Terms of Service
Last Updated: November 12, 2019
THESE TOS INCLUDE (1) AN ARBITRATION PROVISION AND WAIVER OF JURY TRIAL; (2) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US; AND (3) A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST US AND CERTAIN THIRD PARTIES THAT MAY ARISE OUT OF YOUR USE OF THE SITE. BY USING THE SITE, YOU AGREE TO THESE PROVISIONS.
1. General Terms and Conditions.
All use of the Platform is subject to the ToS and any Other Agreement (defined below) that you enter into with us. BY ACCESSING AND USING THE PLATFORM, YOU ACKNOWLEDGE, ACCEPT, AND AGREE TO THE TOS AND ALL OTHER TERMS, CONDITIONS, PROCEDURES AND POLICIES THAT MAY BE PUBLISHED FROM TIME TO TIME ON THE SITE BY US, EACH OF WHICH IS INCORPORATED BY REFERENCE. The ToS represents a binding contract between you and Neptune Financial Inc., its subsidiaries, affiliates, assignees and its and their officers, directors, employees and agents ("NepFin", "we", "us" or "our"), and are, in addition to any other agreements between you and NepFin, including any other agreements that govern your use of products, features, content, applications and services available on the Platform. Specifically, if you or the company that you represent enter into any other agreement with NepFin, such as a confidentiality agreement (each, an "Other Agreement"), the terms and conditions of the ToS are hereby incorporated into such Other Agreement by this reference as if fully stated therein. In the event of a conflict between the ToS and any Other Agreement, the terms of the Other Agreement shall control. If you are accessing the Platform on behalf of another entity or individual, you represent and warrant that you have the authority to agree to the ToS on such entity’s or individual’s behalf. If you do not agree with anything contained in the ToS, please do not submit information to, access information from, or otherwise utilize the Platform. NepFin reserves the right to change the ToS at any time without notice to you. Use of the Platform following the posting of any changes to the ToS shall be deemed to be acceptance thereof by you. In the ToS, we may refer to a customer/reader/entity as "you".
You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Platform. We may, in our sole discretion, refuse to offer the Platform to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that you may use the Platform under any laws applicable to you. The Platform is not intended to subject us to the laws or jurisdictions of any state, country, or territory other than the United States although the Platform may be compliant with such laws. If you do access and use any of the Platform outside the United States, you are responsible for complying with all applicable local, state, federal, national, provincial, foreign, and international statutes, treaties, regulations, rules, orders, and other laws with respect to such access and use.
You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s Account or registration information for the Platform without permission. You must notify us immediately of any change in your eligibility to use the Platform (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You must never publish, distribute or post login information for your Account and you must promptly inform us if you believe your Account or password has been compromised.
By registering for an Account, you hereby agree that we may deliver all notices, disclosures, documents, reviews, analyses, information, communications, or other materials, and any and all other documents, information, and communications concerning you or NepFin, including, without limitation, information, required or permitted to be provided to you under these Terms of Service or any other agreement between you and NepFin by means of email or by posting on the Site or by other means of electronic communication. You also consent to transact business and enter into binding legal agreements with us online and electronically.
You also hereby expressly consent to be contacted by us in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system at the telephone number provided by you in your Account, any other number subsequently provided by you, or any number at which we reasonably believe we can reach you (through skip trace, caller ID capture, or other means). You consent to receive SMS messages (including text messages), calls and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf, for any purpose in connection with the Platform and the services offered by NepFin. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voicemail, or send one via text. You represent that you are the owner or authorized user of any telephone number you provide. You represent that you are permitted to receive calls and/or messages at each of the telephone numbers you have provided to us. You agree to alert us whenever you stop using a particular telephone number. If you contact NepFin (including our agents, representatives, affiliates, third parties, or anyone calling on our behalf) by phone or NepFin (including our agents, representatives, affiliates, third parties, or anyone calling on our behalf) contacts you by phone, you agree that we may monitor and/or record the call for purposes including but not limited to quality assurance, training, risk management and/or collection purposes.
You understand and acknowledge that your carrier may charge fees for communications via text messaging, internet or telephone. Any and all fees are your sole responsibility. You also understand and agree that consent is not required as a condition of being considered for NepFin’s financial products. You may revoke your consent to receive communications via text at any time by calling or texting "STOP" to (415) 524-2198, emailing us at firstname.lastname@example.org, or contacting us by mail at Neptune Financial Inc., Legal Department, 600 Montgomery Street, Suite 260, San Francisco, CA 94111 USA.
