Fiducia Labs, LLC and its affiliated entities (collectively, “Fiducia,” “we,” or “us”) make certain software tools, technology and related services (collectively, the “Services”) available to users (each a “User” and referred to in this Terms of Service Agreement (this “Agreement”) as “you”), including investors who use the Services to make and manage their investments, and issuers and managers who use the Services to subscribe investors and manage their on-going relationships with those investors. “Users” also include anyone else who is authorized to access or use the Services for any other reason. The Services include, but are not limited to, providing access to Fiducia’s proprietary investor management software solutions marketed and sold under the trade name “Marko,” and accessed by authorized Users through secure.getmarko.com (the “Site”), either directly or through other sites hosted by us but white labeled in the name of an issuer or manager. By using the Site or any of the Services, you agree to be bound by this Agreement, which constitutes a contract between you and Fiducia. This Agreement supersedes any prior Terms of Service relating to the Services or the Site.
By accessing, browsing and/or using the Services, including the Site, you acknowledge that you have read and understand, and agree to, this Agreement. We may update this Agreement at any time. Your continued use of the Services or the Site after any such modifications constitutes your acceptance of the modified terms and conditions. If you do not accept this Agreement, you do not have permission to access, browse or use the Services or the Site, and your sole and exclusive remedy is to discontinue using them. As such, we strongly recommend that you periodically review this Agreement, which is available upon request or at secure.getmarko.com/legal/terms-of-service. The date of the last revision or update appears at the top of the Agreement under the title.
Your compliance with this Agreement is a condition of your right to access the Site and use the Services. Your breach of any provision of this Agreement will automatically, without the requirement of notice or of any other action, revoke and terminate your right to use the Services or access the Site, and may also entitle us to recover damages from you.
2. Intellectual Property Rights and Ownership.
Fiducia and its licensors retain sole and exclusive ownership of the software and other intellectual property used to provide the Services and operate the Site. Without limitation, this intellectual property includes (i) all software, computer code, and similar intellectual property used to provide the Services and (ii) the visual interfaces, graphics, designs, systems, methods, information, “look and feel,” organization, and all other content used to provide the Services or available on the Site, other than User Content (defined below). Contingent on your compliance in full with your obligations under this Agreement and any other agreements you may have with Fiducia, including any agreement to pay for the Services, Fiducia grants you a limited, revocable license to access and use the Services and the Site for the limited purposes of (a) making and managing investments with authorized Users who are lawfully using the Services, (b) selling investment opportunities to and managing your relationships with investors who are authorized Users lawfully using the Services, and (c) any other use of the Services authorized by Fiducia in writing. Fiducia may revoke this license, in whole or in part, at any time and for any reason or for no reason. If we create a white-labeled tenancy for you as part of the Services, you will own the domain for that site, and we will provide an SSL Certificate for that domain during the term of this Agreement. If this Agreement is terminated for any reason, you will continue to own the domain but will need to provide alternative content and a security certificate for the domain. To the extent you provide any material to be displayed using the Services, including any material displayed on and/or accessible through the Site (“User Content”), including through your use of any white-labeled tenancy of the Site, you retain ownership of that User Content, but grant Fiducia an unlimited license to use that User Content for the purpose of operating the Site and providing the Services. Without limitation, User Content may include text, graphics, charts, information, images, articles, reports, presentations and other material, as well as names, logos, trademarks and service marks. Nothing in this Agreement shall constitute a waiver of any trademark, copyright or other intellectual property rights by you or by us. Fiducia reserves the right to enforce its intellectual property rights to the full extent of the law.
3. Restrictions on Use.
By accepting the terms of this Agreement through your use of the Site and the Services, you certify that you are 18 years of age or older. If you are under the age of 18, you may not use or access the Site or the Services.
The Services and the content of the Site may not be copied, displayed, distributed, licensed, modified, published, reposted, reproduced, reused, sold, transmitted, reverse engineered, used to create a derivative work or otherwise used for public or commercial purposes without the express written consent of Fiducia in each instance. Our prior express written consent is required for (i) any resale or commercial use of the Services; (ii) any derivative use of the Site or of the Services, or any portion thereof; (iii) any use of automated programs, data mining, robots or other data gathering and extraction tools in connection with your use of the Site or the Services; or (iv) including any portion of the Site or Services on any other website, on a server computer or in documents, including but not limited to “mirroring” the information and/or displaying the information by means of HTML frames or similar means. Any unauthorized use of the Site or the Services is a violation of this Agreement, and may also violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.
