MAD Energy, LP
Terms and Conditions of Use
THIS WEBSITE IS AN ADVERTISEMENT FOR THE SALE OF UNREGISTERED SECURITIES IN ACCORDANCE WITH REGULATION D, RULE 506(C). THIS WEBSITE IS NOT AN OFFER TO SELL SECURITIES. THE OFFER TO SELL SECURITIES IS MADE ONLY THROUGH THE PRIVATE PLACEMENT MEMORANDUM AND RELATED OFFERING MATERIALS (THE “OFFER”) AVAILABLE TO DOWNLOAD FROM THIS WEBSITE FROM THE JOIN THE MOVEMENT PAGE ONLY AFTER YOU REVIEW THE DISCLAIMER NOTICE AND COMPLETE THE APPLICATION TO OBTAIN THE OFFER. ONLY ACCREDITED INVESTORS AS DEFINED UNDER RULE 501 OF REGULATION D ARE ELIGIBLE TO PURCHASE THE UNREGISTERED SECURITIES OFFERED IN THE OFFER.
1. GENERAL OVERVIEW
MAD Energy, LP (“MAD”) is the operator and provider of https://madenergy.com, https://investmadenergy.com, and associated applications for mobile devices (collectively, “MAD”, “MAD Energy” or the “Company”). The Company offers web-content and mobile applications (collectively, the “Services”). The Services provided by the Company are made available to you, the Customer, subject to these terms and conditions of use. By using, downloading, purchasing, or otherwise accessing any of the Services, you agree to follow and be bound by these Terms and Conditions of Use (the “Terms”). The Terms may be updated by The Company at any time without notice to you. The Company, in conjunction with its third-party providers, may make changes to the Services at any time without notice. The Terms may be altered or superseded by designated legal notices described on certain website pages. The Company retains the right to modify or eliminate, for any length of time, the Services or any portion thereof, at any time and without notice. By using, downloading, or otherwise accessing the Services you agree that The Company shall not be liable to you or any third party as a result of any modification or elimination of the Services. By accessing, downloading, or otherwise using the Services, you are agreeing to be bound by the Terms and any and all future modifications thereof. If you do not agree to be bound by the Terms, you must cease all use of the Services. Your use of the Services and the Company network indicates that you represent and warrant that: You are eighteen (18) years of age or older and can legally enter into and form contracts; and by using or otherwise accessing the Services, you expressly agree that: The Company has offered the Services in reliance upon the warranty disclaimers, releases, and limitations of liability contained herein; These warranty disclaimers, releases, and limitations of liability reasonably and fairly allocate risk between you and the Company; and these warranty disclaimers, releases, and limitations of liability form an essential basis of the bargain between you and the Company, and that without such warranty disclaimers, releases, and limitations of liability the Company would be unable to provide the Services to you.
3. ADDITIONAL CONDITIONS
In order to use certain features, participate in promotions, or receive/use some Services, The Company may require you to agree to additional rules, policies, or other conditions (collectively, “Conditions”). In such an event, you may be required to consent to additional terms set forth in certain applicable Conditions by clicking on a button or checking a box to indicate your consent. In the event that the terms of such “click-through” agreements differ from the Terms, the terms of the click-through agreement will alter the Terms with respect solely to matters governed by the click-through agreement.
4. MODIFICATION OF THE TERMS
The Company retains the right to alter, add, or eliminate portions of the Terms or any applicable Conditions at any time and in its absolute and sole discretion. In the event of such a modification of the Terms, the Company will notify you via your registered email address. It is your responsibility to occasionally review the Terms, Policy, and any Conditions for changes. Your continued use of the Services after any modifications to the Terms or Conditions are posted constitutes your acceptance of such changes.
5. PROPRIETARY RIGHTS
The Company owns and operates the Services. The Services, any software used in connection with the Services, and any MAD Energy Content (as defined below) are licensed, not sold. By using the Services, you agree that the Services, any software or algorithms used in connection with the Services, and any MAD Energy Content contain proprietary and confidential information that is protected by intellectual property and other applicable laws. You may not modify, rent, lease, loan, license, sell, distribute, or create derivative works based on the Services, software, or Content offered, unless such use is expressly permitted by applicable law or authorized in writing by The Company or the relevant third-party service provider. The Company grants you a personal, non-transferable and non-exclusive license to access and use the Services. However, such license is in effect only so long as you do not, and do not allow any third party to, copy, alter, create a derivative work from, reverse engineer or otherwise try to discover any source code, sell, assign, grant a security interest in, or otherwise transfer any right in the Services. You may only access and use the Services through the interface that is provided by the Company, and you agree not to access the Services through any other means. The names “MAD Energy”, along with the associated logos, marks, designs, and names of the specific Services are the exclusive trademarks of the Company, and you shall not use or display such trademarks in any manner without the Company’s prior written consent. All rights not expressly granted hereunder are expressly reserved by the Company. Any third-party trade or service marks displayed through the Services are the property of their respective owners.
