True NorthReal Estate Wealth Management
Effective as of January 17, 2023
PLEASE BE AWARE THAT SECTION 13 OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND TRUE NORTH HAVE AGAINST EACH OTHER WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT. SECTION 13 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND TRUE NORTH BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THE AGREEMENT: (1) YOU AND TRUE NORTH WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) EACH OF US IS WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 1.3 (TRUE NORTH COMMUNICATIONS) OF THE AGREEMENT BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL.
TRUE NORTH DOES NOT PROVIDE ANY INVESTMENT ADVICE, OR OTHERWISE ACT AS A BROKER-DEALER, INVESTMENT ADVISER, MONEY TRANSMITTER, MONEY SERVICES BUSINESS, BANK ACCOUNT, BROKERAGE ACCOUNT, OR OTHER FINANCIAL ACCOUNT. TRUE NORTH IS IN NO WAY YOUR AGENT, ADVISOR, OR CUSTODIAN, AND WE DO NOT HAVE A FIDUCIARY RELATIONSHIP OR OBLIGATION TO YOU REGARDING ANY OTHER DECISIONS OR ACTIVITIES THAT YOU EFFECT WHEN USING OUR SERVICES. TRUE NORTH MERELY PROVIDES APLATFORM THAT CONNECTS USERS THAT ARE ACCREDITED INVESTORS (AS DEFINED BELOW) WITH ISSUERS OF SECURITIES RELATING TO REAL ESTATE INVESTMENTS, AND CERTAIN OTHER USERS WITH SELLERS OF REAL ESTATE ASSETS.
1) Use Of The Services
The Services, including True North’s content, innovations or its other proprietary elements made available on and through them are protected by copyright, trademark and other intellectual property laws throughout the world.
- 1.1 Updates. You understand that the Services are evolving. As a result, True North may require you to accept updates to the Services that you have installed on your device. You acknowledge and agree that True North may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use Services. In addition, you acknowledge and agree that True North may offer additional Services and product features, or add, change, or discontinue True North’s existing Services and product features at any time and in any region, with or without notice to you. If you are dissatisfied, your sole remedy is to stop using the Services or the affected feature.
- 1.2 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other content, images, text, page layout or form of True North; (c) you shall not use any metatags or other “hidden text” using True North’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of elements of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services 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); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (g) you shall comply with all applicable laws and regulations in relation to this Agreement and any Transaction, and you shall not use the Services for the purposes of insider trading, market manipulation, front-running or any other form of fraud or market abuse; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. True North, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Services terminates the licenses granted by True North pursuant to the Agreement.
1.3 True North Communications. By entering into the Agreement or using the Services, you agree to receive communications from us, including via e-mail. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, participation in our database of Accredited Investors, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning True North and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY E-MAILING [email protected]
- 2.1 Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who registered for an account on the Services (“Account”). True North is under no obligation to accept any individual as a Registered User and may accept or reject any registration in our sole and complete discretion. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of True North.
- 2.2 Registration Data. In registering an account on the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to (y) notify True North immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or True North has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, True North has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or social networking service at any given time. True North reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by True North, or if you have been previously banned from any of the Services.
- 2.3 Accredited Investors. For individuals who reside in the United States, to qualify as an “Accredited Investor,” individuals must have a net worth of more than $1 million (excluding their primary residence) or gross income for each of the last two years of at least $200,000 ($300,000 jointly with their spouse) with the expectation of a similarly qualifying income during the current year. In some cases, you may be required to provide supporting documents to issuers or third parties that prove you are an Accredited Investor. Such authorization may require the completion of an Accredited Investor questionnaire and satisfactory background information screening. In such case, your failure to provide any information and documentation requested to confirm your status as an Accredited Investor will be cause for the Company to immediately discontinue your use of the Services.
- 2.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
3) Responsibility For Content
- 3.1 Types of Content. You acknowledge that all Content is the sole responsibility of the party from whom such Content originated. This means that you, and not True North, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) to, on or through the Services (“Your Content”), and that you and other Registered Users of the Services, and not True North, are similarly responsible for all Content that you and they Make Available to, on or through the Services (“User Content”).
