Your access to and use of this website is governed by the following terms and conditions. Please read them carefully as they constitute a legally binding agreement applicable to all users of this website. If you do not agree with these terms, you should refrain from using this website.
This website is not intended for distribution to, or use by, any person in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or that would subject us or our affiliates, directors, officers or employees to any registration or licensing requirement.
Last Updated: February 11, 2012
Welcome to our website, which is operated by Chyzly LLC (referred to as “Operator, “we,” “us” or “our”). Chyzly LLC is the legal business name of Sprigster (Chyzly LLC existed before Sprigster). Operator also operates www.boostahero.com (which, with this website, are referred to collectively as the “Website”).
The Website contains information, statements, tools, articles, features, functionality, software and services (collectively, the “Content”) we believe instrumental in providing a crowdfunding platform for the franchising industry. When we refer to “Project Proponents,” we mean persons who have applied as promoters of a project soliciting contributions with the intent of funding one or more franchisee businesses that they will own. When we refer to “Boosters,” we mean persons who wish to assist the Project Proponents in the funding of their project. When we refer to “Users,” we mean Project Proponents, Boosters and any other person who visits the Website for any reason whatsoever.
Please note that we may modify this Agreement from time to time, with or without notice, and each modification will become effective once posted. We suggest that you review this Agreement on a regular basis to ensure that you understand your current rights and obligations under this Agreement. We also suggest that you print or save a copy of this Agreement for your records. If you utilize a translation of the English language version of this Agreement, you nonetheless agree that the English language version of the Agreement will govern in the event of any contradiction with the translation.
You cannot opt out of, modify or choose not to be bound by any particular provision of this Agreement and still use the Website. If you do not wish to accept the Agreement, you should discontinue use of the Website and any Content.
Who We Are
We are an internet crowdfunding platform. Our goal is to create a venue that efficiently serves the needs of both Project Proponents and Boosters. While we derive our revenue primarily by offering services to Project Proponents who wish to receive crowdfunding for their projects, we specifically tailor our Content to be attractive to Boosters. We may also engage in certain practices, such as search engine optimization and “pay-per-click” advertising programs, in order to maximize Booster traffic at the Website.
We are NOT involved in any transaction between a Project Proponent and a Booster, even though we may from time to time provide tools that enable the transaction to occur. As a result, we do not warrant or guarantee any part of an actual or potential transaction between a Project Proponent and a Booster, including the quality, safety or legality of the project being promoted, the truth or accuracy of the material provided by the Project Proponent or the ability of a Project Proponent to acquire or operate a franchise business. We do require Project Proponents to have completed an application and begun a diligence process with a licensed Franchisor. However, we do not have any ability to evaluate the sufficiency of the Franchisor’s investigations or the truth or accuracy of any material provided by the Franchisor or the ability of a Franchisor to assist the Project Proponent in the successful operation of a franchise business.
We are NOT licensed broker dealers. We are in no way providing any legal, accounting, or business advice relating to the purchase or sale of any business, the hiring of any service advertiser, or the purchase of any products advertised on the website. We do not provide Project Proponents or Boosters with any brokerage services.
We are not liable for your interactions with any organizations and/or individuals found on or through our crowdfunding service. This includes, but is not limited to, delivery of goods and services, and any other terms, conditions, warranties or representations associated with project listings. We do not oversee the closing, establishment or operation of franchisee business. We are not responsible for any damage or loss incurred as a result of any such dealings. All dealings are solely between Boosters and Project Proponents. We are under no obligation to become involved in disputes between Boosters, Project Proponents or Franchisors, or between site members and any third party. In the event of a dispute, you release Operator, its officers, employees, owners, agents and successors in rights from claims, damages and demands of every kind, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and our service.
Project Proponents are wholly responsible for fulfilling obligations both implied and stated in any project listing they create. We reserve the right to cancel a project listing and refund all associated members' payments at any time for any reason. We reserve the right to remove a project listing from public listings for any reason.