6. CUSTOMER ACCOUNT INFORMATION
Some of the Services require a Company Customer Account to use. In creating your Customer Account, you agree to: Provide true, current, accurate, and complete information as prompted by the Customer Account registration form (“Customer Data”); and Maintain and punctually update the Customer Data, as it may be required, to keep the data accurate and current. The Company uses the Customer Data to provide the Services, and any inaccurate or dated Customer Data will hinder the Company’s ability to provide the Services. As a result, if the Company has reasonable grounds to suspect that the Customer Data is inaccurate or dated, the Company has the right to suspend or terminate your Customer Account. The Company also has the right to refuse any future use of the Services by you. As consideration for using the Services, you represent and warrant that you are able to form a legally binding contract and are not otherwise barred from receiving the Services under the laws of any jurisdiction.
As part of the registration process, you will be asked to provide a password for your Customer Account. You should keep your password confidential at all times, as you are responsible for all activities that initiate from your Customer Account and you can only access your Customer Account upon inputting your password. Do not share your password with anyone else for any reason. While the Company uses reasonable security protocols to protect the confidentiality of your password, the Company cannot guarantee absolute security of your password, Customer Account, Customer Content, or the personal, and financial information that you provide. The Company cannot guarantee that the security measures in place will prevent third-party hackers from illegally accessing the Services or its contents. By using the Services and creating a Customer Account, you agree to accept all risks of unauthorized access to the Customer Data and other information you provide to the Company. In the event of an unauthorized use of your Account, you shall notify the Company of the unauthorized access, or any other security breach, at once. By using the Services and creating a Customer Account, you agree to accept all risks of unauthorized access to the Customer Data and other information you provide to the Company. The Company retains the right to suspend your Customer Account or require you to change your password if the Company believes for any reason that your password is no longer secure.
7. THIRD PARTY PROMOTIONS
The Company maintains a commercial relationship with certain third parties and advertisers (“Third Parties”). These Third Parties may market or sell their own promotions and services on, or through, the Services. You are not required to participate in these promotions or transact business with any of these Third Parties. You may be required to make a payment in order to obtain some of these services or participate in some of these promotions. Your payments to participate in these Third Party offerings are made to the relevant Third Party. The Company is not responsible for the administration or application of any payments required by the Third Parties for their independent services or promotions. Further, the Company is not responsible for the performance or nonperformance of any of the Third Parties. The Company shall not be liable for any loss or damages suffered or incurred by you as the result of your dealings with the Third Parties.
8. RULES FOR SERVICES USE
By using the Services, you understand and agree that you may not, and you warrant that you will not: Use the Services, the Company network, or any personal information displayed on or within the Company network or Services to stalk, harass, abuse, defame, threaten, defraud anyone; Use the Services if you are under the age of 18 years old; Post offensive, lewd, or pornographic materials in your Customer Account and on your personal profile; Use the Services for any non- private or commercial use; Use the Services for any illegal purpose or in violation of any applicable law, including laws governing intellectual property, data protection, financial market regulation, and privacy; Fraudulently impersonate any person or entity or falsely claim an affiliation with any person or entity, including but not limited to a representative of the Company.
Prohibition Against Mixed-Use
The Company, its network, and the Services are made available solely for your personal, non-commercial use. You may not access or otherwise use the Company or its Services for any commercial or advertising uses. Such commercial or advertising uses include, but are not limited to, selling a product; increasing traffic to your own website or a third party’s website for commercial reasons; copying the Company’s Services and reformatting and displaying them on your own or a third party’s website; mirroring any of the Services on your own or another’s website; or performing a meta-search of the Company or the Services. The Company reserves the right to suspend or terminate your Customer Account and your access to and use of the Services if it reasonably believes that you have used the Company or its Services for any commercial or advertising uses. Any commercial or advertising use of the Company or its Services must be approved in writing by the Company prior to their occurrence. If you wish to make a commercial or advertising use of the Company or its Services, you must enter into an agreement with the Company to do so in advance. You may contact the Company through its website for more information regarding such arrangements.