5. Use of the Platform; Limitations; Acceptable Use.
The Platform involves the use of technology to facilitate lending and other financial transactions that is proprietary to NepFin. Using the Platform will require that you provide information determined by NepFin to be necessary to providing NepFin’s services, and that you confirm the correctness of information that has been pre-filled by NepFin. The information you provide may include publicly available information as well as confidential financial and business information.
NepFin is not involved in any actual transaction between buyers and sellers, and does not render investment or legal advice in connection therewith. None of the information submitted on the Platform constitutes a solicitation, offer, opinion, or recommendation by NepFin to buy or sell any securities or other financial instruments or to provide legal, tax, accounting, or investment advice or services regarding the suitability or profitability of any security of any kind, investment or transaction. NepFin has not made any recommendations regarding the merit of any transaction identified or enabled by NepFin or the Platform, or made any recommendation regarding the purchase or sale of any security, or endorsed or sponsored any company identified on the Platform. For that reason all users of the Platform agree to be responsible for their own due diligence and the legal and regulatory compliance of any transaction they enter into, and NepFin makes no representation or assurance about such compliance. ALL USERS OF THE PLATFORM ARE REQUIRED TO PROVIDE TRUE AND ACCURATE INFORMATION ABOUT THEIR BUSINESSES, AND TO UPDATE AND MAINTAIN SUCH INFORMATION, BUT NEPFIN CANNOT AND DOES NOT CONFIRM THE ACCURACY OF INFORMATION PROVIDED.
Under no circumstances may you (or permit any third party to) input any information or content that:
- you know is false, misleading, untruthful or inaccurate;
- constitutes junk mail, spam, chain letters, pyramid schemes or the like;
- is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, deceptive, fraudulent, invasive of another’s privacy, offensive, profane, hateful or is racially, ethnically or otherwise objectionable, as determined by us in our sole discretion, or otherwise violates the legal rights of others;
- you do not have the right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- infringes any patent, trademark, trade secret, copyright, right of publicity or other proprietary rights of any party or violates any law or contractual duty;
- impersonates any person or entity, including any of our employees or representatives; or
- contains software viruses or any other computer code, files, or programs that interrupt, destroy, gain access to or limit the functionality of any computer software or hardware, or telecommunications equipment.
You shall not: (a) take any action that imposes or may impose an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure, (b) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform, (c) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Platform (or other accounts, computer systems or networks connected to the Services), (d) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the website except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, (e) harvest or scrape any Content from the Platform, or (f) otherwise take any action in violation of our guidelines and policies.
You shall not (directly or indirectly): (a) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Platform (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (b) modify, translate, or otherwise create derivative works of any part of the Platform, or (c) copy, reproduce, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
NepFin reserves the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce the ToS, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of us, our users and the public.
NepFin reserves the right to edit, restrict or remove any content you provide for any reason or no reason at any time.
NepFin reserves the right, in its sole discretion, to refuse services, terminate Accounts, or take other action it deems appropriate for violating these ToS.
6. Intellectual Property; Copyright.
The contents of the Platform and any products or services provided or sold by NepFin, including the Platform’s look and feel, text, graphics, logos, button icons, images, audio and video clips (if any) and software, as well as the compilation of businesses, advisors, investors and lenders listed on the Platform ("Content"), are the property of NepFin or its content suppliers, and are subject to the copyright or other intellectual property rights of NepFin and to the terms of licenses held by NepFin. Such intellectual property is protected by federal and state law. You shall not use any metatags or other "hidden text" using NepFin’s name or trademarks.
Use License. Subject to the ToS, we grant each user of the Platform a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of accessing and using the Platform. Any unauthorized use, reproduction, modification, distribution, transmission, republication, display or performance of the Content and software on this Platform, or of any products or services sold by NepFin, is strictly prohibited. You may copy information from the Platform only as strictly necessary for your own use of the Platform. Otherwise, no portion of the Platform may be reproduced, duplicated, copied, sold, resold, licensed, rented or otherwise exploited for any commercial purpose that is not expressly permitted by NepFin. The commercial use or public dissemination of any information and data gathered from NepFin is strictly prohibited, unless specifically authorized in advance in writing. Any violation of the foregoing may subject you to compensatory and punitive damages, and shall specifically also entitle NepFin to equitable relief, in addition to any other available remedies.