You warrant that when using the Site and the Services you will not violate or facilitate any violation of any applicable local, state, federal or international law, statute, regulation, code or ordinance, including, without limitation, regulations promulgated by or the rules of the U.S. Securities and Exchange Commission or any other national or other securities exchange. You agree to use the Services only for purposes that are legal, proper and in accordance with this Agreement and any applicable law, rules or regulations (including without limitation the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Investment Advisers Act of 1940, (each as amended), any applicable state “Blue Sky” laws, any securities exchange or self-regulatory organization’s rules or regulations, and any applicable foreign laws). We may refer any suspected fraudulent, abusive, or illegal activity to appropriate law enforcement authorities.
In addition to all other restrictions on your behavior contained in this Agreement and in our Code of Ethics, by using the Services and accessing the Site, you are agreeing not engage in any of the following conduct:
- providing false or inaccurate information to us, including identity information;
- engaging or attempting to engage in illegal or fraudulent activities;
- using the Services or the Site in any manner that could damage, disable, overburden, or impair the Services or the Site, or interfere with any other party’s use and enjoyment of the Services;
- attempting to gain unauthorized access to the Site or the Services through hacking, password mining or any other means;
- creating User accounts by automated means or under false or fraudulent pretenses;
- transmitting any viruses, worms, defects, Trojan horses, or any items of a destructive nature;
- defaming, abusing, harassing, stalking, threatening or otherwise violating the legal rights (such as rights of privacy and publicity) of others;
- uploading, posting, emailing or transmitting, or otherwise making available through the Services any inappropriate, defamatory, infringing, obscene, or unlawful content, including any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party and any materials that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by law;
- downloading any file posted by another User that you know, or reasonably should know, cannot be legally distributed in such manner;
- impersonating another person or entity, or falsifying or deleting any legal or other proper notices or proprietary designations or labels of the origin or source of any materials;
- removing any copyright, trademark or other proprietary rights notices contained in or on the Services;
- using any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Services or collect information about Users for any unauthorized purpose;
- submitting content that falsely expresses or implies that such content is sponsored or endorsed by Fiducia, including any of its affiliates or related entities, or any third parties; or
- contacting any party or User other than as allowed through the Services.
Fiducia reserves the right to change, suspend, or discontinue all or any part of the Site and the Services at any time without prior notice or liability, all with or without cause, and for any reason, including for engaging in any of these restricted activities.
4. Third-Party Links.
The Services may include links to websites operated by third parties who may or may not be affiliated with us. We do not endorse, have any responsibility for or make any representations about, any other sites, including their products and services, content, communications and website use policies. We make no express or implied warranty about the accuracy, copyright compliance, legality, merchantability or any other aspect of the content of such links. The use of third party websites is entirely at your own risk. By accessing these links, you acknowledge that such other sites or locations are not under the control of Fiducia and you agree that we shall not be responsible for any information or additional links found at such site or location, or for your use of such information.
5. Third-Party Terms of Service.
Certain aspects of the Services are provided using software and other services provided by third-party vendors pursuant to licenses with us. By using the Services or accessing the Site, you are agreeing to be bound by all applicable license agreement and terms of service or use governing those third-party products and services. Without limitation, you are agreeing to be bound by the following terms of service, as if you were agreeing to each of these agreements directly with the applicable third-party vendors, as it relates to the products and services provided by that vendor:
Auth0 Terms of Service, available at https://auth0.com/terms
Docusign Services Terms and Conditions, available at https://www.docusign.com/company/terms-and-conditions/web
Dwolla Terms of Service, available at https://www.dwolla.com/legal/tos/
Verify Investor Terms of Service, available at https://verifyinvestor.com/terms
In addition to these referenced terms of service, which are incorporated here by reference, as if set out in full, you agree to the following license agreement between you and Finicity Corporation (“Finicity” or, for purposes of the following subsections 5.1-5.8 only, “us,” “we,” and “our”), which governs solely your relationship with Finicity, and not with Fiducia:
5.1. LICENSEE ACCESS INFORMATION AND ACCOUNT DATA. You are solely responsible for (a) maintaining the confidentiality and security of your access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, used by you, or anyone you authorize on your behalf, to access the Services and your provider accounts (collectively, “Licensee Access Information”), and (b) preventing unauthorized access to or use of the information, files or data that you store or use in or with the Services (collectively, “Account Data”). You will be responsible for all electronic communications, including account registration and other account holder information, email and financial, accounting and other data (“Communications”) entered using the Licensee Access Information. It is assumed that any Communications received through use of the Licensee Access Information were sent or authorized by you. You agree to immediately notify us if you become aware of any loss, theft or unauthorized use of any Licensee Access Information. We reserve the right to deny you access to the Services (or any part thereof) if we reasonably believe that any loss, theft or unauthorized use of Licensee Access Information has occurred. You must inform us of, and hereby grant to us and our third-party vendors permission to use, Licensee Access Information to enable us to provide the Services to you, including updating and maintaining Account Data, addressing errors or service interruptions, and to enhance the types of data and services we may provide to you in the future.