- 3.2 No Obligation to Pre-Screen Content. You acknowledge that True North has no obligation to pre-screen Content (including, but not limited to, User Content), although True North reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that True North pre-screens, refuses or removes any Content, you acknowledge that True North will do so for True North’s benefit, not yours. Without limiting the foregoing, True North shall have the right, without prior notice to you, to change, alter remove any Content, including Your Content, in whole or in part, that violates the Agreement or any applicable law or is otherwise objectionable. Further, True North reserves the right to investigate such violations, and True North may, at its sole discretion, immediately terminate your license to use the Services.
- 3.3 Storage. Unless expressly agreed to by True North in writing elsewhere, True North has no obligation to store any of Your Content that you Make Available on the Services. True North has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that True North retains the right to create reasonable limits on True North’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by True North in its sole discretion.
- 4.1 Services. Except with respect to Your Content and User Content, you agree that True North and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and True North software. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any of the Services.
- 4.2 Trademarks. “True North” and all related graphics, logos, service marks and trade names used on or in connection with any Services or in connection with the Services are the trademarks of True North and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
- 4.3 Your Content. True North does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
- 4.4 License to Your Content. Subject to any applicable account settings that you select on the Services, you grant True North a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, prepare derivative works, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Registered Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not True North, are responsible for all of Your Content that you Make Available on or in the Services. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by True North in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
- 4.5 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any chats, groups, forums, comments, or any other area on the Services, you hereby expressly permit True North to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
- 4.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to True North through its suggestion, feedback, wiki, forum, similar pages, or any other aspect of the Services (“Feedback”) is at your own risk and that True North has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to True North a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or True North’s business.
5) User Conduct
As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without True North’s prior written consent; (v) impersonates any person or entity, including any employee or representative of True North; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; or (vii) jeopardizes the security of your Account or anyone else’s Account (such as allowing someone else to log in to the Services as you); (viii) attempts, in any manner, to obtain the password, Account, or other security information from any other user; or (ix) attempts to engage in any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services. IN ADDITION TO THE FOREGOING PROHIBITED USES, BY OPENING AN ACCOUNT, YOU CONFIRM THAT YOU WILL NOT USE YOUR ACCOUNT TO DO ANY OF THE FOLLOWING: (1) ENGAGE IN ANY ACTIVITY WHICH WOULD VIOLATE, OR ASSIST IN VIOLATION OF, ANY LAW, STATUTE, ORDINANCE, OR REGULATION, IN THE LOCATIONS WHERE TRUE NORTH CONDUCTS BUSINESS, OR WHICH WOULD INVOLVE PROCEEDS OF ANY UNLAWFUL ACTIVITY OR PUBLISH, DISTRIBUTE OR DISSEMINATE ANY UNLAWFUL MATERIAL OR INFORMATION; (2) BUY ANY SECURITY, IN BREACH OF A FIDUCIARY DUTY OR OTHER RELATIONSHIP OF TRUST AND CONFIDENCE, WHILE IN POSSESSION OF MATERIAL, NONPUBLIC INFORMATION ABOUT THE SECURITY; OR (3) ENGAGE IN ANY ACTIVITY WHICH OPERATES TO DEFRAUD TRUE NORTH OR ANY OTHER PERSON OR PROVIDE ANY FALSE, INACCURATE, OR MISLEADING INFORMATION TO TRUE NORTH.
You agree to indemnify and hold True North, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “True North Party” and collectively, the “True North Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (i) Your Content; (ii) your use of, or inability to use, any aspect of the Services; (iii) your violation of the Agreement; (iv) your violation of any rights of another party, including any Registered Users; or (v) your violation of any applicable laws, rules or regulations. True North reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with True North in asserting any available defenses. This provision does not require you to indemnify any of the True North Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
7) Assumption Of Risk
- 7.1 INVESTING INVOLVES RISK, INCLUDING MARKET RISKS AND MACRO CONDITIONS SUCH AS INFLATION AND POLITICAL AND ECONOMIC RISK, AND INVESTMENTS MAY LOSE VALUE. BEFORE INVESTING, CONSIDER YOUR INVESTMENT OBJECTIVES, FINANCIAL RESOURCES, EXPERIENCE AND RISK TOLERANCE AND FEES RELATED TO INVESTING THROUGH THE SERVICES. PAST PERFORMANCE DOES NOT GUARANTEE FUTURE RESULTS. INVESTMENT OUTCOMES AND PROJECTIONS ARE HYPOTHETICAL IN NATURE AND CANNOT BE GUARANTEED. INVESTING IN REAL ESTATE ASSETS, AND IN SECURITIES REPRESENTING INTERESTS IN REAL ESTATE ASSETS, INVOLVES HIGHER RISKS THAN TRADITIONAL INVESTMENTS AND MAY HAVE DIFFERENT FINANCIAL AND/OR TAX IMPLICATIONS.
- 7.2 NEITHER TRUE NORTH NOR THE SERVICES IS INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT OR FINANCIAL ADVICE, OR AN OFFER, SOLICITATION OF AN OFFER OR ADVICE TO BUY SECURITIES. TRUE NORTH IS NOT (A) A REGISTERED EXCHANGE UNDER THE SECURITIES EXCHANGE ACT OF 1934, (B) A REGISTERED INVESTMENT ADVISER UNDER THE INVESTMENT ADVISERS ACT OF 1940, (C) A REGISTERED BROKER-DEALER UNDER THE SECURITIES EXCHANGE ACT IF 1934 OR (D) A FINANCIAL OR TAX PLANNER, AND DOES NOT OFFER LEGAL ADVICE TO ANY USER OF THE SERVICES. ALTHOUGH THE SERVICES MAY PROVIDE DATA, INFORMATION, OR CONTENT RELATING TO INVESTMENT STRATEGIES AND/OR COMMUNICATIONS FACILITIES USED TO HELP FACILITATE THE SALE OF SECURITIES, YOU SHOULD NOT CONSTRUE ANY SUCH CONTENT AS TAX, LEGAL, FINANCIAL, OR INVESTMENT ADVICE. ANY DECISIONS BASED ON THE INFORMATION CONTAINED IN THE SERVICES ARE THE SOLE RESPONSIBILITY OF THE USER OF THE SERVICES. THE SECURITIES MADE AVAILABLE THROUGH OR DISCUSSED ON THE SERVICES, REPRESENTING INTERESTS IN VARIOUS REAL ESTATE ASSETS, MAY NOT BE SUITABLE FOR ALL INVESTORS. TRUE NORTH MAKES NO REPRESENTATIONS THAT SUCH SECURITIES ARE AVAILABLE TO OR APPROPRIATE FOR INVESTORS OR USERS IN ALL JURISDICTIONS OR LOCATIONS, NOR THAT ANY INVESTMENT VEHICLE IS AVAILABLE OR SUITABLE FOR ANY PARTICULAR USER OR PURPOSE. ALL USERS ACCESSING THE SERVICES DO SO ON THEIR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH APPLICABLE LAWS.
- 7.3 YOU (A) HAVE THE NECESSARY TECHNICAL EXPERTISE AND ABILITY TO REVIEW AND EVALUATE THE SECURITY, INTEGRITY AND OPERATION OF YOUR INVESTMENTS, OR HAVE OBTAINED APPROPRIATE PROFESSIONAL ADVICE TO PROTECT YOUR INTERESTS, INCLUDING ANY LEGAL, ACCOUNTING, FINANCIAL OR OTHER RELEVANT ADVICE; (B) HAVE THE KNOWLEDGE, EXPERIENCE, UNDERSTANDING, PROFESSIONAL ADVICE AND INFORMATION TO MAKE YOUR OWN EVALUATION OF THE MERITS, RISKS AND APPLICABLE COMPLIANCE REQUIREMENTS UNDER APPLICABLE LAWS OF ANY INVESTMENT; (C) KNOW, UNDERSTAND AND ACCEPT THE RISKS ASSOCIATED WITH ANY INVESTMENT IN REAL ESTATE ASSETS OR SECURITIES REPRESENTING INTERESTS IN REAL ESTATE ASSETS; AND (D) ACCEPT THE RISKS ASSOCIATED WITH INVESTING GENERALLY, AND ARE RESPONSIBLE FOR CONDUCTING YOUR OWN INDEPENDENT ANALYSIS OF THE RISKS SPECIFIC TO EACH INVESTMENT. YOU FURTHER AGREE THAT TRUE NORTH WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR, SUCH RISKS. YOU TRUE NORTHBY IRREVOCABLY WAIVE, RELEASE AND DISCHARGE ALL CLAIMS, WHETHER KNOWN OR UNKNOWN TO YOU, AGAINST THE TRUE NORTH PARTIES RELATED TO ANY OF THE RISKS SET FORTH TRUE NORTHIN. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “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.” THE FOREGOING RELEASE DOES NOT APPLY TO ANY CLAIMS, DEMANDS, OR ANY LOSSES, DAMAGES, RIGHTS AND ACTIONS OF ANY KIND, INCLUDING PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE FOR ANY UNCONSCIONABLE COMMERCIAL PRACTICE BY A TRUE NORTH PARTY OR FOR SUCH PARTY’S FRAUD, DECEPTION, FALSE, PROMISE, MISREPRESENTATION OR CONCEALMENT, SUPPRESSION OR OMISSION OF ANY MATERIAL FACT IN CONNECTION WITH THE WEBSITE OR ANY SERVICES PROVIDED HEREUNDER.
