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EnergyFunders LLC (“EF,” “we,” “us,” “our” or the “Company”) operate the website located at Energyfunders.com (the “Site”). The Company facilitates opportunities for qualified investors (“Investors”) to participate in Regulation D offerings focused on investing in energy-related assets. Among other things, EF offers web-based tools. EF also provides supplementary materials that educate Investors about the nature, process and perils of investing in energy assets. The services, features, content or applications that may be offered from time to time by EF in connection with the Site and/or EF’s business are collectively referred to as the “Services.
By accessing the Site and/or using the Services, you agree to be bound by all of the provisions of the Terms of Service (the “TOS”). IF YOU DO NOT ACCEPT AND AGREE TO ALL PROVISIONS OF THE TOS, OR IF YOU ARE NOT ELIGIBLE, YOU ARE NOT AUTHORIZED TO ACCESS THE SITE OR USE THE SERVICES.
This TOS provides that all disputes between you and EF will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a className action. Please review Section 15.3 (“Dispute Resolution”) for the details regarding your agreement to arbitrate any disputes with EF.
As used in the TOS, the terms “you” and “your” mean each individual or entity that accesses, browses or uses the Site and/or the Services in any manner. If you are accessing the Site and/or using the Services on behalf of an entity, you represent and warrant to EF that you have the authority to bind the entity you represent to the TOS. Your agreement to this TOS will be treated as the agreement of the entity you represent.
EF may modify the TOS or add or remove terms at any time, and each such modification, addition or deletion will be effective immediately upon posting on the Site. Your use of the Site or the Services following any such posted modification, addition or deletion constitutes your agreement to be bound by and your acceptance of the TOS as so modified. It is therefore important that you review the TOS regularly. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS OF THE MODIFIED TOS, YOU ARE NOT AUTHORIZED TO ACCESS THE SITE AND/OR USE THE SERVICES, AND YOU MUST IMMEDIATELY DISCONTINUE DOING SO
You may only use the Site and the Services if you are at least 18 years of age. If you are under the age of 18 or under the age of majority in the jurisdiction in which you are located, you may only use the Site and the Services under the supervision of a parent or legal guardian. You may not use the Site if you are under 18 years of age. EF reserves the right to require you to provide EF with proof of your age and, if applicable, approval of your use of the Site and the Services by your parent/legal guardian. EF may terminate your access to and use of the Site and the Services without warning if it determines that you do not meet the foregoing eligibility requirements.
In addition to the eligibility requirements in the TOS, your use of certain Services may be subject to eligibility requirements set forth in the Additional Terms.
4. Access to the Site and the Services
4.1 General Access.
Subject to your compliance with the Agreement, EF hereby grants to you a limited, non-transferable, non-exclusive right to access and use its proprietary, commercially available, hosted software product and related documentation via a Web-browser for use during the term of the Agreement. EF hosts and retains control over the software and only makes it available for access and use by you over the Internet through a Web-browser. Nothing in this Agreement obligates EF to deliver or make available any copies of computer programs or code from the software to you, whether in object code or source code form. You may not rent, lease, distribute, or resell the software, or use the software as the basis for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the software.
4.2 Registered Users In order to access or use certain Services you must become a “Registered User” by creating an account (an “Account”) and choosing a password that you will use to access your Account. By registering, you represent and warrant to the Company that all registration and other information you submit to or through the Site is truthful, accurate, current and complete, and you agree to immediately provide corrected information if any of the submitted information shall no longer be truthful, accurate, current and complete. You further represent and warrant that your use of the Site and the Services does not violate any applicable laws, rules or regulations. Without limiting any of EF’s other available legal remedies, if you provide any registration or other information that is untrue, inaccurate, or incomplete, or EF has reasonable grounds to suspect that such is the case, EF may immediately, and without notice to you, suspend or terminate your Account and refuse any and all use by you of the Site and the Services. Your registration on the Site and your use of the Site and the Services are void where prohibited.