9. THIRD PARTY CONTENT
From time to time certain content displayed on, or linked to by, the Services is developed by Third Parties over whom The Company exercises no control. Such Third-Party Content may include links to Third Party websites, advertisements, or news headlines. The Company does not endorse any Third-Party Content, nor does it endorse the information, materials, products, or services that may be displayed or linked to by the Third Party Content. Any contact, transaction, or business dealings between you and the Third Parties as a result of Third-party Content displayed on, or linked to by, the Services exists solely between you and the Third Parties. Such interactions are independent of the Company. The Company shall not be liable for any loss or injury of any sort suffered as a result of any such dealings, or as the result that such Third-Party Content was displayed on, or linked to by, the Services.
The Services or certain third parties may provide links to other websites or resources. The Company has no control over such websites or resources, and as a result, the Company is not responsible for the availability of such external websites or resources. The Company does not endorse such external websites and resources, and the Company is not liable for any content, advertising, products, or materials on or available from such websites or resources. The Company is not liable for any loss or injury suffered by you as a result of visiting any external websites or resources linked to through the Services.
10. THE COMPANY CONTENT
The trademarks, trade names, trade dress, service marks, copyrighted material, source code, algorithms, financial market analysis, and other information (collectively, “the Company Content”) contained in the Services and on the Company network are owned by the Company.
The Company is the exclusive owner of all the Company Content, including any and all copyrights, trademarks, trade dress, service marks, source code, algorithms, and other intellectual property rights. Except as expressly permitted by certain Services as provided for in the Conditions applicable to those Services, you may not download, copy, or save any Company Content or any portion thereof, for any purpose. You may print individual screens appearing as part of the Services only for personal use or records, provided, however, that any logos, marks, or other legends that appear on the screens remain and are not erased from the printed copy. Unless expressly permitted under the Terms, applicable Conditions, or with the prior written consent of the Company, you may not modify, copy, publish, display, adapt, transmit, or otherwise exploit the Company Content.
The Company is NOT a Financial or Investment Adviser
The Company Content does not constitute FINANCIAL OR INVESTMENT advice. Any FINANCIAL OR INVESTMENT related questions should be promptly directed towards your FINANCIAL OR INVESTMENT ADVISER. The Company Content, including but not limited to all financial market analysis, market research and predications, text, photographs, images, graphics, audio, video, and other materials, along with any and all Third-Party Content, is not intended to be, and should not be, used in place of: The advice of a financial or investment adviser; or A consultation, call, or visit with a financial or investment adviser. The Company Content should not be used for long-term financial planning. You should not disregard, or delay in seeking, financial advice from a financial or investment adviser as a result of any the Company Content. YOUR TRANSMISSION AND RECEIPT OF THE COMPANY CONTENT, IN WHOLE OR IN PART, OR YOUR COMMUNICATION WITH THE COMPANY AND THE SERVICES THROUGH THE INTERNET, EMAIL, OR ANY OTHER MEANS DOES NOT CONSTITUTE OR CREATE A FIDUCIARY RELATIONSHIP BETWEEN THE COMPANY, OR ANY OF ITS AFFILIATES, AND YOU OR ANY OTHER CUSTOMER.
11. APPLICATIONS FOR MOBILE DEVICES
The Company Mobile Applications may be accessed or otherwise used only with a mobile device that is compatible with The Company and the Mobile Applications. The Company does not guarantee or represent that your mobile device will be compatible with the Mobile Applications. The normal messaging, data, and other rates and fees of your wireless carrier will still apply when using the Services. Certain wireless carriers may prohibit or restrict your ability to download, install, or use the Mobile Applications, and the Mobile Applications may not be compatible with all wireless carriers or devices. You should check with your wireless carrier prior to using the Services to ensure that the Mobile Applications are compatible with your mobile device and your wireless carrier’s rules. Your use of the Mobile Applications constitutes an agreement by you that the Company may communicate with your regarding the Company and the Services by SMS, MMS, text message, or other electronic means directed to your mobile device. Furthermore, by using the Mobile Applications you agree that certain information about your usage of the Mobile Applications may be transmitted to the Company. If you replace or deactivate your mobile device or your mobile device telephone number, you must promptly update your Customer Account information to ensure that The Company’s messages are sent to you.
