SERVICES & PRIVACY
Any controversy between Releasees, Indemnitees and any other participant and me regarding the enforcement, construction, application, performance or participation under this Agreement, and any claims arising out of or relating to this Agreement or its breach, shall be submitted to binding arbitration upon the written request of either party after the service of that request on the other party without resort to the courts. This is a self-executing Agreement. This event involves interstate commerce as participants, horses, and materials involved come from out of state. This arbitration agreement is made pursuant to and shall be governed both procedurally and substantively by and interpreted under the Federal Arbitration Act (9 U.S.C. § 1, et seq. the “F.A.A.”) to the exclusion of any inconsistent state law, regulation, judicial decision or arbitration service rule. As to all other substantive issues the Arbitrator shall follow and enforce California law to the extent not inconsistent with the F.A.A. The award of the arbitrator shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. The arbitrator shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, scope, enforceability, formation, execution, persons bound by, estoppel and waiver and all other issues based on, arising out of or related to this agreement to arbitrate, including without limitation, any claim that all or part of this agreement to arbitrate is unconscionable, unenforceable, void or voidable. This arbitration agreement applies on an individual participant basis and there shall be no mass or class arbitrations under this arbitration agreement. To the extent not inconsistent with the F.A.A., the arbitration shall be heard and determined through and under the rules of JAMS Dispute Resolution, located in the County of Orange, State of California, except there shall be a limit on all written discovery requests of any kind or nature of 20 and no more than two depositions, unless the arbitrator decides that the requesting party has shown that the failure to allow specified additional written discovery or depositions would constitute a lack of due process.
This arbitration agreement results in a waiver of any right to a court or jury trial. Before creating an account with the Company and accepting this Agreement, I have been given a reasonable opportunity to seek the advice of independent legal counsel concerning this arbitration agreement in particular, as well as this entire Agreement.
BINDING CLASS ACTION WAIVER
YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and the Company agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
By using the Site and/or Application, you can use our interactive platform to obtain various services (collectively, the "Services"). Our Services allow you to open an account, record information for future use, and, under your express direction, forward information to other services provided to and connected by you. We are always working on new ways to improve our Services.
We reserve the right to modify or change our Site, the Application or any of the Services, temporarily or permanently, with or without notice to you, and we are not obligated to support or update the Site, the Application or any Services. You acknowledge and agree that we shall not be liable to you or any third party in the event that we exercise our right to modify, change or discontinue the Site, the Application or any Services.
Certain features or services offered on or through the Site and Application may require you to open an account and set up a profile, providing certain personally-identifiable information, including but not limited to your name, your social security number or other tax identification number, your address, your email address, and certain information about your financial situation and risk preferences (collectively, your "Client Information"). We reserve the right to restrict certain areas of information on the Site and Application to such registered users. You agree that you will maintain and promptly update your Client Information to keep it true, accurate, current and complete.
We may offer you the ability to purchase subscriptions. Terms specific to a subscription will be disclosed to you at or prior to the time at which you purchase the subscription, and by purchasing the subscription you are agreeing to those terms.
If a subscription commences with a free trial or a promotional period, you will have the right to cancel the subscription prior to the end of the trial or period. If we do not provide you with an online cancellation mechanism, then you may exercise this cancellation right by contacting us. We will email you prior to the end of the free trial or promotional period to remind you that the trial or period is coming to an end, and to give you an opportunity to cancel before the commencement of the paid period. If you do not cancel, we will bill you at the end of the free trial or promotional period, and your subsequent cancellation rights will be in accordance with the terms specific to the subscription.
Your cancellation rights, and the mechanism via which you may notify us of your decision to cancel, will be disclosed to you at or prior to the time at which you purchase a subscription.
PROMOTIONS AND REFERRALS
USE AND RESTRICTIONS: INTELLECTUAL PROPERTY, SERVICE AND TRADE MARKS
The entire content of information on this Site or Application, all text, videos, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, artwork, algorithms, functionalities, features and computer code, including but not limited to design, structure, “look and feel” and arrangement of the content available on the Site or Application (collectively, “Content”) is owned and controlled by us and/or used under license or permission from the copyright owner, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws, and international intellectual property laws.
Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise.
You agree not to reproduce, distribute, display or create derivative works of any part of the Content or any information presented to You through the Content, in whole or in part. This prohibition includes unauthorized copying or distribution of any of the Content, framing content from the Content, or creating any unauthorized derivative work. The information contained in the Content may not, except under written license, be copied, reproduced, transmitted, displayed, performed, distributed, rented, sublicensed, altered, stored for subsequent use or otherwise used in whole or in part in any manner without the Company’s prior written consent, except to the extent that such use is authorized under U.S. or other intellectual property laws. The Company’s logos, images, service marks and trademarks used on the Website are owned property of the Company and may not be used without prior written consent of authorized officers of the Company.
The Company uses third party trademarks within the Content to identify the owners of those marks. Use of any third party trademark is meant only to identify the trademark owner and its goods and services, and is not intended to imply any association or sponsorship between the trademark owner and the Content. All third party trademarks and logos are the property of their respective owners.