You are solely responsible for safeguarding the confidentiality of your password and for any and all use of your Account and password, whether or not authorized by you. Although EF will not be liable for any of your losses that are caused by any unauthorized use of your Account, you may be liable for the losses of EF or others due to such unauthorized use. If you suspect any unauthorized use of your Account or unauthorized access to your password, please contact EF immediately at email@example.com. You do not have the right to transfer your Account to any individual or entity and EF reserves the right to remove or reclaim your Account if EF determines, in its sole discretion, that such action is appropriate under the circumstances. You agree that you will not create an Account for any individual other than yourself (or, if applicable, the entity you represent). As a Registered User, you agree that EF may electronically provide you (via email or postings or links on the Site) with invoices, documents, notices and other communications regarding the Site, the Services and/or your use thereof, as well as special offers, promotions, commercial advertisements, marketing materials, etc. You agree that EF may send the foregoing communications to you via your Account or any email address(es) which you provide to EF as part of your Account registration or otherwise.
5. Use of the Site and Services
5.1.1. You agree that you will use the Services solely in a manner consistent with this Agreement and the EF mission described above. You assume all risk when using the Site and the Services, and you acknowledge that the Company cannot guarantee and does not promise any specific results from your use of the Site and the Services.
5.1.2. While some of the Services relate to legal, tax, investment or accounting matters, neither we nor any of the professionals providing such content are providing professional advice to you, and you acknowledge that there is no professional relationship (including without limitation any attorney-client relationship) between you and any of the same, unless you and such party specifically agree otherwise.
5.1.3. The information and services provided on the Site are not provided to, and may not be used by, any person or entity in any jurisdiction where the provision or use thereof would be contrary to applicable laws, rules or regulations of any governmental authority or where EF is not authorized to provide such information or services. Some products and services described in the Site may not be available in all jurisdictions or to all users.
5.1.4. You represent and warrant to EF that: you own all rights in and to the content posted by you on, through or in connection with the Site or the Services (“User Content”), or otherwise have all the rights, power and authority legally required to grant EF the rights in your User Content pursuant to the TOS and the Additional Terms; and the posting of your User Content on or through the Site does not violate the TOS or violate the privacy rights, publicity rights, intellectual property rights (including, without limitation, copyrights and trademarks), contract rights or any other rights of any person or entity, whether or not such person or entity is depicted or appears/performs in your User Content. You agree that you are solely responsible for the User Content that you post on or through the Site and any material or information that you transmit to other users of the Site or the Services.
5.2 You agree that EF has the right to perform all technical functions necessary to offer the Services, including, but not limited to, processing and transmitting email communications to and from you, and transcoding and/or reformatting your User Content. You do not have the right to use, copy or distribute any of the content posted on the Site, except as expressly authorized by the TOS and the Additional Terms. Any violation by you of the forgoing prohibitions may result in the termination of your Account and your right to use the Site and the Services.
5.3 Your Conduct When Using the Site and the Services
5.3.1. As a condition of your access to the Site and use of the Services, you are prohibited from taking any action that would violate the content and conduct standards set forth in Section 6 below. In addition and not in limitation of the prohibited actions set forth in Section 6 below, you agree that you will not (a) employ any device, scheme, or artifice to defraud or (b) engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
5.3.2. EF reserves the right, but is under no obligation or duty, to at any time, and without notice, monitor activity on the Site to determine compliance with the TOS or to comply with any law, regulation or authorized government request. You hereby specifically agree to such monitoring. In the event that EF does monitor the Site or the Services, EF makes no representation or warranty that EF will take any action whatsoever in connection with any of the monitored activities and EF assumes no liability with respect thereto
5.4 Your Interactions with Other Users
5.4.1. EF uses various techniques to verify the accuracy of the information provided by users. However, in view of the limitations in verification on the Internet, EF cannot confirm the identity of users. We encourage you to use the various tools and content available on the Site, as well as elsewhere, to evaluate the users with whom you are dealing.
5.4.2. You acknowledge that there are risks of dealing with other users acting under false pretenses, and you assume the risks of liability or harm of any kind in connection with transactions of any kind relating to goods and/or services that are the subject of transactions using the Site. Such risks shall include, but are not limited to, misrepresentation of information about a user or a Startup, breach of warranty, breach of contract, and violation of third-party rights and consequent claims. You agree that EF shall not be liable or responsible for any damages, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise as a result of or in connection with any transactions with others using the Site.