End User License
The Company hereby grants you a non-exclusive, non-transferable, revocable license to use the Mobile Applications in the following manner: To use, access, or otherwise employ the Mobile Applications with one Account. An Account consists of the shared resources accessible by a single login ID on one (1) mobile device owned or leased by you for your personal use. While using, accessing, or otherwise employing the Mobile Applications, you may not: Alter, disassemble, or reverse engineer the Mobile Applications; Lease, loan, sublicense, resell, distribute, or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; Copy the Mobile Applications; Erase or otherwise alter the copyright, trademark, source code, algorithms, or other proprietary rights notices on the Mobile Applications; or Circumvent, remove, disable, damage, or otherwise interfere with the security features of the Mobile Applications; the feature that prevent or restrict use or copying of the content accessible through the Mobile Applications; or features that restrict limits on the use or access of the Mobile Applications. The Company reserves the right to issue upgraded versions of the Mobile Applications from time to time, and may automatically upgrade the version of the Mobile Application that you use on your mobile device. By using the Services, you expressly consent to such automatic upgrading on your mobile device, and further agree that the Terms, and any modification of the same, will apply to all such upgrades. In the event that any open source or third-party code is incorporated into the Mobile Applications, such source code is covered by the applicable open source or third-party license EULA, if any, permitting the use of such code. The license granted herein is not a sale of the Mobile Applications or any copies thereof, and The Company, along with any applicable third-party partners or suppliers, retain all rights, titles, and interest in the Mobile Applications, and any copies of the same. Any attempt by you to transfer any of the rights, duties, or obligations enumerated herein, except as expressly provided for in the Terms, is void.
12. INTELLECTUAL PROPERTY RIGHT INFRINGEMENT
If you believe that any part of the content on the Services, including any and all Third-Party Content, or the Company Content, infringes the intellectual property rights of others, you should immediately notify our Intellectual Property Rights Agent using the contact information provided below. The policy of the Company is to investigate any allegations of intellectual property right infringement brought to the attention of the Company. The Company reserves the right, in its sole and absolute discretion, to immediately suspend and/or terminate access to the Services by any Customer who is alleged to have posted infringing materials or a link to infringing materials through the Services. The Company also reserves the right, in its sole and absolute discretion, to immediately remove or otherwise disable the allegedly infringing materials or link. If you are the owner of intellectual property, or are otherwise authorized to act on behalf of the owner, you should immediately notify out Intellectual Property Rights Agent if you believe that (1) any Content, including any and all Third Party Content, and Company Content, infringes your intellectual property rights; or (2) any link posted on the Services links to materials that infringe your intellectual property rights. Upon receipt of your notice of alleged infringement, the Company will promptly remove or disable access to the materials that are alleged to be infringing, or the subject of infringing activity. To constitute a valid notice, the notice must comply with the Digital Millennium Copyright Act (“DCMA”), be in writing, and must include: A description of the work you believe has been infringed (or a representative list of works in the event that you believe multiple works have been infringed); A description of the allegedly infringing material or the subject of the allegedly infringing activity, along with enough information to permit The Company to locate the material; Your contact information, including your name, address, telephone number, and email address; A statement that you have a good faith belief that the allegedly infringing use of the material was not authorized by the owner of the exclusive right that is allegedly infringed, an agent for the owner, or by law; A statement that all of the information you have provided is accurate; and A statement, made under penalty of perjury, that you are the owner of the allegedly infringed material or are authorized to act on behalf of the owner. The notice must be signed, physically or electronically, and must be addressed to:
The Davillier Law Group
Intellectual Property Rights Agent c/o MAD
414 Church Street
Sandpoint, ID 83864
Failure to comply with all of the requirements described in this section may result in an invalid notice. You should note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
13. DISCLAIMER OF WARRANTIES AND RELEASE OF LIABILITY
General Disclaimer of Warranties