We intend to focus primarily upon “all or nothing” crowdfunding. This means that the Project Proponent will not receive any funds if the project financial goal is not reached before the listing expires. However, we reserve the right to permit Project Proponents to do project listings that will provide the Project Proponent with the net proceeds received through the Services even if the project financial goal is not reached before the listing expires. In these circumstances, contributions made to the project, less a 5% processing fee to us and third party processing fees, will be distributed to the Project Proponent at the conclusion of the project listing. Project listings that are not “all or nothing” listings will be labeled as an “Adaptable Project” on the project detail page. We make no guarantees regarding the performance of any payment processor used by the Website. Additionally, because of occasional failures of some credit cards, we cannot guarantee the full receipt of the targeted amount.
Project Proponents may initiate refunds at their own discretion. We are not responsible for issuing refunds for funds that have been collected by Project Proponents or accounting for or auditing such amounts.
To understand our practices, please review our Privacy Notice. The Privacy Notice is incorporated as part of this Agreement and also governs your visit to this Website. You agreethat we can use any data provided by you in accordance with the Privacy Notice.
Services Made Available by Operator
When a Project Proponent makes an application for a project that is approved and results in project listing by us, we will create a listing using the Project Proponent’s listing content and post that advertisement to the Website. When a Booster searches our Website, projects fitting his/her search criteria may appear in search results.
From time to time, we may offer additional services (“Enhancements”). Some Enhancements may allow certain project listings to be modified using special fonts, characters, logos and functionality. Other Enhancements may improve the placement of particular project listings on the Website for a specific period of time by, for example, placing an advertisement at the top of a Booster’s search results or within prominent “featured” areas within the Website. Other Enhancements may be made available from time to time, and we reserve the right to make any Enhancements we deem necessary or advisable and to immediately cease offering any particular Enhancement at our discretion. Any party considering whether to purchase an Enhancement must make sure they fully understand the conditions, cost and, as applicable, the duration of the Enhancement prior to purchasing.
The pricing for all services made available to Project Proponents by Operator may vary from time to time based upon a number of variables. We reserve the right to alter pricing at any time, and have no obligation to provide any refunds to any Project Proponent as a result of any pricing modification. From time to time, we may offer specials, rebates or discounts; these are available on the terms and conditions set by us at our discretion.
The Website includes certain Content that helps Boosters efficiently identify project listings that meet their criteria for financial support. We do not currently charge any registration, access, use or other fees with respect to the use of such Content, whether or not the Booster supports a project listing. Boosters may contribute to any listed project prior to the expiration of the listing. You may contribute any amount you choose. You may contribute to as many Projects as you like.
It is solely your choice whether or not to contribute to any listed project. Making a contribution to a project does not give you any rights in or to that Project, including without limitation any ownership, royalties, control, or distribution rights. We cannot guarantee that any project's financial goal will be met. Any rewards offered to you are between you and the Project Proponent only, and we do not guarantee that rewards will be delivered or satisfactory to you. We do not warrant the use of any funding received by a Project Proponent or the successful outcome of any project or the franchise business contemplated by the project.
Contributions to projects are nonrefundable. For “all or nothing” projects, we may use payment processors that enable us to refrain from charging payments for contributions until the project financial goal has been reached. For project listings that we permit to be listed as Adaptable Projects, there is no reason to delay the payment processing because net proceeds will be distributed to the Project Proponent even if the financial goal is not reached. You acknowledge and agree that your contributions are between you, the Project Proponent, and the payment processor only, and that we are not responsible for contribution transactions, including without limitation any personal or payment information you provide to the payment processor.
We make no representations regarding the deductibility of any contribution for tax purposes. Please consult your tax advisor for more information.
You understand and agree that the services described above do not include any advice or assistance in connection with the sale, purchase or marketing of securities and that the sale of any securities is banned by us.
Other Services Offered by Affiliates
The crowdfunding services we offer may help Project Proponents find franchising opportunities. However, concluding any transaction will often require additional steps, such as negotiating franchise agreements and completing agreements with Franchisors, lenders and other parties. While we do not provide these services, the Website may contain links to other companies that are Franchisors or do offer services associated with these activities (“Affiliates”). If you request our assistance with respect to franchise opportunities, we will, with your consent, provide your information to our Affiliates so that they can assist you with your request. You are not obligated to use the services of any Affiliate that links to the Website or that we may otherwise recommend or suggest.