USE AND RESTRICTIONS: CONTENT AND MATERIALS
USE AND RESTRICTIONS: INTELLECTUAL PROPERTY CLAIMS
We respect the intellectual property of others and ask that users of our Site, Application and Services do the same. In connection with our Site, Application and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing Materials and for the termination, in appropriate circumstances, of users of our Site, Application and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site, Application and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing Material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated copyright agent:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single on-line site are covered by a single notification, a representative list of such works at that site;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit xxx to locate the material;
(d) Information reasonably sufficient to permit xxx to contact You, such as an address, telephone number and e-mail address;
(f) A statement that You have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law;
and (g) A statement that the information in the notice is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
If You believe that Your other intellectual property or publicity rights have been infringed in any way by this Site, please provide a detailed description of the alleged infringement for further investigation via e-mail to email@example.com. The Company’s actions in receiving, investigating, or responding to Your e-mail shall not constitute the Company’s agreement or verification of Your claim(s) nor any admission of liability therefor. The Company makes no commitment, covenant, promise, warranty, representation, or guarantee that it will receive, review, investigate, or respond to Your claim within any particular time.
USE AND RESTRICTIONS: LINKS TO OTHER SITES
The Site, Application and Services contain links to other independent third-party web sites, and we provide links to third-party websites as part of the Services (in all cases “Linked Sites”). These Linked Sites are provided solely as a convenience to you and based upon your Client Information or the Content you elect to view. Such Linked Sites are not under our control, and we are not responsible for and do not endorse the content of such Linked Sites, including any products, information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites. Some of the content served by us will be from merchant sites, and sales through these sites may generate a commission payable to us. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of third party web sites, including, without limitation, Linked Sites and websites linking to the Site or Application. You should review applicable terms and policies, including privacy and data gathering practices, of third party web sites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
USE AND RESTRICTIONS: PERMITTED USES
(i) learn about the Program;
(ii) learn about the Program, transaction forwarding methods, and algorithms, the asset classes that have been assembled, and the assets that comprise those asset classes;
(iii) enter into the Agreements;
(iv) open an account to participate in the Program;
(v) forward transaction details in accordance with the Hedgehog Program Client Agreement with us;
(vi) assemble a portfolio;
(vii) modify your selected portfolio and your selection among the assets to the extent provided in your Hedgehog Program Client Agreement with us;
(viii) initiate requests to sell assets and withdraw money held on other services;
(ix) access statements and confirmations regarding transactions in connection and the value of your accounts with other services;
and (xi) make such other use of the Site and Application as we may expressly permit from time to time in furtherance of the objectives and growth of the Program.
USE AND RESTRICTIONS: PROHIBITED USES
You may not use the Site, Application or Services for illegal or unlawful or malicious activities, or for activities that we deem improper for any reason whatsoever in our sole judgment, including, without limitation, the laundering of proceeds of any unlawful activity, the financing of terrorism, the commission of fraud or market manipulation, the harassing or making disparaging comments to any user of the Site or Application. We reserve the right to take preventative or corrective actions to protect ourselves and our users. Your use of the Site, the Application and Services is conditioned in part on your compliance with the rules of conduct provided herein, and your failure to comply may result in termination of your access to and use of the Site, the Application and Services and liability for damages caused by your noncompliance. In addition to the foregoing, while using the Site, the Application and Services, you may not, except as may be expressly set forth above under “Permitted Uses”
(a) impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity, or use or provide any fraudulent, misleading or inaccurate information;
(b) defame, abuse, harass, stalk, intimidate, bully, threaten or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity;
(c) access or use (or attempt to access or use) another user’s account without permission, or solicit another user’s login information;
(d) transmit any software or materials that contain any viruses, worms, trojan horses, defects, or other items of a destructive nature;
(e) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Site, Application or Services;
(f) “frame” or “mirror” any portion of the Site, Application or Services;
(g) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Site, Application or Services;
(h) harvest or collect information about or from other users of the Site, Application or Services;
(i) use the Site, Application or Services for any illegal activity;
(j) probe, scan or test the vulnerability of the Site or Application, nor breach the security or authentication measures on the Site or Application or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or Application, such as a denial of service attack;
(k) send or otherwise post unauthorized commercial communications (such as spam);
(l) engage in unlawful multi-level marketing, such as a pyramid scheme;
(m) post content that is hateful, threatening or pornographic, incites violence, or contains nudity or graphic or gratuitous violence;
(n) access or use any portion of the Content if you are a direct or indirect competitor of the Company, or provide, disclose or transmit any portion of the Content to any direct or indirect competitor of the Company;
(o) use or distribute any Content, including Content that has been verified or confirmed by you or anyone else, to directly or indirectly create or contribute to the development of any database or product;
or (p) facilitate or encourage any violations of this Section.
WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY
DISCLAIMER OF WARRANTIES:
ALTHOUGH THE COMPANY MAKES EFFORTS TO PROVIDE AN ACCURATE SITE AND APPLICATION, THE SITE AND APPLICATION AND ALL RESPECTIVE PARTS THEREOF ARE PROVIDED “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE”. THE COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE MANAGING MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES AND THIRD PARTY SUPPLIERS (COLLECTIVELY, THE “COMPANY PARTIES”) DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (1) AS TO TITLE, MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, (2) THE QUALITY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE SITE, THE APPLICATION AND THEIR RESPECTIVE CONTENT, (3) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, (4) THE SITE AND APPLICATION AND THEIR RESPECTIVE CONTENT CONFORMING TO ANY FUNCTION, DEMONSTRATION OR PROMISE BY ANY COMPANY PARTY AND (5) THAT ACCESS TO OR USE OF THE SITE, THE APPLICATION OR THEIR RESPECTIVE CONTENT WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. ANY RELIANCE UPON THE SITE, THE APPLICATION AND THEIR RESPECTIVE CONTENT IS AT YOUR OWN RISK AND
THE COMPANY MAKES NO WARRANTIES. THE COMPANY RESERVES THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SITE, THE APPLICATION AND THEIR RESPECTIVE CONTENT OR ANY FEATURE OR PART THEREOF AT ANY TIME. IF YOU DOWNLOAD THE APPLICATION OR ANY CONTENT FROM THIS SITE, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT.
Your reliance upon the information available on the Site or Application or located through utilization of the Services and your interactions with third users identified through the Services is SOLELY AT YOUR OWN RISK. Your interactions with other users or advertisers, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other person or entity, and you agree that we will not be responsible for any loss or damage incurred as the result of any such dealings or with respect to any other person’s or entity’s use or disclosure of your personally identifiable information. If there is a dispute between you and any third party, we are under no obligation to become involved, and you agree that you will manage any such dispute or disagreement directly, and that you will not make any claims against us with respect to products or services purchased through your use of the Services.
The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet, mobile devices and electronic communications. We are not responsible for any delays, delivery failures or other damages resulting from such problems. We do not guarantee the Site, the Application or Services will be operable at all times. We reserve the right to do any of the following, at any time, without notice:
(1) to modify, suspend or terminate operation of or access to the Site, Application and Services, or any portion of the Site or Application;
(3) to interrupt the operation of the Site, Application and/or provision of Services, or any portion of the Site, Application or Services, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
LIMITATION OF REMEDIES
IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, APPLICATION OR THEIR RESPECTIVE CONTENT, WITH THE DELAY OR INABILITY TO ACCESS OR USE THE SITE, THE APPLICATION OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY CONTENT, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE OR OBTAINED THROUGH THE SITE, THE APPLICATION OR THEIR RESPECTIVE CONTENT, OR OTHERWISE ARISING OUT OF THE USE OR ACCESS OF THE SITE, USE OF THE APPLICATION OR USE OF THE SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
ANY SERVICES OR CONTENT MADE AVAILABLE OR OBTAINED THROUGH THE USE OF THE SITE OR THE APPLICATION, AND ALL OTHER USE OF THE SITE OR APPLICATION, IS DONE 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.
INDEMNIFICATION: CONTENT AND MATERIALS
You will indemnify and hold the Company and its Affiliates harmless with respect to any suits or claims arising out of
(ii) your fraudulent or malicious use of the Site, the Application and/or Services or your misuse or abuse of the Site, Application and/or Services;
(iii) your violation of applicable laws, rules or regulations in connection with your use of the Site, Application or Services, or
BINDING ARBITRATION AND APPLICABLE LAW
(Continued from Section titled “Binding Arbitration” above)
Arbitration shall be conducted by and submitted to a single arbitrator (“Arbitrator”) selected from and administered by the Orange, California office of JAMS (“JAMS”), in accordance with its then-existing Comprehensive Arbitration Rules & Procedures. The Arbitrator shall be authorized to award compensatory damages, but shall NOT be authorized to award non-economic damages such as for emotional distress, or pain and suffering or punitive or indirect, incidental or consequential damages. Each party shall bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator and JAMS; however, the Arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the Arbitrator.
Within fifteen (15) calendar days after conclusion of the arbitration, the Arbitrator shall issue a written award and a written statement of decision describing the material factual findings and conclusions on which the award is based, including the calculation of any damages awarded. Each party shall fully perform and satisfy the arbitration award within fifteen (15) days of the service of the award. Judgment on the award may be entered by any court of competent jurisdiction. By agreeing to this binding arbitration provision, you understand that you are waiving certain rights and protections which may otherwise be available if a claim or dispute were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of appeal, the right bring a claim as a class member in any purported class or representative proceeding, and the right to invoke formal rules of procedure and evidence.
Any notices to be given to the Company under these Terms shall be made in writing to firstname.lastname@example.org or to the following address:
HEDGEHOG TECHNOLOGIES, INC
Attn: Legal Department
2261 Market Street #4557 San Francisco, CA 94114
You agree that the Company can send You electronic notices to the e-mail address that You provided to the Company in creating Your Account or by displaying the notice on this Website. You agree that all notices, agreements, disclosures, and other communications that we provide to You electronically satisfy any legal requirement that such communications be in writing. You further agree that the Company may deliver notice to you by written communication delivered by first class U.S. mail or courier service to your address on record in Your Account.
The Services, Content, other technology we may make available, and derivatives thereof may be subject to laws and regulations of the United States and other jurisdictions. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise.