Terms & Conditions
Effective Date: 05/05/2019
This agreement contains disclaimers of warranties, limitations on liability, releases, a class-action waiver, and the requirement to mediate and arbitrate all claims that may arise under this agreement. These provisions are an essential basis of this agreement.
1. Acceptance of Agreement
This is an agreement between First Access Funding, a California limited liability company (the “Company”), the owner and operator of the website located at www.firstaccessfunding.com (the “Site”), and you, a user of the Site and the service. By accessing the Site and by using the service, you agree to this agreement for as long as you continue to use the Site or the service. If you do not agree with any of the terms, you must not use the Site or the service. You must not use the Site or the service, or accept this agreement, if (a) you are not of legal age to form a binding contract with the Company; (b) you are prohibited by law from receiving or using the service; or (c) you are not a U.S. resident.
2. Changes to Agreement
2.1 Right to Change Agreement
The Company may change this agreement (the “Updated Agreement”) on one or more occasions.
2.2 Notice of Updated Agreement
Unless the Company makes a change for legal or administrative reasons, the Company will provide reasonable notice before the Updated Agreement becomes effective. You acknowledge that the Company may notify you of the Updated Agreement by posting it on the Site.
2.3 Acceptance of Updated Agreement
Your use of the Site or the service after the effective date of the Updated Agreement constitutes your agreement to the Updated Agreement. You should review this agreement and any Updated Agreement before using the Site or the service. If you do not agree to the Updated Agreement, your sole remedy is to stop accessing the Site or using the service.
2.4 Effective Date of Updated Agreement
The Updated Agreement will be effective as of the time of posting, or any later date as may be stated in the Updated Agreement, and will apply to your use of the Site and the service from that point forward, except that changes will not apply to continuing disputes or disputes arising out of or relating to events happening before the effective date of the Updated Agreement.
1. The Service
3.1 Description of the Service
The Company provides a free matching service that connects small businesses and small business owners (for a business purpose as provided in section 4.2) with lenders and other sources of funding and business financing solutions providers (“third-party funding providers”). These third-party funding providers do not represent all loan companies or all types of offers available in the marketplace and include third-party affiliate, referral, marketing, and lead generation websites. The Company is not a lender or finance provider and does not underwrite, approve, fund, or collect on loans or other financial solutions. You may request provisional pre-qualification for funds using the service at any time by providing the Company information and documents, including business name and address, amount and intended purpose of funding sought, certain financial information and documents regarding the business, and certain information and documents regarding your business owner (the “application information”). You will provide complete and accurate application information. By providing the application information to the Company, you authorize the Company to obtain information, including from third-party sources, to allow you to verify certain fields of your application information and for background check purposes as described in section 3.2. The Company may obtain this information at any time during your use of the service until either you or the Company terminate its rights under this agreement under section 16.1. If any of the application information does not match information the Company obtains from third-party sources under this section 3.1, you may modify the application information. You acknowledge that the Company may contact you, including by telephone or by SMS, to verify the application information or to provide additional application information.
3.2 Background Checks
By providing application information to the Company, you authorize the Company or its authorized agent to perform an initial background check (and later periodic follow-up checks) on you and any of your directors and officers to help the Company to determine your suitability for business financing. Each background check may include a review of the following information, which you authorize and consent to: (a) your data; (b) credit history; (c) whether you, or any of your directors and officers, has any state or federal convictions and criminal records; (d) information publicly available about you or any of your directors and officers; (e) information that the Company obtains from third-party service providers, including information derived or prepared by third-party data aggregation and analysis companies; and (f) whether you, or any of your directors and officers, have ever filed for bankruptcy. You will cooperate with the Company concerning background checks and will promptly, on request, provide (or sign) any information, documentation, or consent that the Company may require to perform a background check. You are responsible for obtaining and maintaining the consent of your directors and officers for the Company to perform a background check on them (solely for the purposes set out in this agreement). You acknowledge that any failure to provide the preceding information and cooperation may preclude you from being matched with a third-party funding provider.