6. Prohibited Content/Conduct.
As a condition of your access to the Site and use of the Services, you are prohibited from (i) posting, uploading, exhibiting, communicating or distributing content which violates any applicable laws, rules or regulations or which EF, in its sole and absolute discretion, deems to be inappropriate and (ii) engaging in conduct which violates any applicable laws, rules or regulations or which EF, in its sole and absolute discretion, deems to be inappropriate. Examples of such prohibited content and prohibited conduct include, without limitation, the following:
Posting, uploading or transmitting any content that violates any privacy right, publicity right, patent, trademark, trade secret, copyright or other proprietary right, or contract right or other right of any party;
Posting, uploading or transmitting any content or engaging in any conduct that is offensive, harmful, threatening, abusive, harassing, defamatory, libelous, or obscene or that is unlawful in any manner or that degrades, intimidates, promotes or incites racism, bigotry, hatred or physical harm of any kind against any group or individual, including, without limitation, on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
Posting, uploading or transmitting any content that is pornographic or that exploits people (adults or children) in a sexual or violent manner; or contains nudity, excessive violence, or offensive subject matter or that contains a link to any of the foregoing types of content or to an adult website or in any way using the Site or the Services in connection with any adult entertainment or pornography business;
Copying, reproducing, modifying (including, without limitation, altering, obscuring, deleting, etc. any copyright or other legally required notices, credits, logos, trademarks, etc.), creating derivative works from, or distributing in any manner or medium any content posted on the Site or through the Services in any manner that is in violation of the terms of the User Agreements or other applicable agreements;
Impersonating any person or entity, or submitting any materials to the Site or through the Services that are false, inaccurate, deceptive, misleading, unlawful, or are otherwise in violation of the TOS or the Additional Terms, including, without limitation, utilizing misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of any content transmitted to the Site or through the Services;
Except as explicitly permitted by the TOS and Additional Terms, or otherwise pre-approved in writing by EF, engaging in any commercial activity on the Site or including any links to commercial services or websites or uploading, posting or otherwise transmitting any content that contains advertising or any solicitation regarding products, goods or services;
Interfering with any user’s right to privacy; soliciting or collecting user names, passwords, emails, personal identifying information or other information from any user; engaging in conduct that poses or creates a privacy or security risk to any person; or posting private information about a third party;
Engaging in conduct that involves the posting, uploading or transmission of unsolicited or unauthorized advertising or promotional materials, “junk mail,” “chain letters,” unsolicited mass mailing, “spimming,” or “spamming”;
Engaging in any action or inaction that could disable, overload, impair the infrastructure of the Site or impair the proper functioning of the Site or the Services, including, without limitation, uploading, posting or otherwise transmitting any software or materials which contain a virus or other harmful or disruptive component; circumventing, altering or interfering with any computer software, or security-related features of the Site or the Services; or deciphering, decompiling, disassembling or reverse engineering any of the software comprising or in any way utilized in connection with the Site or the Services;
Accessing or attempting to access the Site or the Services using automated means (such as harvesting bots, robots, spiders, or scrapers) or gaining, or attempting to gain, unauthorized access to any servers, computer systems or databases utilized in connection with the Site or the Services;
Using the communication systems provided by the Site for any solicitation or other commercial purposes, except as explicitly permitted by the User Agreements or otherwise authorized by EF, or EF and the specific user, as applicable;
Uploading, posting or transmitting any content that advocates or provides instruction on illegal activity or communicating on or through the Site regarding illegal activities with the intent to commit them;
Making any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, in connection with the purchase or sale of any security; and
Engaging in any conduct that in EF’s sole discretion restricts or inhibits any other user from enjoying the use of the Site or any of the Services.
7. Pricing and Payment
EF reserves the right to charge fees for use of the Site or specific Services, and may change the fees that it charges. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and are non-refundable. You agree that, in addition to all other amounts payable under the TOS or the Additional Terms, you are responsible for paying all sales, use, value added or other taxes – federal, state or otherwise – however designated, that are levied or imposed by reason of your use of the Site and the Services. EF will charge the payment method you specify at the time of purchase. You authorize EF to charge all sums as described on the Site for the Services you select, to that payment method. If you pay any fees with a credit card, EF may seek pre-authorization of your credit card account prior to your transaction to verify that the credit card is valid and has the necessary funds or credit available to cover your transaction.
8. Proprietary Property.
8.1 EF Proprietary Property.
The Site and the Services are and contain proprietary property/content of EF (such as logos, copyrights, trademarks, technology, processes, etc.) (“EF Proprietary Property”) which may be protected by copyright, trademark, patent, trade secret and other laws. EF owns and retains all rights in and to the EF Proprietary Property. “EF” and the EF logo are trademarks of EF, Inc. EF hereby grants you a limited, revocable, nonsublicensable license to display and/or utilize the EF Proprietary Property solely for your use in connection with using the Site and the Services for the purposes (if any) authorized by the User Agreement. Except as explicitly permitted in the TOS or any Additional Terms, you do not have the right to use the EF Proprietary Property for any commercial use or to receive any monetary or other compensation in connection with the EF Proprietary Property. Except as expressly provided by the TOS or the Additional Terms, your use of the EF Proprietary Property is strictly prohibited.
8.2 Third Party Proprietary Property.
The Services may contain proprietary property/content provided by third party EF licensors (such as logos, copyrights, trademarks, etc.) (“Third Party Proprietary Property”). Unless otherwise expressly provided by the TOS or the Additional Terms, your use of the Third Party Proprietary Property is strictly prohibited.
8.3 Use of Proprietary Property
Unless expressly provided by the TOS or the Additional Terms, you may not copy, modify, edit, translate, publish, broadcast, transmit, distribute, perform, display, sell or otherwise use any EF Proprietary Property, any Third Party Proprietary Property or any other content appearing on or through the Site. You acknowledge that EF is not responsible for, does not control and makes no representation or warranty regarding the reliability, accuracy, usefulness, safety, legitimacy or quality of any content. EF does not endorse any content on the Site or any statement, opinion, suggestion or advice contained therein, and EF expressly disclaims any and all liability in connection therewith. You agree that you will bear any and all risk of reliance on the accuracy, validity or legitimacy of any content on the Site. You further understand and agree that in the course of your use of the Site and the Services, you may be exposed to content on the Site that is illegal, inaccurate, offensive, indecent or objectionable and you hereby waive, any legal or equitable rights or remedies you have or may have against EF with respect thereto.
9. Protecting Intellectual Property; Digital Millennium Copyright Act.
EF specifically prohibits users from uploading, embedding, posting, emailing, transmitting or otherwise making available on or through the Site or the Services any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. It is EF’s policy to terminate, under appropriate circumstances, the account of users who are determined to be repeat infringers.
9.2 DMCA Notification.
If you are a copyright owner or an agent thereof and believe that any content made available via the Site infringes upon your copyright, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing EF’s copyright agent (“Copyright Agent”) with the following information in writing: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Site (providing the URL(s) of the claimed infringing material satisfies this requirement); (c) information reasonably sufficient to permit EF to contact you, such as an address, telephone number, and, if available, an email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf; and (f) your physical or electronic signature. The contact information for the Copyright Agent to receive notifications of claimed infringement is: EF Resources, Inc., Attention: IP Counsel, 1900 W. Gray #130945, Houston, TX 77219 ; email: firstname.lastname@example.org.
If you feel that any of your content was improperly removed or made unavailable to other users, please contact EF’s Copyright Agent via the contact information set forth above.
10. Links to Third Party Sites.
The Site and the Services may contain links to independent third-party websites and/or services (collectively, “Linked Sites”). The Linked Sites are not under EF’s control, and EF does not endorse, is not responsible for and shall have no liability to you with respect to the business practices, privacy policies or content, materials, information, merchandise, products or services displayed, featured, mentioned, advertised, distributed or sold on or through such Linked Sites. By accessing a Linked Site, you may be disclosing your private information and be exposing yourself to content that you find disturbing. It is your responsibility to read and understand the privacy, membership, payment and other policies of the Linked Sites and to determine on your own whether or not you will have any interaction with any of the Linked Sites. EF encourages you not to provide any personally identifiable information to any Linked Site unless you know and are comfortable with the party with whom you are interacting. You agree that EF is not responsible for and shall have no liability to you, with respect to merchandise, products, and/or services advertised, featured, mentioned, sold, distributed, displayed or linked on or through the Site or the Services.