The Services, including the Mobile Applications and any and all Third-Party software or applications made available in connection with or via The Company are provided “as is” and without warranties of any kind either express or implied. EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS SECTION, COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR PROVIDE ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF NONINFRINGEMENT OF PROPRIETARY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE FOR ITS PRODUCTS AND THE SERVICES (INCLUDING BUT NOT LIMITED TO DATA, SOFTWARE, COMPUTATIONAL TOOLS, OR ANY OTHER DOWNLOADABLE PRODUCTS) DELIVERED TO CUSTOMER UNDER THIS AGREEMENT. The Company, along with any and all of its subsidiaries, affiliates, officers, employees, agents, partners, licensors, and suppliers make no warranty that: The Services will meet your requirements; The Services will be uninterrupted, timely, error-free, or secure; The Services, or any results obtained thereof, will be accurate or reliable; The quality of any products, services, information, or other material downloaded, or obtained by you through the services will meet your expectations; and Any errors in the Services or the website will be corrected. The Company, along with any and all of its subsidiaries, affiliates, officers, employees, agents, partners, licensors, and suppliers (including, without limitation, The Company’s third party wireless carrier partners) do not warrant that the Mobile Applications, and the functions contained therein, will be uninterrupted or error-free, that any defects will be corrected, or that The Company or the servers that makes the Mobile Applications available are free of viruses or any other malicious components. The Company, along with any and all of its subsidiaries, affiliates, officers, employees, agents, partners, licensors, and suppliers do not warrant or make any representations regarding the use or the results of the use of any personal information or the services in terms of security, correctness, accuracy, safety, reliability, or otherwise. You alone assume the entire cost of any necessary servicing, repair, or correction related to the Services.
No Financial Advice, and Risk Disclosure
The Company, its members, managers, employees, and authorized agents are not Registered Investment Advisors, Broker/Dealers, Financial Analysts, Financial Banks, Securities Brokers or Financial Planners. The Company’s information and Services, defined herein, are provided for information purposes only. The information and Services are not intended to be and do not constitute financial advice nor a recommendation to purchase, sell or hold any security or otherwise to be investment, tax, financial, accounting, legal, regulatory or compliance advice. Before using the Company’s information to make an investment decision, you should seek the advice of a qualified and registered securities professional and undertake your own due diligence. All offers to sell, or the solicitations of offers to buy, any security will be made through official confidential offering documents that contains important information about risks, fees and expenses. You should always conduct your own due diligence, not rely on the financial assumptions or estimates displayed on the Site, and are encouraged to consult with a financial advisor, attorney, accountant, and any other professional that can help you to understand and assess the risks associated with any investment opportunity. The Company is not a registered broker-dealer and makes no representation or warranty to any prospective investor regarding the legality of an investment. The Company is not responsible for any investment decision made by you. You are responsible for your own investment research and investment decisions. There is a substantial amount of risk in trading securities, and the possibility exists that you can lose all, most, or a portion of your capital. There are also risks involved in investing in securities including but not limited to interest rate risk, credit risk, substantial risks, including risk of partial or total loss of investment, and other risk factors. The Company does not, cannot and will not assess or guarantee the suitability or profitability of any particular investment, or the potential value of any investment or informational source. The securities mentioned on our Site may not be suitable for investors depending on their specific investment objectives and financial condition. No investment, information, nor materials provided on our Site was recommended or approved by the Securities and Exchange Commission (“SEC”) or any federal or state securities commission or regulatory authority. The information provided by the Company through its Services, including but not limited to its opinion and analyses, is based on financial models believed to be reliable but is not guaranteed, represented or warranted to be accurate or complete. The charts depict the results of our models and are not influenced by any other factors except the updated parameters, which the models use. The models, signals should not be construed to be investment advice. The information may contain forward-looking statements about various economic trends and strategies. You are cautioned that such forward-looking statements are subject to significant business, economic and competitive uncertainties and actual results could be materially different. There are no guarantees associated with any forecast and the opinions stated here could be wrong due to false signals from the models, or the models being incorrectly structured, incorrectly updated and/or incorrectly interpreted. The signals, forecasts, the Site and Company’s products and services, only express our opinion of various securities. Our opinion will be wrong at times because of the limitations of investment analysis. Investment analysis, whether fundamental, technical or any other form of investment analysis, cannot predict the future and is not a science that predicts precise and accurate results. Your use of any information from the Site is at your own risk and without recourse against the Company, its owners, directors, officers, agents, employees or content providers.