If your application information meets the pre-qualification criteria set by one or more third-party funding providers, the Company may identify that third-party funding provider or third-party funding providers to you (each one, a “matched third-party funding provider”), along with data regarding each third-party funding provider’s use of the service, including general details regarding amount of funding provided, interest rate, time between application for funding and fulfillment, and timing of repayment of funding (the “third-party funding provider details”). The Company may limit the number of third-party funding providers it identifies to you based on its determination of which third-party funding providers may be the best match for you based on the Company’s analysis of the application information. You may instruct the Company to identify you to one or more matched third-party funding providers, in which case the Company will identify you to those matched third-party funding providers and provide them with your application information on your behalf (each identification, a “referral”). You acknowledge that a referral does not guarantee you will receive funding from any matched third-party funding provider. You further acknowledge that the funding terms may differ from the terms that apply to funding you ultimately receive from a matched third-party funding provider.
3.4 Applying for Funding
Once the Company makes a referral to any matched third-party funding provider, the matched third-party funding provider will begin its underwriting process based on the application information and will determine, according to its own terms, whether to provide funding to you. You acknowledge that the Company has no role in a matched third-party funding provider’s decision to provide or not provide funding to you and that the Company provides the application information to the matched third-party funding provider on your behalf.
3.5 Information Sharing
3.6 Information Collection
The Company may monitor and record your telephone and electronic communications with the Company at any time, without further notice to you or any party to the communication. By submitting your information, you are expressly giving the Company permission to contact you, to record calls between you and the Company, and to share those recordings, if requested by third-party funding providers, to ensure the Company’s compliance in the advertising and marketing of the third-party funding providers products or services.
3.7 No Fees
The Company does not charge you any fee for the service. The Company receives compensation only from the third-party funding providers for referring users. The Company’s compensation from a third-party funding provider varies depending on the total funding provided. The Company does not control a third-party funding provider’s terms, but the Company uses reasonable efforts to identify the specific amount of any fees or interest rates charged to you by a third-party funding provider. The Company also makes a reasonable effort to minimize or eliminate any impact that compensation paid to it may have on your fees and interest rates. Ultimately, however, funding terms are solely within the third-party funding provider’s discretion.
The Company’s rights, duties, and obligations under this agreement may be exercised or performed by the Company or any of its affiliates, or any of their subcontractors or agents. The Company will be solely responsible for the acts or omissions of its affiliates, and any subcontractor or agent of the Company or any of its affiliates, related to the subject of this agreement. You will bring any claim or action arising out of or related to any act or omission of the Company or its affiliates, or any of their respective subcontractors or agents, related to the subject of this agreement, against the Company only, and not against any of its affiliates, or any subcontractor or agent of the Company or any of its affiliates. You acknowledge that under no circumstances will a third-party funding provider be considered an affiliate for purposes of this agreement.
1. Use of the Service
4.1 Use of Service in Accordance with Agreement and Applicable Law
You will not use the Site or the service for any illegal purpose. You will only use the Site or the service in accordance with this agreement and applicable law.
4.2 Business Purpose Only
While any person can access the Site, the service is only intended for use by businesses, companies, and organizations in the United States (if your business is not in the United States, you must not use the Site or the service). The service is not intended for use by individuals in their personal capacity. You will use the Site or the service for a bona fide business purpose only. You will not use the Site or the service for personal, family, or household purposes. An individual will only apply to use, and use, the service on behalf, and with the authorization, of a business. You will not use the Site or the service to obtain information about or make decisions about anyone but yourself and your business.
4.3 Truthful Information
You will provide complete and accurate information and only information that belongs to you. If your information becomes outdated or changes, it is your obligation to update that information. You will not use the Site or the service on behalf of another person or business, including the use of fictitious names or “seeds.”
1. Use of the Site
During this agreement, the Company hereby grants you a nonexclusive, nonsublicensable, nontransferable license to access and use the Site and its services in accordance with this agreement.
5.2 Intellectual Property Rights
The Site and its entire contents, features, and functionality (including all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement of it) are owned by the Company, its licensors, or other providers of the material and are protected by United States copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. The Company reserves all rights not expressly granted in the Site and the service. You will not engage in the use, copying, or distribution of any part of the Site or the services other than as expressly permitted.
The Company’s name and logo are the Company’s trademarks, and must not be copied, imitated, or used, in whole or in part, without the Company’s advance written permission. In addition, all page headers, custom graphics, button icons, and scripts are the Company’s service marks, trademarks, and trade dress, and must not be copied, imitated, or used, in whole or in part, without the Company’s advance written permission.
5.4 User Conduct
You will not engage in the following prohibited activities:
(a) copying, distributing, or disclosing any part of the Site in any medium, including by any automated or nonautomated “scraping”;
(b) using any automated system, including “robots,” “spiders,” “offline readers,” etc., to access the Site or the service;
(c) transmitting spam, chain letters, or other unsolicited email;
(d) use the Site or the service to collect email addresses for sending unsolicited emails;
(e) attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Site;
(f) taking any action that imposes, or may impose at the Company’s sole discretion an unreasonable or disproportionately large load on the Site infrastructure;
(g) uploading invalid data, viruses, worms, or other software agents through the Site;
(h) collecting or harvesting any personally identifiable information, including account names, from the Site;
(i) using the Site or the service for any commercial solicitation purposes;
(j) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
(k) interfering with the proper working of the Site;
(l) accessing any content on the Site through any technology or means other than those provided or authorized by the Site;
(m) bypassing any security measures the Company may use to prevent or restrict access to the Site or the service, including features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or its content;
(n) decipher, decompile, disassemble, reverse engineer, or otherwise try to derive any source code or underlying ideas or algorithms of any aspect, feature, or part of the Site or the services; or
(o) modify, translate, or otherwise create derivative works of any part of the Site or the services.
1. Your Account
6.1 Account Creation
To access parts of the Site, you may have to create an account. To create an account, you must provide the Company with accurate information as prompted by the registration form. You also must choose a password and a username.
6.2 Responsibility for Account
You are responsible for keeping the confidentiality of your password and account. Further, you are responsible for all activities that occur under your account. You will promptly notify the Company of any unauthorized use of your account or any other breach of security.
6.3 Liability for Account Misuse
The Company will not be liable for any loss you may incur because of someone else using your password or account, either with or without your knowledge. You could be held liable for losses incurred by the Company or another person due to someone else using your account or password.
6.4 Use of Other Accounts
You will not use anyone else’s account at any time.
1. Account Security
The Company cares about the integrity and security of your personal information. But the Company cannot guarantee that unauthorized third parties will never be able to defeat the Site’s security measures or use any personal information you provide to the Company for improper purposes. You acknowledge that you provide your personal information at your own risk.
2. User Content
8.1 Content Ownership
You retain all ownership rights to content uploaded to the Site.
8.2 Content License
By submitting content to the Site, you hereby grant the Company a worldwide, nonexclusive, sublicensable, and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the content in connection with the Site, the service, and the Company’s (and its successors’ and affiliates’) business, including for promoting and redistributing all or part of the Site (and derivative works of it) and the service in any media formats and through any media channels.
The Site may contain links to third-party websites or resources. You acknowledge that the Company is not responsible or liable for: (1) the availability or accuracy of those websites or resources; or (2) the content, products, or services on or available from those websites or resources. Links to third-party websites or resources do not imply any endorsement by the Company of those websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources. In addition, if any link is to a third-party funding provider, the Company acts solely as a referrer and does not guarantee or underwrite the products or services, including credit products, provided by that third-party funding provider. The Company has no role in, nor any liability for any decision made or product or service provided by that third-party funding provider.