11. Submitted Ideas/Feedback.
All comments, suggestions, ideas, notes, drawings, concepts or other information disclosed or offered by you through the Site and the Services or in response to solicitations made through the Site or the Services (collectively, “Feedback”) is entirely voluntary and shall be deemed to be non-confidential and shall forever remain the sole property of EF. You understand and acknowledge that EF has both internal and external resources which may have developed, or may in the future develop, ideas, content, programming, etc. identical to or similar to your Feedback and you agree that EF will not incur any obligation or liability to you or otherwise as a result of (i) any such similarities or (ii) EF’s review of any of the Feedback. EF shall exclusively own, throughout the universe in perpetuity, and you hereby irrevocably assign, all rights of every kind and nature (whether currently existing or hereafter developed) in and to the Feedback and EF shall be entitled to unrestricted use of the Feedback for any and all purposes whatsoever, commercial or otherwise, without any payment or other obligation to you or any other person involved with the creation and/or submission to EF of the Feedback. You hereby waive any and all of your rights of droit moral and similar rights with respect to the Feedback.
12. Disclaimer; Exclusion of Warranties.
EF PROVIDES ITS USERS WITH A SELECTION OF SERVICES, TOOLS AND RESOURCES WITH THE GOAL OF CONNECTING ENTREPRENEURS WITH INVESTORS WHO MAY BE ABLE TO PROVIDE FINANCING, ADVICE AND OTHER SUPPORT TO THEIR COMPANIES. EF IS NOT A “BROKER,” “DEALER” OR “FUNDING PORTAL” (AS DEFINED IN SECTION 3(A) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED). EF DOES NOT ENDORSE ANY THIRD PARTIES, OR THIRD PARTY CONTENT, INCLUDING, WITHOUT LIMITATION, ANY STARTUP SEEKING TO RAISE CAPITAL THROUGH THE SITE OR USING THE SERVICES. EF MERELY SERVES AS A PLATFORM FOR INTERACTIONS BETWEEN ENTREPRENEURS OR COMPANIES AND INVESTORS. EF IS NOT INVOLVED IN THE ACTUAL TRANSACTIONS BETWEEN ENTREPRENEURS OR COMPANIES AND INVESTORS. EF IS NOT RESPONSIBLE FOR ANY INVESTMENT OR OTHER DECISIONS MADE BY ANY INDIVIDUAL OR ENTITY IN CONNECTION WITH ANY OPPORTUNITY POSTED ON OR THROUGH THE SITE OR THE SERVICES.
THE SITE AND THE SERVICES, AND ALL OF THE CONTENT, INFORMATION, COACHING, ADVICE, FEEDBACK AND MATERIALS POSTED ON OR PROVIDED BY OR THROUGH THE SITE OR THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE. BY USING THE SITE AND/OR THE SERVICES, YOU AGREE TO USE YOUR OWN JUDGMENT, CAUTION AND COMMON SENSE IN MANAGING ALL CONTENT, INFORMATION, COACHING, ADVICE, FEEDBACK AND MATERIALS OFFERED AND YOU AGREE THAT ANY USE YOU MAKE OF SUCH CONTENT, INFORMATION, COACHING, ADVICE, FEEDBACK OR MATERIALS IS AT YOUR OWN RISK. YOU ACKNOWLEDGE THAT EF DOES NOT EVALUATE OR GUARANTEE AND SHALL NOT BE RESPONSIBLE FOR THE, INFORMATION, COACHING, ADVICE AND/OR FEEDBACK SERVICES GIVEN THROUGH THE SITE OR THE SERVICES. EF IS NOT RESPONSIBLE FOR ANY DAMAGES OR LOSSES RESULTING FROM YOUR RELIANCE ON ANY OF THE FOREGOING CONTENT, INFORMATION, COACHING, ADVICE, FEEDBACK OR MATERIALS.
EF IS NOT RESPONSIBLE FOR AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY USER OR THIRD-PARTY CONTENT POSTED ON, THROUGH OR IN CONNECTION WITH THE SITE OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CONTENT THAT IS UNAUTHORIZED OR VIOLATES THE TOS OR THE ADDITIONAL TERMS, AND SUCH CONTENT DOES NOT NECESSARILY REFLECT THE OPINIONS OR POLICIES OF EF. UNDER NO CIRCUMSTANCES SHALL EF BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE SITE OR THE SERVICES, FROM ANY CONTENT POSTED ON THE SITE OR THROUGH THE SERVICES (WHETHER SUCH CONTENT VIOLATES THE TOS OR ADDITIONAL TERMS OR NOT), FROM ANY SERVICES OFFERED THROUGH THE SITE OR FROM THE CONDUCT OF ANY USER OF THE SITE OR THE SERVICES OR ANY USER OF ANY LINKED SITE (REGARDLESS OF WHETHER SUCH CONDUCT VIOLATES THE TOS OR ADDITIONAL TERMS, OR WHETHER SUCH CONDUCT IS ONLINE OR OFFLINE).