Anonymous, aggregate information, comprising financial account balances, other financial account data, or other available data that is collected through your use of the Services, may be used by our third-party vendors to conduct certain analytical research, performance tracking and benchmarking. Our third-party vendors may publish summary or aggregate results relating to metrics comprised of research data, from time to time, and distribute or license such anonymous, aggregated research data for any purpose, including but not limited to, helping to improve products and services and assisting in troubleshooting and technical support. Your personally identifiable information will not be shared with or sold to third parties.
5.2. PROVIDER SERVICES.
5.2.1 General. In connection with your use of the Services and as part of the functionality of the Services, you may have access to certain online services or information that may be made available by your provider(s) (“Provider Services”), including online banking, online payment, online investment account download, online bill pay, online trading, and other account information available from your provider(s). The Services are designed to allow you to access Provider Services (if and to the extent provided by your provider(s)) to set up banking and other information, schedule the Services to access your account(s), download transactions into the Services and otherwise aggregate information from your account(s) with your provider(s). You acknowledge and agree that we have no control over the provision of Provider Services or provision of access to the Provider Services by your provider(s), do not guarantee that you will be able to use the Services with the Provider Services, and will have no liability whatsoever for any actions or inactions on the part of the provider(s) resulting in your inability to use the Services to access your accounts, obtain data, download transactions, or otherwise use or access the Provider Services.
5.2.2 Collection of Provider Account Information. You acknowledge that in accessing your data and information through the Services, your provider account access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, and the actual data in your account(s) with such provider(s) such as bank and other account balances, credit card charges, debits and deposits (collectively, “Provider Account Data”), may be collected and stored in the Services. You authorize us and our third party vendors, in conjunction with the operation and hosting of the Services, to use certain Provider Account Data to (a) collect your Provider Account Data, (b) reformat and manipulate such Provider Account Data, (c) create and provide hypertext links to your provider(s), (d) access the providers’ websites using your Provider Account Data, (e) update and maintain your account information, (f) address errors or service interruptions, (g) enhance the type of data and services we can provide to you in the future, and (h) take such other actions as are reasonably necessary to perform the actions described in (a) through (g) above. You hereby represent that you are the legal owner of your Provider Account Data and that you have the authority to appoint, and hereby expressly do appoint, us or our third party vendors as your agent with a limited power of attorney, and appoint us or our third party vendors as your attorney-in-fact and agent, to access third party sites, retrieve and use your Provider Account Data with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person, including, without limitation, accepting any new and/or updated terms and conditions from your provider on your behalf. You further acknowledge that we do not, nor does our third party vendor review your Provider Account Data and agree that we are not responsible for its completeness or accuracy. Any transactions or informational activities performed at any provider’s website are not made through the Services and we assume no responsibility for such transactions or activities. You are solely responsible for any charges associated with your provider(s).
5.2.3 Information from Providers’ Websites. You acknowledge and agree that (a) some providers may not allow the Services to access the Provider Services, (b) providers may make changes to their websites, with or without notice to us, that may prevent or delay aggregation of information from such websites, and (c) the Services may “refresh” the Provider Account Data by collecting the Provider Account Data nightly, so your most recent transactions may not be reflected in any account balances or other account information presented to you in the Services. If you see a discrepancy in the Provider Account Data, and in any case before making any transactions or decisions based on such account information presented in the Services, you should check the last refresh date for the account and confirm Provider Account Data is correct by following the link back to the applicable provider or otherwise confirm that Provider Account Data is up to date and accurate.