User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Platform by users (collectively, "User Content"), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent and warrant that all User Content provided by you is accurate, complete, up-to-date, in compliance with all applicable laws, rules and regulations and you have all rights to provide the User Content and grant the licenses set forth in Section 6(iv), to us without infringement or violation of any third-party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
License Grant. By submitting any User Content to us, you grant NepFin a perpetual, worldwide, royalty-free, irrevocable, non-exclusive, sublicensable and transferable right to use, reproduce, modify, adapt, aggregate, publish, create derivative works of, display, perform, distribute and otherwise fully exploit such User Content, in any form or medium known or later developed (including, without limitation, third-party websites and feeds), in furtherance of NepFin’s (and our successors’ and assigns’) businesses, the terms of the ToS and the actions and transactions contemplated hereby, including after the termination of your Account or the Platform. Notwithstanding the foregoing, we shall only use your trademarks, service marks, logos or company name as specified in your Other Agreement or as specified in Section 16 of these ToS. You also hereby do and shall grant each user of the website and/or the Platform a non-exclusive, perpetual license to access your User Content through the website and/or the Platform, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after the termination of your Account or the Platform.
For clarity, the foregoing license grants do not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You agree that you will abide by and maintain all and will not and will not allow others to delete or alter, information, restrictions, author attributes or copyright notices contained in any Content accessed through the Platform. Nothing on the Platform or elsewhere should be construed to grant any license or right to use, implied or otherwise, any mark displayed on the Platform without the written permission of NepFin or the third-party owner of the mark.
Availability of Content. We do not guarantee that any Content will be made available on the Site or through the Services. NepFin reserves the right, in its sole discretion, to (i) remove, edit or modify any Content, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities that such Content infringes or appears to infringe on intellectual property rights owned by others or if we are concerned that you may have violated the ToS), for no reason at all and (ii) to remove or block any Content from the Platform.
Copyright Infringement. If you believe that any material contained in the Platform infringes your intellectual property, you should notify NepFin of the alleged infringement in accordance with the following procedure: Send any notification of claimed copyright infringement to email@example.com. To be effective, the notification must be in writing and include the following information: physical or electronic signature of the owner or authorized agent of the owner of the allegedly infringed work; identification of the allegedly infringed work; identification of the material that is claimed to be infringing and reasonably sufficient information for NepFin to locate the material; contact information of the notifying party, such as address, telephone number and email; a statement that the notifying party has a good faith belief that the use of the material in the manner complained of is not authorized by the owner of the allegedly infringed work, its agent or the law; and a statement, under penalty of perjury that the information in the notification is accurate and the notifying party is the owner or authorized agent of the allegedly infringed work.
7. Notification and Communication; Mobile Platform.
NepFin uses email to communicate with users. You hereby authorize and agree that NepFin may communicate with you via email and you consent to receiving any notice required under the ToS or any other agreement with NepFin via email. You agree that all agreements and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. NepFin will use reasonable efforts to honor any request you may have to opt out from receiving emails, but under no circumstance will NepFin have any liability for sending any email to you or to any of its customers. If you wish to withdraw your consent for us to communicate with you electronically, you may not use the Platform.
The Platform may include certain services that are available via a mobile device, including (i) the ability to upload content to the Platform via a mobile device and (ii) the ability to browse the Platform from a mobile device (collectively, the "Mobile Platform"). To the extent you access the Platform through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain elements of the Platform may be prohibited or restricted by your carrier, and not all aspects of the Mobile Platform may work with all carriers or devices. By using the Mobile Platform, you agree that we may communicate with you regarding we by electronic means and that certain information about your usage of the Mobile Platform may be communicated to us.