EF ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY OF YOUR COMMUNICATIONS ON OR THROUGH THE SITE. EF IS NOT RESPONSIBLE FOR ANY MALFUNCTION OR OTHER PROBLEM WITH ANY TELEPHONE NETWORK, TELEPHONE LINES, COMPUTER ONLINE SYSTEMS, SERVERS, INTERNET SERVICE PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, OR FAILURE OF ANY EMAIL OR PLAYERS, INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY OR PROPERTY DAMAGE. EF DOES NOT GUARANTEE ANY RESULTS (SPECIFIC OR OTHERWISE) FROM YOUR USE OF THE SITE OR THE SERVICES AND EF MAKES NO REPRESENTATION OR WARRANTY THAT THE SITE, THE SERVICES OR THE INFORMATION OR SERVICES PROVIDED THEREBY WILL MEET YOUR REQUIREMENTS. IF YOU ARE IN ANY WAY DISSATISFIED WITH THE SITE OR THE SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE YOUR USE OF THE SITE AND/OR THE SERVICES. EF DISCLAIMS ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION. BY ACCESSING THE SITE, YOU AGREE THAT EF SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION.
13. Limitation on Liability.
IN NO EVENT SHALL EF, ITS AFFILIATES, LICENSORS, SPONSORS, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES) RESULTING FROM (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT DISPLAYED ON THE SITE OR THROUGH THE SITE OR THE SERVICES, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND/OR USE OF (OR YOUR INABILITY TO ACCESS AND USE) THE SITE OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE CAUSED TO YOUR COMPUTER OR SOFTWARE OR INFORMATION STORED THEREON, (III) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OBTAINED ON OR THROUGH THE SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF EF SERVERS AND/OR ANY AND ALL PERSONAL AND/OR OTHER INFORMATION STORED THEREIN, (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE OR THROUGH THE SITE OR ANY OF THE SERVICES, (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE OR THE SERVICES BY ANY THIRD PARTY, (VII) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, (VIII) EMAILS OR OTHER TRANSMISSIONS OR COMMUNICATIONS MADE TO YOU THROUGH THE SITE OR THE SERVICES AND/OR (IX) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT OR SERVICES POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE OR THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EF IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. ANY LIMITATION OF LIABILITY IN THIS TOS OR ANY OTHER USER AGREEMENT SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION, BUT NO LIMITATION OF LIABILITY IN ANY USER AGREEMENT IS INTENDED TO LIMIT THE RIGHTS OF ANY PERSON UNDER FEDERAL AND STATE SECURITIES LAW.
You may terminate your account at any time by contacting EF at email@example.com. If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Services. If you violate any provision of this TOS, your permission from EF to use the Services will terminate automatically. In addition, EF may in its sole discretion terminate your user account for the Site or Services or suspend or terminate your access to the Site or Services at any time for any reason or no reason, with or without notice. EF also reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
15. Governing Law; Disputes; Arbitration.
15.1 Governing Law; Venue and Jurisdiction; Waiver of Jury Trial.
The User Agreements shall be governed by, and construed in accordance with, the laws of the State of Texas, without regard to its conflict of law provisions. If a lawsuit or court proceeding is permitted under a User Agreement, then you and EF agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Harris County, Texas for the purpose of litigating any dispute. EACH OF YOU AND EF HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH ANY USER AGREEMENT. FURTHER, EACH OF YOU AND EF HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE OTHER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF YOU AND EF ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR EACH OF THEM, RESPECTIVELY, TO ENTER INTO THIS TOS.
15.2 Disputes With Other Users.
You are solely responsible for your interactions with users of the Site and the Services, and any other parties with whom you interact on or through the Site, the Services and/or the Linked Sites. EF reserves the right, but has no obligation, to become involved in any way with these disputes.