5.3. SOFTWARE USE, STORAGE AND ACCESS. We shall have the right, in our sole discretion and with reasonable notice, to establish or change limits concerning use of the Services, temporarily or permanently, including but not limited to (a) the amount of storage space you have on the Services at any time, and (b) the number of times (and the maximum duration for which) you may access the Services in a given period of time. We reserve the right to make any such changes effective immediately to maintain the security of the system or Licensee Access Information or to comply with any laws or regulations, and to provide you with electronic or written notice within thirty (30) days after such change. You may reject changes by discontinuing use of the Services to which such changes relate. Your continued use of the Services will constitute your acceptance of and agreement with such changes. Maintenance upon the Services may be performed from time-to-time resulting in interrupted service, delays or errors in the Services. Attempts to provide prior notice of scheduled maintenance will be made, but provider cannot guarantee that such notice will be provided.
5.4. EXPORT RESTRICTIONS. You acknowledge that the Services and any software underlying such Services are subject to the U.S. Export Administration Regulations (15 CFR, Chapter VII) and that you will comply with these regulations. You will not export or re-export the software or Services, directly or indirectly, to: (a) any countries that are subject to U.S. export restrictions; (b) any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; or (c) any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further acknowledge that this product may include technical data subject to export and re-export restrictions imposed by U.S. law.
5.5. DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES AND ANY THIRD PARTY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THE THIRD PARTY VENDOR AND ITS LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, AND DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES OR ANY THIRD PARTY SERVICES; IN WHOLE OR IN PART, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. YOU UNDERSTAND AND EXPRESSLY AGREE THAT ANY USE OF THE SERVICES OR THIRD PARTY SERVICES WILL BE AT YOUR SOLE RISK. VENDOR AND ITS (a) LICENSORS AND (b) THIRD PARTY VENDORS DO NOT WARRANT THE COMPREHENSIVENESS, COMPLETENESS, CORRECTNESS, LEGALITY, OR ACCURACY OF THE SERVICES OR THIRD PARTY SERVICES, IN WHOLE OR IN PART, OR THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR FREE. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICES OR THIRD PARTY SERVICES.
5.6. COMPLIANCE WITH FAIR CREDIT REPORTING ACT
5.6.1 You acknowledge that applications that use consumer data to generate scores or other reports or that otherwise will be utilized by application users in connection with making a decision as to whether to enter into the following types of transactions or on what terms the transaction will be offered (“Financial Apps”) may be subject to the provisions of the Federal Fair Credit Reporting Act (“FCRA”) and equivalent state laws:Extend credit to an applicant.Issue an insurance policy to an applicant.Employ a job applicant.Rent an apartment to a prospective tenant.Sell a product to, provide a service to or otherwise enter into a transaction initiated by a prospective customer.Accept a check or credit card as payment for a sale.Other activities set forth in Section 604 of the FCRA (15 U.S.C. §1681b) and in interpretations of Section 604 by the Federal Trade Commission and the Bureau of Consumer Financial Protection.5.6.2 You acknowledge and agree that, in connection with Finicity Corporation’s (“Finicity”) product and services as a third party vendor of ours, data will be transmitted or made available in a mechanical manner by Finicity, and that to the extent Finicity is involved, Finicity will not alter the substance of the data. Finicity will be acting only as a service provider and conduit and not as a consumer reporting agency in connection with the data. Finicity is providing the service of data delivery only as requested by you, the ultimate end-user, as requested and authorized by you, the owner of such information. You acknowledge that Finicity is not a reseller of data but simply provides the service of transferring data as requested and you from one party to the party directed and authorized by you to receive the data.
5.7. THIRD PARTY BENEFICIARY; INDEMNIFICATION. You agree that Finicity is a third party beneficiary of the above provisions, with all rights to enforce such provisions as if Finicity were a party to this Agreement. You agree to protect Finicity and their affiliates from any and all third party claims, liability, damages, expenses and costs caused by or arising from your use of the Services, your violation of these terms or your infringement, or infringement by any other user of your account, of any intellectual property or other right of anyone.
5.8. LIMITATION OF LIABILITY. YOU AGREE THAT NEITHER WE NOR FINICITY NOR ANY OF THEIR AFFILIATES, ACCOUNT PROVIDERS OR ANY OF THEIR AFFILIATES WILL BE LIABLE FOR ANY HARMS, WHICH LAWYERS AND COURTS OFTEN CALL DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, EVEN IF WE OR FINICITY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES, (iii) ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SERVICE; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANYONE ON THE SERVICE; (vi) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY ACCOUNT PROVIDER SITE, EVEN IF THE PROVIDER HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES; OR (vii) ANY OTHER MATTER RELATING TO THE SERVICE.