2. Third-Party Content
Through the Site, you may have the ability to access or use content provided by third parties. The Company cannot guarantee that this third-party content will be free of material you may find objectionable or otherwise. The Company will not be liable for your access or use of any third-party content.
4. Changes to the Site; Availability
12.1 Although the Company may update the content on the Site on one or more occasions, the content is not necessarily complete or up-to-date. Any of the material on the Site may be out of date at any given time, and the Company is not required to update that material. If you believe you have found errors or omissions on the Site, you can bring them to the Company’s attention by emailing the Company at email@example.com.
12.2 While the Company will try to make sure that the Site is always available, the Company does not guarantee continuous, uninterrupted, or secure access to the Site. Many factors or circumstances outside of the Company’s control may interfere with or adversely affect its operation of the Site.
1. Reliance on Information Posted
13.1 The Company makes the information presented on or through the Site available for general information purposes only. The Company is not making any warranty about the accuracy or usefulness of this information. Any reliance you place on this information is strictly at your own risk. The Company will not be liable for any reliance placed on these materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.
13.2 The Site may include content provided by third parties, including materials provided by other users, third-party licensors, syndicators, or aggregators. All statements or opinions expressed in these materials, and all responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person providing these materials. These materials do not reflect the Company’s opinion. The Company will not be liable to you or any other person for the content or accuracy of any materials provided by any other person or entity.
1. Non-Endorsement; Passive Conduit
14.1 The Company does not sponsor, recommend, or endorse any third-party funding provider accessible by or through the Site or the service. The third-party funding providers accessible by and through the Site or the service pay the Company a referral fee for referring users of the Site and the service. The Company does not guarantee that users will successfully find business loans, equipment financing, or other loan-related products or services through the Site or the service.
14.2 You assume all risk when using the service, and with any interactions with third parties, including any third-party funding providers you are matched with. Further, the Company might not match every user with one or more third-party funding providers and does not guarantee its ability to help you obtain lending or other financial services.
14.3 Please use caution and common sense when using the Site and the service. The Company does not endorse the content or legality of any responses, statements, or promises made by third-party funding providers or any other parties featured on the Site or otherwise through the service.
14.4 Determining the need for business loans, equipment financing, or other loan-related products or services and the choice of loan-related service providers are critical decisions and should not be based solely on advertisements, claims of expertise, or cost offered by any third-party funding provider. The Company does not review the standing of any third-party funding provider with any regulatory authority or government agency. The Company is not making any statement regarding the status, standing, or ability of any third-party funding provider. When considering contracting with a third-party funding provider, you should check that third-party funding provider’s standing with applicable regulatory or government agencies.
14.5 The Company does not involve itself in the agreements between you and third-party funding providers or the actual provision of business loans, equipment financing, or other loan-related products or services in connection with the relationships created by it. The Company is not making any statement regarding the competency, trustworthiness, honesty, integrity, or behavior of either its users or third-party funding providers. Each user, and not the Company, is solely responsible for assessing the competency, trustworthiness, honesty, and integrity of all third-party funding providers that the user communicates with through the service.
1. International Users
The Company is located in Newport Beach, California. The Company is not making any statement that the Site or any of its content is accessible or appropriate outside of the United States. Access to the Site might not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for complying with all local laws.
16.1 Termination on Notice
Either party may terminate this agreement at any time by notifying the other party in writing.
16.2 Termination by the Company
The Company may terminate or suspend your access to or ability to use the Site or the service immediately, without notice or liability, for any reason or no reason.
16.3 Effect of Termination
On termination of your access to or ability to use the Site or the service, your right to use or access the Site or the service will immediately end. Termination of your access to and use of the Site or the service will not relieve you of any obligations arising or accruing before termination or limit any liability you otherwise may have to the Company or any third party.