15.3 Dispute Resolution.
15.3.1. Generally. In the interest of resolving disputes between you and EF in the most expedient and cost effective manner, and except as described in Section 15.3.2, you and EF agree that every dispute between you and any EF affiliate arising in connection with the User Agreements will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of any User Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this TOS. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS TOS, YOU AND EF ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.3.2. Exceptions. Despite the provisions of Section 15.3.1, nothing in any User Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; (d) to file suit in a court of law to address an intellectual property infringement claim; or (e) pursue any available remedies under federal or state securities law.
15.3.3 Arbitrator. Any arbitration between you and EF will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this TOS, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting EF.
15.3.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). EF’s address for Notice is: EF, Inc., 1 Broadway Cambridge MA 02142. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or EF may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or EF must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, EF will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by EF in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
15.3.5. Fees. If you commence arbitration in accordance with this TOS, EF will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Harris County, Texas, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse EF for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
15.3.6 No Class Actions. YOU AND EF 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 PROCEEDING. Further, unless both you and EF agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
15.3.7 Modifications to this Arbitration Provision. If EF makes any future change to this arbitration provision, other than a change to EF’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to EF’s address for Notice, in which case your account with EF will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.3.8. Enforceability. If Section 15.3.6 is found to be unenforceable or if the entirety of this Section 15.3 is found to be unenforceable, then the entirety of this Section 15.3 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15.1 will govern any action arising out of or related to any User Agreement.
You agree to defend EF, its subsidiaries, affiliates, licensors and assignees and their respective officers, directors, managers, stockholders, members, agents, partners and employees (the “EF Indemnitees”), from and against any and all claims, actions, suits, demands or other proceedings brought by or on behalf of any third party, and to indemnify and hold the EF Indemnitees harmless against any losses, liabilities and other damages (including, but not limited to, reasonable attorneys’ fees), in any case arising out of or related to (i) your access to and/or use of the Site and the Services, including, without limitation, your use of the Site and the Services in connection with any transaction in securities; (ii) a violation or breach by you, or any user of your account, of any provision of the TOS or of any Additional Terms, including, without limitation, a breach of any of the representations, warranties or agreements set forth in the TOS and the Additional Terms; and/or (iii) any content that you post on or through the Site or the Services. This defense and indemnification obligation will survive following the termination of your use of the Site and the Services.
17. Payment Functionality.
18. Other Terms.
EF has the right to assign the User Agreements and/or its rights thereunder, in whole or in part, to any third party. You do not have the right to assign the User Agreements, except if and to the extent explicitly permitted in the Additional Terms. The failure of EF to exercise or enforce any right or provision of the User Agreements shall not operate as a waiver by EF of such right or provision. The section titles in the User Agreements are for convenience only and have no legal or contractual effect. The User Agreements operates to the fullest extent permissible by law. If any provision of the User Agreements are held by a court or other tribunal of competent jurisdiction to be unlawful, void or unenforceable, such provision (i) is deemed severable from the User Agreements and does not affect the validity and enforceability of any remaining provisions which shall remain in full force and effect and (ii) shall be limited or eliminated to the minimum extent necessary to comply with the applicable law. EF reserves all rights in and to the Site, including the Services and the other content posted thereon, unless otherwise expressly provided by this TOS or the Additional Terms. EF reserves the right to modify or discontinue any aspect of the Services at any time without prior notice and without any liability to you.
19.Your Responsibilities as an Investor.
You are a self-directed investor who is individually responsible for determining the suitability of your investment decisions. EF is not responsible for the investment decisions made by you or on your behalf. EF is not responsible for the strategies, actions or inactions taken with respect to your EF Investments. EF is not responsible for the gains or losses you incur. The employees, agents and representatives of EF are not authorized to give you investment advice, and any instructions you receive from EF with respect to EF Investments will be limited to technical or administrative guidance.
You assume individual responsibility for determining the suitability of all investment decisions and strategies you make or implement. You must base your investment decisions upon all information reasonably available to you and your own assessment of risks and rewards. You are solely responsible for knowing the rights and terms for all investments you make in EF Investments.
For further information related to the risks associated with EF Investments, refer to the Investor Agreement.
20. Contacting EF; Reporting of Violations.
You may contact EF at firstname.lastname@example.org. Please report any misuse of the Site or the Services or any violation of the TOS by sending an email to EF at email@example.com.