6. Consent to receive electronic Communications.
By accessing or using the Services, including the Site, you consent to receive all communications from us electronically and you confirm that you can access, receive and retain such communications, which may include communications, terms, disclosures, notices, and statements that we provides to you in connection with your use of the Services or activities on the Site. We will provide these electronic communications to you by posting them on the Site or emailing them to you at the email address associated with your use of the Services. All such communications will be considered received by you within 24 hours after the time we post it to our website or email it to you. You must keep all email addresses associated with your use of the Services updated in order to receive communications from us.
7. Investor Due Diligence
By using the Services and the Site to manage your investments in private securities issued or managed by other Users, you acknowledge and agree that all such investments are inherently risky, and you are assuming all risks associated with making such an investment. You acknowledge that Fiducia and its affiliated companies conduct little to no due diligence relating to investments managed using the Services and the Site, and that any due diligence it may have performed might be flawed, dated, and/or inaccurate, or may for a variety of reasons be unrelated to any due diligence you may need to do to safely make such an investment for your purposes, and that you have no right to rely in any way on any actual or assumed due diligence conducted by Fiducia or its affiliates. You will conduct your own due diligence on all deals you are interested in. By using the Services, you unconditionally and forever release Fiducia and its affiliates and their respective agents, officers, directors, partners, representatives and third-party service providers from any and all liability associated with issuer disclosures, due diligence, and representations, even in the event of outright fraud, whether or not it could have reasonably been known or foreseen at the time of inception or at any time thereafter.
Neither Fiducia nor any of its affiliates endorse or have any control over any User Content, including any securities offered or sold by third parties through the Site or the Services, and we expressly disclaim any and all liability in connection with any such User Content. We will not be responsible for the accuracy, usefulness, truthfulness, safety, validity, forthrightness, completeness, or intellectual property rights of or relating to such User Content. You use the Services, including the Site, solely at your own risk. You understand, acknowledge and agree that you are entirely responsible for the consequences of all your use of or reliance on the Service, any User Content, or the Site.
8.1 No Offer of Securities or Advice. You acknowledge and agree that any content and information you may access through the Services or through the Site has been provided by parties other than Fiducia and that nothing contained on the Site may be construed as a solicitation, offer, recommendation or representation of suitability or endorsement of any security or investment by Fiducia. Fiducia is not providing the Services or the Site to provide investment or other advice and nothing therein should be deemed to be a recommendation that you buy, sell, or hold any security or other investment. You further acknowledge and agree that Fiducia does not provide any tax, legal, accounting or other professional advice. In making an investment decision, you must rely on your own examination of an investment, including the merits and risks involved. Fiducia advises that you consult with your own advisors with respect to any matters involved with making an investment.
8.2 Disclaimer of Warranties. THE SERVICES, INCLUDING THE SITE, ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES OF ANY KIND. BY USING THE SERVICES, YOU EXPRESSLY AGREE THAT SUCH USE IS AT YOUR SOLE RISK. NEITHER FIDUCIA, NOR ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS, DESIGNERS, CONTRACTORS, DISTRIBUTORS, MERCHANTS, SPONSORS, LICENSORS OR THE LIKE (COLLECTIVELY “REPRESENTATIVES”) WARRANT THAT THE USE OF THE SERVICES WILL BE UNINTERUPPTED OR ERROR-FREE. NEITHER FIDUCIA NOR ITS REPRESENTATIVES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND FIDUCIA AND ITS REPRESENTATIVES HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ALL TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, FIDUCIA ALSO DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THIS SITE. FIDUCIA EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICES COMPLY WITH SECURITIES OR OTHER LAWS, AND BY USING THE SERVICES YOU ACKNOLWEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH ALL APPLICABLE LAWS.
As a condition to your use of the Services, including the Site, you agree to indemnify, defend and hold harmless Fiducia and all of its Representatives against any and all claims, liabilities, damages, costs or other expenses (including, without limitation, attorneys’ fees) that may arise directly or indirectly out of or from (a) your purchase or sale of any securities using the Services or the Site, (b) your breach of this Agreement, and (c) any action (or inaction) you take or decision you make in reliance on or as facilitated by the Services.