16.4 Survival of Provisions
This agreement’s provisions that by their nature should survive termination will survive termination, including ownership provisions, warranty disclaimers, and limitations of liability.
1. Acknowledgments and Warranty Disclaimers
17.1 You acknowledge that the Company cannot and does not state that files or links available for downloading from the Internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for antivirus protection and accuracy of data input and output, and for keeping a means external to the Site for any reconstruction of any lost data. The Company will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that might infect your computer equipment, computer programs, data, or other proprietary material due to your use of the Site or any services or items obtained through the Site or to your downloading of any material posted on it, or on any website linked to it.
17.2 Your use of the Site, its content, and any services or items obtained through the Site is at your own risk. The Company provides the Site, its content, and any services or items obtained through the Site “as is,” “with all faults,” and “as available,” without making any warranty, either express or implied. The Company is not making any warranty (1) that the Site, its content, or any services or items obtained through the Site will be accurate, reliable, error-free, or uninterrupted; (2) that defects will be corrected; (3) that the Site or the server that makes it available is free of viruses or other harmful components; (4) that the Site or any services or items obtained through the Site will otherwise meet your needs or expectations; or (5) that the Site or the service will enable you to obtain business loans, equipment financing, or other loan-related products or services or realize any specific economic benefit.
17.3 The Company is not making any warranty, whether express, implied, statutory, or otherwise, including any warranty of merchantability, title, noninfringement, privacy, security, and fitness for particular purpose. No advice or information, whether oral or written, obtained from the Company, the Site, or elsewhere will create any warranty not expressly stated in this agreement. The Company is not making any guarantee or assuming any responsibility for any service advertised or offered by any third-party service relating to either the Company or any third-party funding provider. The Company is not making any guarantee about the number of third-party funding providers with whom you may be matched using the service, nor is the Company making any guarantee that you will be able to obtain business funding in any amount using the service, including from any third-party funding provider for whom your verified information provisionally pre-qualifies you for that funding. You acknowledge that the Company is neither a funding provider nor a financial provider, and the Company does not intend for anything on the Site to be a substitute for professional financial advice.
1. Limit on Liability; Release
18.1 The Company, its directors, officers, employees, agents, subsidiaries, affiliates, partners, licensors, content providers, and service providers will not be liable to you for the following:
(a) Errors, mistakes, or inaccuracies of content;
(b) Property damage resulting from your access to and use of the Site or the service;
(c) Any dispute between you and any users, third-party funding providers, or other third parties;
(d) Any products or services offered by any third-party funding provider;
(e) Failing to obtain business loans, equipment financing, or other loan-related products or services or realize any specific economic benefit;
(f) Your decision to accept any loan or financial service provided by any third-party funding provider;
(g) Content or conduct that is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing, defamatory, libelous, abusive, invasive of privacy, or illegal;
(h) Unauthorized access to or use of the Company’s servers and any personal or financial information stored in them, including unauthorized access or changes to your account, transmissions, or data;
(i) Interruption or cessation of transmission to or from the Site;
(j) Bugs, viruses, Trojan horses, malware, ransomware, or other disabling code that may be transmitted to or through the Site by any person or that might infect your computer or affect your access to or use of the Site or your other services, hardware, or software;
(k) Incompatibility between the Site and your other services, hardware, or software;
(l) Delays or failures you might experience in starting, conducting, or completing any transmissions to or transactions with the Site; or
(m) Loss or damage incurred from using any content posted, emailed, sent, or otherwise made available through the Site or the service.
18.2 You are solely responsible for your interactions with third-party funding providers. Because the Company is not involved in user interactions, if you have a dispute with one or more third-party funding providers or other users, you hereby release the Company, its directors, officers, employees, agents, subsidiaries, affiliates, partners, licensors, content providers, and service providers from all liability arising out of or relating to that dispute.