In addition to and notwithstanding the above disclaimers, the Company further disclaims any and all liability or responsibility for the content, accuracy, completeness, legality, operability, reliability, or availability of any information or material provided by or in connection with the Services. The Company also disclaims any and all responsibility or liability for the content, accuracy, completeness, legality, operability, reliability, or availability of any search results or financial market analysis generated by or through the Services, or those displayed through the Services. Further, the Company disclaims any liability for the erasure, failure to store, failure to deliver, or untimely delivery of any information or material, including the Company and Customer Content, sent through the Services. By using the Services, you agree that you download or otherwise obtain material or data from The Company or the Services at your own discretion and at your own risk. The Company disclaims any and all responsibility and liability for any injury to you that results from downloading or accessing any information or material through The Company or the Services. Persons under the age of 18 (“Minors”) may not use the Services or affiliated network of the Company at any time or in any manner. As a result, The Company is not directed at, and does not target, Minors, nor does The Company use its Services or network to knowingly solicit personal, geographic, or financial information from Minors. Upon learning that a Minor has provided personal, geographic, or financial information, The Company will use reasonable efforts to remove the information of said Minor from its records. The parent or guardian of a Minor who learns that their Minor has created a Company Customer account may contact the Company and request that the Minor’s information and account be deleted. Failure of the Minor’s parent or guardian to contact the Company will result in the parent or guardian accepting full responsibility for his or her child’s use of the Company and the Services, including any and all financial charges and legal liability that such child may incur. In the event that any provision of the above disclaimers are held to be unenforceable for any reason by any law, court, or tribunal, that provision shall be severed from the remainder of the disclaimers, which shall remain in full force and effect and be enforceable in accordance with their terms.
You agree to indemnify and hold the Company, along with its subsidiaries, affiliates, officers, employees, agents, partners, licensors, and suppliers, harmless from any claim or demand, including those for attorneys” fees, made by any third party as a result of: Any Customer Content submitted, posted, transmitted, or otherwise made available through the Services by you; Your use or access of the Services; Your connection to the Services; Any violation of the Terms which you commit; Your use or misuse of any other Customer’s personal or financial information; Your violation of the rights of any other individual or entity; or Your use of the Services to meet another Customer in- person or to otherwise locate and attend any offline place or event. The Company retains the right, at a specific Customer’s expense, to assume the exclusive defense and control of any matter for which that specific Customer is required to indemnify the Company, and the specific Customer agrees to cooperate with the Company’s defense of these claims.
15. LIMITATIONS OF LIABILITY AND DAMAGES
By using the Services, you understand and agree that The Company, along with all of its subsidiaries, affiliates, officers, employees, agents, partners, licensors, and suppliers, will under no circumstances, including without limitations, negligence, be liable to you for any special, indirect, incidental, punitive, reliance, consequential (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR TRADING LOSSES), or exemplary damages related to or arising from: The Company’s use, disclosure, maintenance, or display of a Customer’s personal information; Your ability or inability to use the Services; The Services, including the systems and servers that make the Services available; or Any other interaction between you and The Company or any other Customer of the Services. In such circumstances, The Company will not be liable even if The Company, or one of The Company’s authorized agents, has been advised of the possibility of such damages. Further, the above limitation shall apply to damages suffered as a result of third party services or goods received through or advertised on The Company or the Services; through the Services; received through any links provided by The Company; or by reason of any advice or information received through or advertised on The Company or the Services. Under no circumstances, including without limitation negligence, will The Company, or any of its subsidiaries, affiliates, officers, employees, agents, partners, licensors, and suppliers, be liable for the costs of procurement of substitute goods or services, lost profits, or lost data. This limitation shall also apply to the performance or non-performance of The Company or the Services or any information or merchandise that appears on, is linked to, or is related in any way to The Company or the Services. Notwithstanding any failure of the essential purpose of any limited remedy, such limitation shall apply to the fullest extent permitted by law. Under no circumstances shall the total liability of The Company, or any of its subsidiaries, affiliates, officers, employees, agents, partners, licensors, and suppliers, to you for any damages, injuries, losses, or causes of action arising out of or relating to the Terms or your use or access of the Services, whether arising in contract, tort, warranty, or other law, exceed the amounts paid by you for using the Services during the twelve (12) months immediately preceding the date of your claim or one thousand dollars (US $1,000.00), whichever is greater. Your right to monetary damages in such amount shall be in lieu of all other remedies to which you may otherwise be entitled from the Company, or its third-party providers Notwithstanding and without limiting the foregoing, The Company shall, under no circumstances, be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, of from forces or causes beyond its reasonable control, including, but not limited to: Internet failures, computer equipment failures, any other equipment failures, electrical power failures, loss of or fluctuations in heat, light, or air conditioning, strikes, labor disputes, riots, insurrections, civil disturbances, labor material shortages, fires, floods, storms, acts of God, pandemics, war, acts of terror, governmental actions, orders of domestic or foreign courts or tribunals, or the non-performance of any third parties. The Company neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, or statement on the Site, nor for any offensive, defamatory, or obscene posting made on the forums by anyone other than authorized the Company employee spokespersons while acting in their official capacities. Under no circumstances will the Company be liable for any loss or damage caused by a person’s reliance on information obtained through the content on the Site. It is the responsibility of each person to evaluate the accuracy, completeness, or usefulness of any information, opinion, advice, or other content available through the Site. The Company does not endorse, warrant, or guarantee any product or service offered by a third party through the Site. Under no circumstances shall the Company, its officers, directors, shareholders agents or its third-party providers be liable for any direct, indirect, incidental, punitive, special or consequential damages (including without limitation, attorneys” fees), whether in an action of contract, negligence or other tortious action, that result from the use of, or the inability to use, any materials available on the Site, even if the Company has been advised of such damages. If you are dissatisfied with any of the Site’s Information or other materials, or with any of the terms and conditions contained in the Site, your sole and exclusive remedy is to discontinue using the Site. The limitations of liability set out hereinabove shall survive any termination or expiration of the Terms and will apply even if any limited remedy specified herein is found to have failed of its essential purpose. In the event that any provision of the above limitations of liability are held to be unenforceable for any reason by any law, court, or tribunal, that provision shall be severed from the remainder of the limitations of liability, which shall remain in full force and effect and be enforceable in accordance with their terms.
16. INVOLUNTARY TERMINATION
The Company reserves the right, in its sole discretion and without prior notice, to immediately terminate your Customer Account and access to the Services. Reasons for such involuntary termination of your Customer Account shall include, but are not limited to: Any breach or violation of the Terms or other incorporated agreements or Conditions by you; Requests by law enforcement or other governmental agencies; The discontinuance or material alteration of the Services, or any portion thereof; Unforeseen technical or security issues; Extended periods of inactivity; or The nonpayment of any fees owed by you in connection with the Services. The Company will also terminate your Customer Account upon your voluntary request. Termination of your Customer Account may include:
(1) the removal of access; (2) the erasure of your information, files, and any Customer Content associated with or located within your Customer Account; and (3) barring you from any further use of the Services. All involuntary terminations are made in The Company’s sole and absolute discretion. The Company shall not be liable to you or any third party of any involuntary termination of your Customer Account or access to the Services.
17. ARBITRATION AGREEMENT, CHOICE OF LAW AND VENUE
You and the Company agree that:
This Terms, all the rights and obligations between you and us, and all relationships between you and us arising out of or in connection with this Terms, shall be governed by and construed in accordance with the laws of the State of Idaho, without regard to Idaho choice of law provisions, which shall not apply.
Any dispute between you and us arising from, in connection with, or in any way related to this Terms, (whether arising in contract or tort, or implied under law, or under any statutory provision, or under any other theory of liability of any nature whatsoever) that is not settled amicably by you and us, shall be referred to and determined solely and exclusively by binding arbitration, conducted in the English language, in Coeur de ‘Alene, Idaho, at a venue to be chosen by the American Arbitration Association to the exclusion of all other available venues. This provision shall be construed to be a broad form binding arbitration provision. You hereby agree to waive any defenses related to the forum, including but not limited to defenses based on personal jurisdiction or the doctrine of forum non-conveniens.
The binding arbitration shall be submitted to the American Arbitration Association and shall be conducted under the alternative dispute resolution rules of the American Arbitration Association, except to the extent that those rules may conflict with any provision of this Paragraph, in which case the provisions of this Paragraph shall control. The alternative dispute resolution rules of the American Arbitration Association may be found at www.adr.org.
WAIVER OF CLASS ACTION: You hereby agree that any claim you bring against us in arbitration shall be an individual arbitration proceeding brought on your behalf only, and not in conjunction with any other users of Services. You further agree that you shall not participate in any collective arbitration against the Company, such as a class action, and knowingly and irrevocably hereby waive any such collective or class action rights you may have, or ever will have, against the Company.
