim or the relief sought is improper or not warranted. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence shall not apply to the paragraph below.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Further, you agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, and that if this specific proviso is found to be unenforceable, then the entirety of this arbitration clause shall be null and void. If for any reason a claim proceeds in court rather than in arbitration we EACH WAIVE ANY RIGHT TO A JURY TRIAL. We also both agree that you or CapSource may bring suit in court for injunctive relief, including to enjoin infringement or other misuse of intellectual property rights.
- Applicable Law, Venue, and Jurisdiction. By using any portions of our Services, or our Services as a whole, you agree that the Federal Arbitration Act, applicable federal Laws, and the Laws of the State of Delaware, without regard to principles of conflict of Laws, will govern this Agreement and any dispute of any sort that might arise between us.
- Miscellaneous. This Agreement may not be modified by you and may only be modified by CapSource. This Agreement will inure to the benefit of and will be binding upon each party’s successors and assigns. Our failure to enforce any right or provision of this Agreement shall not be deemed a waiver of such right or provision. We may assign this Agreement and the licenses granted hereunder but the foregoing may not be assigned by you without our prior express written consent. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided, that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in this Agreement will be deemed to constitute either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence. Section headings are not to be considered part of this Agreement and are included solely for convenience and are not intended to be full or accurate descriptions of the contents thereof. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. As permitted under applicable Law, all contracts to which you are a party and related to our Services should be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method as we may request and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. We both agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of this Agreement. Your use of our Services may also be subject to other local, state, national, or international Laws. You may contact us regarding our Services or this Agreement at: 1 Bayport Lane North, Great Neck, NY 11023, 1 (631) 729-0745, or by email to [email protected]. This Agreement sets forth the entire understanding of the parties with respect to the matters contained herein and there are no promises, covenants or undertakings other than those expressly set forth herein.
Last Updated: September 27, 2019