1. Exclusion of Damages; Exclusive Remedy
19.1 Unless caused by gross negligence or intentional misconduct, the Company, its directors, officers, employees, agents, subsidiaries, affiliates, partners, licensors, content providers, and service providers will not be liable to you for any direct, indirect, special (including so-called consequential damages), statutory, punitive, or exemplary damages arising out of or relating to (a) your access or your inability to access the Site, the service, or the content; (b) failing to obtain business loans, equipment financing, or other loan-related products or services or to realize any specific economic benefit; or (c) the conduct of you or anyone else in connection with the use of the service, including damages arising from your failure to provide the Company with accurate information or a third party’s failure to correctly verify that information. This exclusion applies regardless of the theory of liability and even if you told the Company about the possibility of these damages or the Company knew or should have known about the possibility of these damages.
19.2 The Company, its directors, officers, employees, agents, subsidiaries, affiliates, partners, licensors, content providers, and service providers will not be liable to you for any damages for (a) loss of revenue; (b) loss of profits; (c) loss of goodwill; (d) loss of business or anticipated savings; (e) loss of use; (f) loss of services; (g) loss of data; (h) loss of privacy; (i) cost of procurement of substitute goods and services; (j) computer failure related to your access of or your inability to access the Site, the service, or the content; or (k) reliance on any information obtained from the Site or the service. This exclusion applies regardless of the theory of liability and even if you told the Company about the possibility of these damages or the Company knew or should have known about the possibility of these damages.
19.3 If you are dissatisfied with the Site, the service, or have any other complaint, your exclusive remedy is to stop using the Site and the service. The maximum liability of the Company and its directors, officers, employees, agents, subsidiaries, affiliates, partners, licensors, content providers, and service providers to you for any claim will not exceed $100.
1. Scope of Disclaimers, Exclusions, and Limits
The disclaimers, exclusions, and limits stated in sections 17, 18, and 19 apply to the greatest extent allowed by law, but no more. The Company does not intend to deprive you of any mandatory protections provided to you by law. Because some jurisdictions may prohibit disclaiming some warranties, excluding some damages, or other matters, one or more disclaimers, exclusions, or limits might not apply to you.
21.1 In General
You will pay the Company, its directors, officers, employees, agents, contractors, subsidiaries, affiliates, partners, licensors, content providers, and service providers (the “Indemnified Parties”) for any loss of the Indemnified Parties’ that is caused by any of the following (whether actual or alleged): (a) your access to, use of, or inability to use the Site or the service; (b) your breach of this agreement; (c) your violation of any rights of a third party; (d) your interaction with any third-party funding provider; (e) any duties, responsibilities, or obligations you may have to a third-party funding provider, including with respect to a referral; (f) your violation of any applicable law; (g) the violation of any applicable law by a third-party funding provider; (h) your failure to provide and maintain complete and accurate application information; or (i) your tortious or criminal conduct. But you are not required to pay if the loss was caused by the Indemnified Parties’ actual intentional misconduct.
(a) “Loss” means an amount that the Indemnified Parties are legally responsible for or pay in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
(b) A loss is “caused by” an event if the loss would not have happened without the event, even if the event is not a proximate cause of the loss.
21.3 The Indemnified Parties’ Duty to Notify You
The Indemnified Parties will notify you before the 30th day after the Indemnified Parties know or should reasonably have known of a claim for a loss that you might be compelled to pay. But the Indemnified Parties’ failure to timely notify you does not end your obligation, except if that failure prejudices your ability to defend or mitigate losses.
21.4 Legal Defense of a Claim
The Indemnified Parties have control over defending a claim for a loss (including settling it), unless the Indemnified Parties direct you to control the defense. If the Indemnified Parties direct you to control the defense, you will not settle any litigation without the Indemnified Parties’ written consent if the settlement (1) imposes a penalty or limitation on the Indemnified Parties, (2) admits the Indemnified Parties’ fault, or (3) does not fully release the Indemnified Parties from liability. You and the Indemnified Parties will cooperate with each other in good faith on a claim.