WAIVER OF JURY TRIAL: By agreeing to this Binding Arbitration provision, you knowingly and irrevocably hereby waive all rights you may have, or will ever have, to bring a lawsuit against the Company in any court, and thereby also knowingly and irrevocably waive your right to a jury trial. Arbitration proceedings by their nature are not court proceedings, and do not involve judges and juries. The arbitration you are hereby agreeing to is an alternative dispute resolution process conducted by the American Arbitration Association. Further information regarding the American Arbitration Association’s alternative dispute resolution format and rules is available at www.adr.org.
The arbitration proceeding shall be conducted by one (1) independent arbitrator appointed by the American Arbitration Association, who shall have at least fifteen (15) years’ experience as a lawyer handling commercial transactions, substantive knowledge of Idaho law, and who shall have sat as an arbitrator in at least two prior arbitration proceedings conducted under the auspices of the American Arbitration Association.
The appointed arbitrator shall have the power to issue emergency and injunctive relief, and to employ other equitable, provisional and interim measures once appointed, including ordering the posting of pre-award security if reasonable to do so under the circumstances.
The appointed arbitrator shall have the sole and exclusive authority to rule upon the arbitrability of the proceeding, and to fully and finally resolve all challenges as to the forum, the jurisdiction of the arbitrator to rule upon the dispute, or power of the arbitrator to proceed.
Judgment on the award rendered by the arbitrator shall be final and shall not be subject to appeal of any nature, and may be entered in and enforced by any court having jurisdiction thereof.
The arbitrator shall award the prevailing Party all costs and fees associated with the arbitration, including but not limited to all arbitration fees and costs, court reporter’s fees, attorneys’ fees and expert fees.
Sections 5, 10, 13, 14, 17, 19, 20, and 22 of the terms shall survive any termination of your Customer Account and/or Terms.
If any provision of the Terms is held to be unenforceable for any reason by any court or tribunal of competent jurisdiction, or as the result of any law, statute, or regulation, that provision shall be deemed to be severed from the Terms, and its unenforceability shall not affect the remainder of the terms, which shall remain in full force and effect and shall be enforceable in accordance with its terms.
20. MISCELLANEOUS PROVISIONS
No joint venture, partnership, employment, fiduciary, or agency relationship exists between you and the Company as a result of the Terms or your use or access of the Services. The Terms constitute the entire agreement between you and the Company with respect to your use of the Services. The failure of the Company to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provisions. You may not assign, delegate, or otherwise transfer your Customer Account or your obligations under these Terms to a third party without the prior written consent of the Company. The Company, in its absolute and sole discretion, has the right to transfer or assign all or any part of its rights under these Terms and will have the right to delegate or use third party contractors to fulfill its duties and obligations under the Terms and in connection with the Services.
Notice You hereby agree that The Company’s notice to you by email, regular mail, or notices or links displayed in connection with the Services shall constitute acceptable notice to you under the Terms. Notice will be deemed to be received forty eight (48) hours after it is sent if it is transmitted by email or regular mail. Notice will be deemed to be received by you twenty four (24) hours after it is first displayed if it is provided via links displayed in connection with the Services. Territorial Control of the Services The Company controls the Services from its offices within the United States of America. As a result of the foregoing, the Company makes no guarantees that Customer Content, Company Content, or the Services are appropriate or available for use in locations other than the United States of America. Access to the Services from territories where their content or use is illegal is prohibited. If you choose to access the Services from locations outside of the United States of America, you do so on your own initiative and are responsible for compliance with any and all applicable local laws. The Company Content and Customer Content may not be exported or used in violation of the laws and regulations of the United States of America.
You are welcome to comment, make suggestions, or otherwise communicate with the Company regarding the Services (collectively, “Feedback”). There is no obligation that you provide Feedback, but, in the event that you provide Feedback, you hereby grant to the Company a worldwide, non-exclusive, transferrable, assignable, sub- licensable, perpetual, irrevocable, and royalty free license to copy, distribute, create derivative works of, publicly display and perform, and otherwise exploit such Feedback, and to use, make, have made, sell, offer for sale, import and export products and services based on such Feedback. As a result of the foregoing, you should not express any Feedback that you do not wish to license to the Company as set forth above.