The fact that we provided a link to a third party website, or that we recommend a particular product, service or Affiliate, does not constitute an endorsement of that website, product, service or Affiliate. Your use of the same is at your own risk. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any Affiliate or the content of their websites. We do not assume any responsibility or liability for the actions, products, or services of any Affiliate.
We may provide lead generation and advertising services to Franchisors. Business brokers, agents, business buyers, independent business sellers, Franchisors, attorneys, and any and all other listings found on the Website are simply advertising purchasers, listing service purchasers, or other advertising clients and are not employed by or otherwise affiliated in any way with us. We are in no way responsible for the actions, representations, or business dealings of any business that advertises and/or appears on the Website.
What Boosters Should Be Aware Of
While generally bound by the entire Agreement, Boosters should take note of some specific aspects of the Website and Content:
1. Our platform empowers you to make contributions to Project Proponents. In order to take advantage of these benefits, you must register as a “new user” by clicking on “Sign up” and submitting a new user registration form. You agree that any registration information you submit will always be accurate, correct and up to date.
2. While we provide a platform for you to support Project Proponents, we cannot ensure that a Project Proponent will always receive your communications. If you have not received a reply to any message sent to a Project Proponent, it could be that the Project Proponent has not checked his/her account or that the email alerting the Project Proponent of your message was intercepted by his/her spam filter.
3. Although we believe the Content to be generally reliable, we do not independently confirm the accuracy of any information on the Website related to a project listed by a Project Proponent. As a consequence, we do not represent or warrant that the Content is accurate, current or complete.
4. We are also not responsible for the actions of any Project Proponent, including, but not limited to, the failure of Project Proponent to comply with the terms of any franchise agreement, to successfully negotiate and close any such agreement or to build construct or operate any franchise business.
5. Advertisements on our Website should not be construed as a recommendation to buy a particular franchise business.
Based on the foregoing, every Booster agrees that the Website and Content are provided for informational purposes only, and that any reliance on any portion of the Content shall be at a Booster’s sole risk.
What Project Proponents Should Be Aware Of
This Agreement is expressly made part of the Project Listing Agreement each Project Proponent executes with us. As a consequence, receipt by you of the Services is contingent upon your compliance with this Agreement, including the following:
1. Our platform empowers you to promote your project and respond to Boosters. In order to take advantage of these benefits, you must register as a “new user” by clicking on “Sign up” and submitting a new user registration form. You must complete an application for listing and we are not required to accept your application and may refuse to do so in our sole discretion. You agree that any application information and project information you submit will always be accurate, correct and up to date.
2. The success of your project funding will depend on many factors outside of our control, including, but not limited to, economic conditions, the attributes of your project, your efforts in promoting your project, and the speed and method by which you respond to questions from potential Boosters. The Operator cannot, and does not, make any representation as to if or how soon your project will be funded or as to the amount of time you will need to devote to receive funding. For best results, you should interact with Boosters and potential Booster frequently and you should check your Website account frequently for questions and make updates.
3. Posting a project listing will require you to disclose your identity. We strongly suggest that you take appropriate security measures.
4. In order to make our Services more effective, we may engage in various general advertising activities intended to attract Boosters to the Website. However, you agree that we are under no obligation to include any references to your project in such advertising.
5. You are responsible for the payment of any taxes associated with your project or its funding.
6. You agree that you are solely responsible for compliance with any and all laws, rules and regulations that may apply to your project including, without limitation, any and all Federal and state securities laws and that we assume no responsibility for your compliance.
What All Users Should Be Aware Of
While the following describes some specific provisions applicable to all Users, you should review all the terms of this Agreement to ensure that you understand your rights and obligations hereunder.
1. You agree that you will not engage in any activity that interferes with or disrupts the access to or functionality of the Website.
2. You agree to treat our employees respectfully. We will not tolerate, under any circumstances, any behavior that is abusive or offensive to any employee or representative of the Operator.
3. You agree not to access (or attempt to access) any of the Content by any means other than through the Website interface. You specifically agree not to access (or attempt to access) any of the Content through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file referenced in the Content from time to time.