Notices relating to any dispute, disagreement, legal issue, or interpretation of these ToS should be sent by email to firstname.lastname@example.org and by a mailing or courier service that requires a signature to confirm receipt to the following address: Neptune Financial Inc., Legal Department, 600 Montgomery Street, Suite 260, San Francisco, CA 94111 USA.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd. Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
8. Hyperlink Policy.
9. Third Party Content.
Certain portions of the Platform, including, without limitation, information on certain private companies, may contain unedited or third party content. All postings, messages, text, images, links to third-party websites or other materials published or otherwise made available through the Platform (the "Third Party Content") are the sole responsibility of the person(s) who originated such Third Party Content and NepFin may not monitor, does not control and does not investigate or validate such Third Party Content; provided that NepFin reserves the right at all times (but will not have an obligation) to remove any Third Party Content. Any opinions, advice, statements, views, positions, services, offers, or other Third Party Content expressed or made available on the Platform are solely those of the respective authors or distributors, and do not necessarily reflect NepFin’s opinions, views, or position. We do not endorse any particular products or services. By using this Third Party Content, you agree to not rely on the Third Party Content and understand that you may be exposed to Third Party Content that is, without limitation, inaccurate, inappropriate, misleading, unlawful, offensive or otherwise objectionable, and that NepFin makes no representations or warranties regarding the Third Party Content and is not responsible or liable in any manner for the Third Party Content or the conduct, whether online or offline, of any user. The Third Party Content does not constitute legal or financial advice and must not be used in the place of legal counsel or financial due diligence. You should independently evaluate and verify all Third Party Content and rely on such content at your own risk.
10. Payments and Billing. Certain services on the Platform may be subject to payments now or in the future (the "Paid Services") as specified in your Other Agreement.
Billing. We may use a third-party payment processor (the "Payment Processor") to bill you through a payment account linked to your Account on the Platform (your "Billing Account") for use of the Paid Services. The processing of payments will be subject to any terms, conditions and privacy policies of such a Payment Processor in addition to the ToS. We are not responsible for error by a Payment Processor. By choosing to use Paid Services, you agree to pay us, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, to charge or have the Payment Processor charge, your chosen payment provider (your "Payment Method"). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment. Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about NepFin must be addressed to our agent for notice at the address set forth above. Regardless of which method is used, you must ensure that where available, a tracking service is used.
Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through a Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
We may terminate your access to all or any part of the Platform at any time as described in the Other Agreement. All provisions of the ToS which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
12. Disclaimer of Warranties; Limitation of Liability.
- ANY MATERIAL DOWNLOADED, ACCESSED OR OTHERWISE OBTAINED THROUGH THE PLATFORM IS OBTAINED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS THEREFROM. Although NepFin strives to maintain adequate cybersecurity and other safeguards designed to protect personal and confidential information on its computer systems, please be aware that no security measures are completely secure or impenetrable. We cannot guarantee that only authorized persons will view your information or that information you share on the Platform or via e-mail or other electronic communication with NepFin will not become publicly available or stolen or intercepted by third parties. BY YOUR CONTINUED USE OF THE PLATFORM, YOU ACKNOWLEDGE AND AGREE THAT NEPFIN AND ITS SERVICE PROVIDERS WILL NOT BE LIABLE FOR ANY HARM OR DAMAGE YOU MAY EXPERIENCE BY TRANSMITTING OR SUBMITTING PERSONAL OR CONFIDENTIAL INFORMATION TO NEPFIN THROUGH THE PLATFORM OR BY E-MAIL OR OTHER ELECTRONIC COMMUNICATIONS.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEPFIN AND ALL OF ITS THIRD-PARTY LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY (I) WARRANTIES OF TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AS TO THE PLATFORM, INCLUDING THE CONTENT, INFORMATION, DATA, SOFTWARE, OR PRODUCTS CONTAINED THEREIN, OR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF, (II) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND (III) WARRANTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS TO OR USE OF THE PLATFORM. NEPFIN PROVIDES THE PLATFORM AND ALL COMPONENTS THEREOF AND CONTENT THEREON ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK. NEPFIN MAKES NO GUARANTEES OR WARRANTIES OF ANY KIND AS TO THE SECURITY, ADEQUACY, COMPLETENESS, SUFFICIENCY, TIMELINESS OR ACCURACY, RELIABILITY, OF ANY CONTENT OR MATERIAL AVAILABLE IN OR THROUGH THE PLATFORM, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY. NEPFIN DISCLAIMS ALL EQUITABLE INDEMNITIES.
- TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, YOU HEREBY AGREE THAT ANY MONETARY CLAIMS OF ANY KIND ASSESSED AGAINST NEPFIN OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS ARISING OUT OF OR RELATING TO THE USE OF THE PLATFORM SHALL NOT EXCEED (IN AGGREGATE) THE GREATER OF (I) THE TOTAL AMOUNT YOU PAID TO NEPFIN FOR THE PLATFORM DURING THE PREVIOUS TWELVE (12) MONTHS OR (II) $500 IN THE AGGREGATE. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL NEPFIN OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS BE LIABLE TO YOU, OR TO ANY THIRD PARTY, FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, COMPENSATORY OR INDIRECT DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), EVEN IF ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE. THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO, LOSSES DUE TO ANY CONTENT, THE TRANSMISSION OF ANY VIRUSES WHICH MAY INFECT YOUR EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET PROVIDER), UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS, LOSS OF DATA, OR ANY FORCE MAJEURE. NEPFIN CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE PLATFORM.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that NepFin may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of liability of NepFin will be the minimum permitted under such applicable law.
13. Indemnity and Release.
You agree to release, indemnify and hold harmless NepFin, our affiliates, content providers and each of our and their respective officers, directors, agents, and employees, from and against any suit, action, claim, demand, penalty or loss, including reasonable attorneys’ fees, made by or resulting from any third party due to or arising out of your (or any third party using your Account or identity in the Platform) use or misuse of the Platform, User Content you submit to us, breach of the ToS or the materials it incorporates by reference, or violation of any law, regulation, order or other legal mandate or the rights of a third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
14. Choice of Law.
You will resolve any claim, cause of action or dispute (together a "claim") you have with NepFin arising out of or relating to the Platform or the ToS or your Other Agreement exclusively in the City and County of San Francisco, California, USA. The laws of the State of California will govern the ToS and your Other Agreement, as well as any claim that may arise between you and NepFin, without regard to conflict of law principles. In any dispute arising under the ToS or your Other Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and expenses.
15. Arbitration and Class Action Waiver
- YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THE TOS, YOUR USE OF THE PLATFORM, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY CONFIDENTIAL, BINDING, INDIVIDUAL ARBITRATION UNDER THE STREAMLINED ARBITRATION RULES AND PROCEDURES ("RULES") OF JAMS THEN IN EFFECT, BY ONE COMMERCIAL ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING INTELLECTUAL PROPERTY AND COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAMS ARBITRATORS IN ACCORDANCE WITH SUCH RULES, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our agent for notice set forth above. You may choose to have the arbitration conducted by telephone or video, based on written submissions, or at another mutually agreed location. Your arbitration fees and Your share of arbitrator compensation shall be governed by the applicable JAMS Rules. If such costs are determined by the arbitrator to be excessive, NepFin will pay all arbitration fees and expenses. You have the right to opt out of the provisions of this arbitration section by sending written notice of your decision to opt out to NepFin’s address set forth above, within 30 days after first becoming subject to the ToS. Your notice must include your name and address, the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this arbitration clause. If you opt out of this arbitration clause, all other parts of these ToS will continue to apply to you. Opting out of this arbitration clause has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with NepFin.
- As an alternative, you may bring your claim in your local "small claims" court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s Account, if we are a party to the proceeding.
- This section will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
- You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of Platform or the ToS must be filed within one (1) year after such claim of action arose or be forever banned.
- If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this section will be null and void. This section will survive the termination of your relationship with us.
16. Marketing of Names.
When you announce closed transactions via your website or press release or other broad disclosure methods, NepFin may disseminate its own release to its constituents indicating the use of the Platform in association with said transaction. NepFin may add your entity’s name and logo, if any, to NepFin’s Member roster, which is presented from time to time on its website and in marketing materials.
The ToS together with your Other Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter herein (excluding the terms and conditions of any other client agreement you may have entered into with NepFin). We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. You may not assign the ToS or the Other Agreement, or assign, transfer or sublicense your rights, if any, in the Platform without our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent. A failure to act with respect to a breach by you or others does not waive NepFin’s right to act with respect to subsequent or similar breaches. In the event that any provision or any portion of any provision of the ToS or your Other Agreement shall be held to be void or unenforceable, the remaining provisions of the ToS and your Other Agreement (and the balance of any provisions held void or unenforceable in part only) shall continue in full force and effect and the adjudicator shall endeavor to give effect to our intentions as reflected in the voided or unenforceable provisions. If you do not agree with any part of these terms and conditions, or you have a dispute or claim against NepFin or its supplier or affiliates with respect to the ToS or your Other Agreement you should immediately refrain from using the Platform. No agency, partnership, joint venture, fiduciary or employment relationship is created as a result of the ToS or your Other Agreement and neither party has any authority of any kind to bind the other in any respect.