- 7.4 TRUE NORTH’S INVESTMENT OPPORTUNITIES DO NOT CONSTITUTE INVESTMENT ADVICE ON TRUE NORTH’S PART. THE TRUE NORTH PARTIES ARE NOT INVESTMENT OR FINANCIAL ADVISERS. IF YOU MAKE DECISIONS IN RELIANCE ON INFORMATION WHICH IS AVAILABLE ON THE PLATFORM OR AS A RESULT OF THE USE OF THE SERVICES, YOU DO SO AT YOUR OWN RISK, AND THE TRUE NORTH PARTIES WILL NOT BE LIABLE FOR ANY LOSSES THAT YOU MAY SUSTAIN. YOU SHOULD NOT MAKE ANY TRANSACTIONAL DECISION WITHOUT FIRST CONDUCTING YOUR OWN RESEARCH. YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR DETERMINING WHETHER ANY TRANSACTION, STRATEGY OR ANY OTHER PRODUCT OR SERVICE IS APPROPRIATE OR SUITABLE FOR YOU BASED ON YOUR OWN OBJECTIVES AND PERSONAL AND FINANCIAL SITUATION.
8) Disclaimer Of Warranties and Conditions
- 8.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TRUE NORTH PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
- TRUE NORTH PARTIES MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, CLAIMS, AND ASSURANCES AS TO ANY INVESTMENT OR TRANSACTION. WE DO NOT ENDORSE ANY REGISTERED USERS OR INVESTMENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, TRUE NORTH IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITIES FOR REFERENCES TO OR INCLUSION OF SECURITIES WITHIN CONTENT. CONTENT MADE IN ASSOCIATION WITH ANY TRADE OR SECURITY DOES NOT REPRESENT A SOLICITATION OR RECOMMENDATION BY TRUE NORTH TO BUY OR SELL ANY SECURITY OR ADOPT ANY INVESTMENT STRATEGY.
- TRUE NORTH PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. TRUE NORTH MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TRUE NORTH OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- 8.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT TRUE NORTH PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD TRUE NORTH PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. TRUE NORTH MAKES NO WARRANTY THAT THE INFORMATION, GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
- 8.3 Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for True North to monitor such materials and that you access these materials at your own risk.
9) Limitation Of Liability
- 9.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL TRUE NORTH PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, SECURITY, OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT TRUE NORTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO, THROUGH THE SERVICES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (E) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A TRUE NORTH PARTY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY A TRUE NORTH PARTY’S NEGLIGENCE; OR FOR (II) ANY INJURY CAUSED BY A TRUE NORTH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- 9.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, TRUE NORTH PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) $100;OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TRUE NORTH PARTY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY A TRUE NORTH PARTY’S NEGLIGENCE; OR FOR (II) ANY INJURY CAUSED BY A TRUE NORTH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- 9.3 User Content. EXCEPT FOR TRUE NORTH’S OBLIGATIONS UNDER APPLICABLE LAW TO PROTECT YOUR PERSONAL DATA, TRUE NORTH ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
- 9.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- 9.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TRUE NORTH AND YOU.
10) Monitoring and Enforcement
True North reserves the right (but has no obligation) to:(a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for True North; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.
If True North becomes aware of any possible violations by you of the Agreement, True North reserves the right to investigate such violations. If, as a result of the investigation, True North believes that criminal activity has occurred, True North reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. True North is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in True North’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of True North, its Registered Users or the public, and all enforcement or other government officials, as True North in its sole discretion believes to be necessary or appropriate.
11) Term and Termination
- 11.1 Term. The Agreement commences on the earlier to occur of (a) the date you first use the Services; or (b) the date you accept the Agreement (as described in the preamble above), and will remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
- 11.2 Termination of Services by True North. True North is free to terminate (or suspend access to) your use of the Services for any reason in our discretion, including your breach of this Agreement, or for reasonable suspicion of fraud, diminished capacity or other inappropriate activity. True North has the sole right to decide whether you are in violation of any of the restrictions set forth in this Agreement. True North will not have any liability whatsoever to you for any suspension or termination.