4. You agree that you will not reproduce, duplicate, copy, sell, trade or resell the Content for any purpose.
5. You agree that you are solely responsible for (and that Operator has no responsibility to you or to any third party for) any breach of your obligations under the Agreement and for the consequences (including any loss or damage which Operator may suffer) of any such breach.
6. You agree that Operator may stop (permanently or temporarily) providing the Content (or any features within the Content) to you or to Users generally at Operator’s sole discretion, without prior notice to you.
7. You acknowledge and agree that if Operator disables access to your account, you may be prevented from accessing the Content, your account details or any files or other content which is contained in your account.
8. We have the right, but not the obligation, to monitor the Content at all times, including any chat rooms and forums that may hereinafter become available, to determine your compliance with this Agreement.
9. You agree to use the Website and Content at your own risk. We assume no liability or obligation to take any particular measure to assist Users in avoiding potentially fraudulent or other illegal activity. In the event we do provide warnings or messages to Users about any such activity, we do not warrant that such messages are accurate or that such messages will reach any or all Users they should have reached in a timely manner or at all or that such messages or measures will prevent any harm, result or action.
The Website, including the Content, is owned by the Operator or its licensors, and is protected under the copyright, trademark, data misappropriation, unfair competition, and other intellectual property laws of the United States and other countries as well as by international treaties and conventions.
All content on this site is the property of the Operator or its licensors and protected by United States and international copyright laws. The collective work and/or compilation of all content on the Website are the exclusive property of the Operator and are protected by U.S. and international copyright laws. All software used on this site is the property of the Operator or its software suppliers and protected by United States and international copyright laws.
The Website and the Operator’s graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of the Operator, and these trademarks and trade dress may not be used in connection with any product or service that is not owned or operated by Operator in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits Operator. All other trademarks not owned by Operator that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Operator.
License and Website Access
Operator grants you a limited license to access and make personal use of this Website and its Content. This limited license does not permit you to download or modify it, or any portion of it, except with express written consent of Operator. This license does not confer any right to: resell or commercially use the Website or any of its Content; collect and use of any advertisements, descriptions, or prices; derivative use of this Website or any of its Content; download or copy account information for the benefit of another person; or use data mining, robots, or similar data gathering and extraction tools. Neither this Website nor any portion of its Content may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of the Operator. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the Operator without express written consent. You may not use any meta tags or any other "hidden text" utilizing the Operator's name or trademarks without the express written consent of the Operator. Any unauthorized use terminates the permission or license granted by the Operator. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of this Website so long as the link does not portray the Operator or its services in a false, misleading, derogatory, or otherwise offensive matter. You may not use any of the Operator’s logos or other proprietary graphics or trademarks as part of the link without express written permission.
Any violation of this policy may result in a copyright, trademark or other intellectual property right infringement that may subject the offender to civil and/or criminal penalties.
If you believe that your work has been copied and posted on the Website in a way that constitutes copyright infringement, you should provide our Copyright Agent with a written notice that sets forth the infringement details. To be effective, the notice must contain the following information:
1. a description of the copyrighted work that you believe has been infringed;
2. a description of the material that you claim is infringing the copyrighted work and a detailed description of where it is located on the Website;
3. your physical address, telephone number, and email address;
4. a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
5. a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are either the copyright owner or authorized to act on the copyright owner's behalf; and
6. an electronic or physical signature of the copyright owner or the person authorized to act on the copyright owner's behalf.
Please send the notice complying with the foregoing to our Copyright Agent using the following information. If contacting us by email, please include the phrase “Attention – Copyright Agent” in the header of the email.
Sprigster Copyright Agent
c/o Baker Hostetler LLP
Attn.: Mark Mohler
200 S. Orange Avenue, Suite 2300
Orlando, FL 32801-3432
Phone: (407) 810-6632
We reserve the right, in appropriate circumstances and at our discretion, to terminate the privileges of any User who repeatedly infringes the copyrights or other intellectual property rights of the Operator or others.