10. Limitations of Liability.
BY USING THE SERVICES IN ANY WAY, YOU ACKNOWLEDGE: (i) THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK; (ii) THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH YOUR USE OF THE SERVICES; AND (iii) THAT IN NO EVENT SHALL FIDUCIA OR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES BE LIABLE FOR ANY DAMAGES, LOSSES OR LIABILITIES OF ANY KIND RELATED TO (a) YOUR PURCHASE OR SALE OF ANY SECURITIES USING THE SERVICES, (b) YOUR RELIANCE ON OR USE OR INABILITY TO USE THE SERVICES, INCLUDING ANY INFORMATION, MATERIALS, PRODUCTS OR SERVICES ON THE SITE, (c) ANY ERRORS OR OMISSIONS IN THE SERVICES, (d) YOUR ACCESS TO, USE OF OR INABILITY TO USE THE SERVICES OR THE SITE, AND (e) ANY FAILURE OF PERFORMANCE, ERROR, OMMISSION, INTERRUPTION, DEFECT OR DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE OR SYSTEM FAILURE OR OTHER COMPUTER MALFUNCION, IN EACH CASE ((a) THROUGH (e)) INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY OR CONSEQUENTIAL DAMAGES, LOST PROFITS AND/OR LOSS OF OR DAMAGE TO PROPERTY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF FIDUCIA OR SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR LIABILITIES.
11. Severability and Waiver.
If any provision of this Agreement is found to be invalid, void, or for any reason unenforceable, it will be construed in such a manner that would make the provision valid or enforceable. If it is not possible to construe the provision in such a manner that would make it valid or enforceable, then only the term or portion of the provision that renders it unenforceable will be stricken without affecting the enforceability of the remaining provisions. Any failure of Fiducia to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision of this Agreement.
Services, constitute the entire agreement between you and Fiducia relating to the Services and the Site, and supersede any prior agreements or understandings not incorporated herein. This Agreement is not intended to modify or amend other agreements you may have with Fiducia or its affiliates regarding other matters.
12. Termination of the Agreement.
Fiducia reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement (and/or your access to all or any part of the Services) at any time and for any reason ithout prior notice or liability. Upon any termination of this Agreement you must promptly stop any use of the Services and this Site. If this Agreement is terminated, any provisions that need to survive termination of this Agreement in order to have their intended force and effect shall survive.
13. Governing Law and Venue.
The Services and the Site are made available to you from the State of Oregon in the United States. If you elect to access and/or use the Services from outside of the United States, we make no warranties that materials on this site are appropriate or available for use in such locations. You agree that you are solely responsible for compliance with any laws of your specific jurisdiction and further agree that you shall not use the Services if you are restricted by any local, state, national or international laws. The laws of the State of Oregon, without regard to its principles of conflict of laws, will govern this Agreement (including any disputes concerning or related to this Agreement). You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts sitting in Portland, Oregon for the purpose of resolving any dispute relating to your access to or use of the Site. Notwithstanding the foregoing, you expressly acknowledge and agree that Fiducia may seek injunctive or other appropriate relief in any court of competent jurisdiction and you consent to exclusive jurisdiction and venue in such courts. You agree that this may require you to submit any disputes related to the use of the Site to final and binding arbitration in the State of Oregon.
14. Class Action and Arbitration.
By using the Services, including the Site, you agree that if any dispute should arise between you and us, you will bring your claim on an individual basis and waive your right to pursue any claim in a class action.
You agree that Fiducia, at its sole discretion, may require you to submit any disputes arising from the use of the Services, the Site, or this Agreement, including disputes arising from or concerning their interpretation, violation, nullity, invalidity, non-performance or termination, as well as disputes about filling gaps in this contract or its adaptation to newly arisen circumstances, to final and binding arbitration under the International Rules of Arbitration (the “Rules”) of the American Arbitration Association, by one or more arbitrators appointed in accordance with the Rules. You agree with us that this section satisfies the writing requirement of the Federal Arbitration Act. Notwithstanding the Rules, however, such proceeding shall be governed by the laws of the State of Oregon and will take place in Portland, Oregon.
Thank you for using the Services, including the Site. Please contact us at firstname.lastname@example.org if you have any questions about our Services, the Site or this Agreement. Electronic mail or other communications through the Site to us (or any of our employees, agents or representatives) may not be secure and we do not guarantee the confidentiality of such communications.