- 11.3 Termination of Services by You. If you want to terminate the Services provided by True North, you may do so by (a) notifying True North at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to True North’s address set forth below.
- 11.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. True North will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- 11.5 No Subsequent Registration. If your registration(s) with, or ability to access, the Services, is discontinued by True North due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, True North reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
12) International Users
The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that True North intends to announce such Services or Content in your country. The Services are controlled and offered by True North from its facilities in the United States of America. True North makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
13) Dispute Resolution
Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and True North arbitrate disputes with one another. PLEASE BE AWARE THAT THIS SECTION 13CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND TRUE NORTH HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 14INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND TRUE NORTH BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 13 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 13 CAREFULLY.
- 13.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and True North agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (a) you and True North may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (b) you or True North may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.
- 13.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and True North. If that occurs, True North is committed to working with you to reach a reasonable resolution. You and True North agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and True North therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to True North that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [email protected] or regular mail to our offices located at: True North Companies, LLC, 7373 Doubletree Ranch Rd., Suite 200, Scottsdale, AZ 85258.
The Notice must include:
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
- your name, telephone number, mailing address, e‐mail address associated with your account (if you have one);
- the name, telephone number, mailing address and e‐mail address of your counsel, if any; and
- a description of your Dispute.
- 13.3 Waiver of Jury Trial. YOU AND TRUE NORTH HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and True North are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the Section 13.1 above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- 13.4 Waiver of Class or Other Non-Individualized Relief. YOU AND TRUE NORTH AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 13.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Section 13.9. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section 13.4 are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and True North agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Maricopa County in the State of Arizona. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or True North from participating in a class-wide settlement of claims.
- 13.5 Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and True North agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include:
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that:
- the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account;
- a statement of the legal claims being asserted and the factual bases of those claims;
- a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars;
- a statement certifying completion of the Informal Dispute Resolution process as described above; and
- evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
Unless you and True North otherwise agree, or the Batch Arbitration process discussed in Section 13.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
- the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution;
- the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and
- the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
You and True North agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
- 13.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Florida and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under Section 13.9 is triggered, JAMS will appoint the arbitrator for each batch.
- 13.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (a) all Disputes arising out of or relating to the such Section 13.4, including any claim that all or part of the such Section 13.4 is unenforceable, illegal, void or voidable, or that such Section 13.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (b) except as expressly contemplated in the Section 13.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (c) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (d) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator.The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the Section 13.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. 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. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
- 13.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or True North need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
- 13.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and True North agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against True North by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (a) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (b) appoint one arbitrator for each batch; and (b) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by True North.
You and True North agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
- 13.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: True North Companies, LLC, 7373 Doubletree Ranch Rd., Suite 200, Scottsdale, AZ 85258, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your True North account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms of Service will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- 13.11 Invalidity; Expiration. Except as provided in the Section 13.4, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with True North as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
- 13.12 Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if True North makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to True North at: True North Companies, LLC, 7373 Doubletree Ranch Rd., Suite 200, Scottsdale, AZ 85258, your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes.Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. True North will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
14) Third-Party Services
The Services may contain links to third-party websites, applications, and advertisements for third parties (“Third-Party Services”) or may, in some cases, integrate them with our Services. When you click on a link to or access or use a Third-Party Service, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of True North. True North is not responsible for any Third-Party Services. True North provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
15) General Provisions
- 15.1 Electronic Communications. The communications between you and True North may take place via electronic means, whether you visit the Services or send True North e-mails, or whether True North posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from True North in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that True North provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
- 15.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without True North’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- 15.3 Force Majeure. True North shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- 15.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: [email protected] We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- 15.6 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
- 15.7 Notice. You must give notice to True North at the following address: True North Companies, LLC, 7373 Doubletree Ranch Rd., Suite 200, Scottsdale, AZ 85258. Such notice shall be deemed given when received by True North by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
- 15.8 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- 15.9 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- 15.10 Export Control. You may not use, export, import, or transfer any aspect of the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained or accessed the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported
(i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and
- into any United States embargoed countries, or
- to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By accessing or using the Services, you represent and warrant that
(ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by True North are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer True North products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- 15.11 Consumer Complaints. 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.
- 15.12 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.