21.5 No Exclusivity
The Indemnified Parties’ rights under this section 21 do not affect other rights the Indemnified Parties might have.
1. Dispute Resolution
22.1 Litigation Election
Either party may elect to litigate the following type of case or controversy: (a) an action seeking injunctive relief or (b) a suit to compel compliance with this dispute resolution procedure.
Each party will give the other a reasonable opportunity to comply before it claims that the other has not met the obligations under this agreement. The parties will first meet and negotiate with each other in good faith to resolve all disputes between the parties arising out of or relating to this agreement. The party raising a dispute will submit to the other party a written notice and supporting material describing all issues and circumstances related to the dispute (a “dispute notice”). A primary representative designated by each party will try to resolve the dispute.
If the parties’ primary representatives fail to resolve the dispute within 30 days after receiving a dispute notice, either party may, by notice to the other party and the American Arbitration Association, demand mediation under the Commercial Mediation Rules of the American Arbitration Association. Mediation will take place in Irvine, California. Each party will bear its own costs in mediation and the parties will share equally between them all third-party mediation costs unless the parties agree otherwise in writing. Each party will participate actively and constructively in mediation proceedings once started and will attend at least one joint meeting between the mediator and the parties. Any party may terminate mediation after an initial meeting between the mediator and the parties.
If the parties cannot fully settle a dispute through mediation, the parties will settle any unresolved dispute arising out of or relating to the subject of this agreement by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this agreement, including any claim that all or any part of this agreement is void or voidable.
Unless the parties agree otherwise, the arbitration will take place in Orange County, California.
Each party will be responsible for paying any filing, administrative, and arbitrator fees associated with the arbitration.
The award rendered by the arbitrator must include costs of arbitration, reasonable legal fees, and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
22.5 Injunctive Relief
Nothing in this section 22 will prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to the Site.
22.6 Jurisdiction and Venue
(a) If a party brings any proceeding authorized under section 22.1, that party will bring that proceeding only in the United States District Court, Southern District of California or in any state or local court in Orange County, California, and each party submits to the exclusive jurisdiction and venue of those courts for any proceeding.
(b) Each party waives any claim that any proceeding brought under section 22.6(a) has been brought in an inconvenient forum or that the venue of that proceeding is improper.
22.7 Recovery of Expenses
In any proceedings between the parties arising out of or relating to the subject of this agreement, the prevailing party will be entitled to recover from the other party, besides any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses. For purposes of this section 22.7, “prevailing party” means, for any proceeding, the party in whose favor an award is rendered, except that if in those proceedings the award finds for one party on one or more claims or counterclaims and for the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
22.8 Jury Trial Waiver
Both parties hereby waive the right to a trial by jury for any dispute arising out of or relating to the Site, the service, or this agreement. Either party may enforce this waiver up to and including the first day of trial.
22.9 Class Action Waiver
All claims arising out of or relating to this agreement must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless the Company agrees otherwise, the arbitrator must not consolidate more than one person’s claims.
22.10 Limitation on Time to Bring Claims
A party will not file a claim arising out of or relating to the Site, the service, or this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
23.1 Entire Agreement
This agreement constitutes the entire agreement between you and the Company about your access to and use of the Site and the service. It supersedes all earlier or contemporaneous agreements between you and the Company about access to the Site and use of the service. Each party acknowledges that the other has not made any representations, warranties, or agreements, except as expressly stated in this agreement. A printed version of this agreement will be admissible in any proceedings arising out of or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and kept in printed form.
23.2 Copy of this Agreement
You may—and the Company recommends that you—print this agreement on your printer or save it to your computer. If you have trouble printing a copy, please contact the Company at firstname.lastname@example.org and the Company will email you a copy.
23.3 Specific Terms Controlling Other Services and Products
The Company may provide other services and products besides the service. Additional terms for those other services or products will be presented to you before your acceptance of those terms and before your use of those services or products.
23.4 Assignment and Delegation
The Company may assign its rights or delegate any performance under this agreement without your consent. You will not assign your rights or delegate your performance under this agreement without the Company’s written consent. Any attempted assignment of rights or delegation of performance in breach of this section 23.4 is void.
23.5 No Waivers
The parties may waive any provision of this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
The parties intend as follows:
(a) that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
(b) that if an unenforceable provision is modified or disregarded under this section 23.6, then the rest of the agreement will remain in effect as written; and
(c) that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
(a) Sending Notice to the Company
You may send notice to the Company by email at email@example.com unless a specific email address is set out for giving notice. The Company will consider an email notice received by it only when its server sends a return message to you acknowledging receipt. The Company may change its contact information on one or more occasions by posting the change on the Site. Please check the Site for the most current information for sending notice to the Company.
(b) Sending Notice to You¬—Electronic Communications
You agree to the Company’s E-Sign Consent Agreement, which is incorporated by reference into this agreement as if it were contained in this agreement. The E-Sign Consent Agreement constitutes your consent to receive disclosures and other information in electronic form.
23.8 Governing Law
The laws of the state of California—without giving effect to its conflicts of law principles—govern all matters arising out of or relating to this agreement or the Site, including the validity, interpretation, construction, performance, and enforcement of this agreement. The predominant purpose of this agreement is providing services and licensing access to intellectual property and not a “sale of goods.”
23.9 Force Majeure
The Company is not responsible for any failure to perform if unforeseen circumstances or causes beyond the Company’s reasonable control delays or continues to delay the Company’s performance, including:
(a) Acts of God, including fire, flood, earthquakes, hurricanes, tropical storms, or other natural disasters;
(b) War, riot, arson, embargoes, acts of civil or military authority, or terrorism;
(c) Fiber cuts;
(d) Strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials;
(e) Failure of the telecommunications or information services infrastructure; and
(f) Hacking, SPAM, or any failure of a computer, server, network, or software.
23.10 No Third-Party Beneficiaries
This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
23.11 Relationship of the Parties
This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of these relationships between them. Neither party is the agent for the other, and neither party has the right to bind the other to any agreement with a third party.
23.12 Successors and Assigns
This agreement inures to the benefit of, and binds, the parties and their respective successors and assigns. This section 23.12 does not address, directly or indirectly, whether a party may assign rights or delegate obligations under this agreement. Section 23.4 addresses these matters.
23.13 Telephone Communications
23.14 Electronic Signatures
Any affirmation, assent, or agreement you send through the Site will bind you. You acknowledge that when you click on an “I agree,” “I consent,” or other similarly worded “button” or entry field with your mouse, keystroke, or other computer device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.
The Company encourages you to give feedback about the Company or the Site. But the Company will not treat as confidential any suggestion or idea you give, and nothing in this agreement will restrict the Company’s right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to you.
23.16 Contact Information
If you have questions about this agreement, the Site, or the service, you may contact the Company by email at firstname.lastname@example.org, by phone at (800) 320-0439.
In this agreement, the following usages apply:
(a) Actions permitted under this agreement may be taken at any time and on one or more occasions in the actor’s sole discretion.
(b) References to a statute will refer to the statute and any successor statute, and to all regulations promulgated under or implementing the statute or successor, as in effect at the relevant time.
(c) References to numbered sections in this agreement also refer to all included sections. For example, references to section 6 also refer to 6.1, 6.1(a), etc.
(d) References to a governmental or quasi-governmental agency, authority, or instrumentality will also refer to a regulatory body that succeeds to the functions of the agency, authority, or instrumentality.
(e) “A or B” means “A or B or both.” “A, B, or C” means “one or more of A, B, and C.” The same construction applies to longer strings.
(f) “Including” means “including, but not limited to.”
Terms & Conditions