Content Provided By Users
Users have various opportunities to provide us with Content. These opportunities may include, but are not limited to, videos associated with projects, project updates and User dialog, audio clips, written forum comments, data, text, photographs, software, scripts, graphics, or other information ("Submitting" or "Submission") to the Website (collectively, the "User Submissions"). By Submitting User Submissions on the Site or otherwise through the Service, you:
1. acknowledge that by Submitting any User Submission to the Site, you are publishing that User Submission, and that you may be identified publicly by your User ID in association with any such User Submission;
2. by Submitting any User Submissions through the Site or the Service, you hereby do and shall grant Operator a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with the Website and Operator’s (and its successors and assigns’) business, including without limitation for promoting and redistributing part or all of the Website (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites). You also hereby do and shall grant each other User a non-exclusive license to access your User Submissions through the Website, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions solely for personal, non-commercial use. For clarity, the foregoing license grant to Operator does not affect your other ownership or license rights in your User Submission(s), including the right to grant additional licenses to the material in your User Submission(s), unless otherwise agreed in writing;
4. you agree to pay all royalties and other amounts owed to any person or entity due to your Submission of any User Submissions to us;
5. that the use or other exploitation of such User Submissions by Operator and use or other exploitation by users of the Website as contemplated by this Agreement will not infringe or violate the rights of any third party, including without limitation any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights; and
6. understand that Operator shall have the right to delete, edit, modify, reformat, excerpt, or translate any materials, content or information submitted by you; and that all information publicly posted or privately transmitted through the Website is the sole responsibility of the person from which such content originated and that Operator will not be liable for any errors or omissions in any content; and that Operator cannot guarantee the identity of any other users with whom you may interact in the course of using the Website.
Operator does not endorse and has no control over any User Submission. Operator cannot guarantee the authenticity of any data which users may provide about themselves. You acknowledge that all Content accessed by you using the Service is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
You retain copyright and any other rights you already hold in any User Submission or Content which you submit or post on or through the Website. However, upon submitting or posting the User Submission, you give us (and others acting on our behalf) a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to host, reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute stream, transmit, playback, transcode, copy, feature, market, sell, distribute and otherwise exploit that Content along with all associated copyrightable works or metadata, including without limitation photographs, graphics, and descriptive text. Further, you agree that this license permits us to make such Content available to other companies, organizations or individuals (and to allow other users to), stream, transmit, playback, download, display, feature, distribute, collect, and otherwise use the content and artworks; and to use and publish, and to permit others to use and publish, the name(s), trademarks, likenesses, and your personal and biographical materials.
We reserve the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content you provide for use at the Website. Accordingly, we may revise your Content, or refuse to approve it for publication on the Website, if it does not comply with our policies, violates the intellectual property rights of any third party, or otherwise does not advance our business purposes.
Notwithstanding the foregoing, you agree that you are solely responsible for (and that Operator has no responsibility to you or to any third party for) any Content that you provide for use at the Website and for the consequences of your actions (including any loss or damage which we may suffer) by doing so. You further agree that you are responsible for protecting and enforcing any intellectual property rights you may claim with respect to any Content you provide to us.
Passwords and Account Security
You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Content. Accordingly, you agree that you will be solely responsible to Operator for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Operator immediately at firstname.lastname@example.org.
When you visit the Website or send e-mails to us, you are communicating with us electronically. By doing so, you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
The Termination of Projects
Termination by Project Proponent
If you wish to remove your project listing from the Website for any reason, please email us at email@example.com. For effective processing, please include the phrase “Project Termination” in the header of the email.
Termination by Operator
If, in our sole discretion, we determine that project or project listing violates our guidelines, or that you have misused the Website or materially violated the terms of this Agreement or your Project Listing Agreement, or that your project is not consistent with our Website, for any reason in our sole discretion, we may: (i) terminate or suspend your account, which you acknowledge may delete or otherwise limit your access to the Content, your account details or any files or other content which is contained in your account; (ii) terminate or suspend the Project Listing Agreement and remove your project from the Website without advance notice and without any right to a refund of any fees paid to us; or (iii) pursue any and all remedies available to us at law or in equity.
YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY TERMINATION OR SUSPENSION OF YOUR PROJECT LISTING, ACCOUNT OR YOUR ABILITY TO ACCESS THE INFORMATION AVAILABLE THROUGH THE WEBSITE.
The provisions of this Agreement relating to intellectual property licenses, the disclaimer of warranties, limitations on liability, indemnification obligations, releases, and the resolution of disputes will survive any termination of this Agreement by either party.
DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY
THE WEBSITE AND ALL CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. THE OPERATOR AND ITS OFFICERS, DIRECTORS, AGENTS, AFFILIATES, VENDORS, MERCHANTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS WEBSITE OR THE CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THIS WEBSITE OR THE ACCURACY OR RELIABILITY OF ANY CONTENT PROVIDED THROUGH THE WEBSITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS WEBSITE IS AT YOUR SOLE RISK. THE OPERATOR DOES NOT GUARANTEE THAT THE WEBSITE WILL BE ERROR FREE, AVAILABLE AT ALL TIMES, OR WITHOUT INTERRUPTION.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, THE OPERATOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE OPERATOR DOES NOT WARRANT THAT THE WEBSITE; THE CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE; THEIR SERVERS; OR ELECTRONIC COMMUNICATIONS ARE: (A) FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (B) IMMUNE TO OR FREE FROM THE RISK OF ANY BREACH OF SECURITY. THE OPERATOR WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS WEBSITE OR FROM ANY CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
THE OPERATOR’S LIABILITY, OR THE LIABILITY OF OUR AFFILIATES, OFFICERS, DIRECTORS, AGENTS, VENDORS, MERCHANTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SITE, SERVICES, AND PRODUCTS SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES THAT YOU PAID THE OPERATOR DURING THE ONE-YEAR PERIOD PRIOR TO BRINGING A CLAIM FOR THE SPECIFIC SERVICE OR PRODUCT INVOLVED.
IF ANY JURISDICTION PROHIBITS THE FOREGOING DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS, IN SUCH JURISDICTIONS, THE FOREGOING DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY THE JURISDICTION.
INDEMNIFICATION & RELEASE
You agree to defend, indemnify, and hold harmless the Operator, its affiliates, directors, officers, employees, and agents from and against all claims, damages, and expenses, including reasonable attorney’s fees, arising out of or related to any products or services you purchase in connection with the Website, your use of the Website, or your violation of any third-party right. You are solely responsible for interactions with any other Users of the Website. To the extent permitted by applicable law, you hereby release the Operator from any and all claims or liability related to any product or service available through the Website or any conduct, action, or inaction by the Operator. In connection with the foregoing release, you hereby waive any rights under California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
APPLICABLE LAW & DISPUTES
This Agreement and any dispute of any sort that might arise between you and the Operator shall be governed by and construed in accordance with the laws of the State of Florida, notwithstanding the conflict of laws provisions of any state. You irrevocably and unconditionally (i) consent to submit to the exclusive jurisdiction of the state and federal courts in the County of Orange, Florida (the “Florida Courts”) for any litigation or dispute arising out of or relating to this Agreement or your performance or nonperformance hereunder (including but not limited to collection matters), (ii) agree not to commence any litigation arising out of or relating to this Agreement or the Company’s performance or nonperformance hereunder except in the Florida Courts, (iii) agree not to plead or claim that such litigation brought therein has been brought in an inconvenient forum, and (iv) agree the Florida Courts represent the exclusive jurisdiction for all disputes arising out of or relating to this Agreement, or either parties’ performance or nonperformance thereunder. You agree that regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to your use of the Website, the Agreement, or the Operator’s performance or nonperformance under the Agreement, must be filed within one (1) year after such claim or cause of action arose, or it shall be forever barred.
Notwithstanding the forgoing, any claim or controversy arising out of or relating to this Agreement or to any acts or omissions for which you may contend we are liable in connection with this Agreement, including but not limited to any claim or controversy made by a Project Proponent ("Dispute"), shall be individually, finally and exclusively settled by arbitration in Orange County, Florida. The arbitration shall be held before one arbitrator under the commercial arbitration rules of the American Arbitration Association ("AAA") in force at that time. The arbitrator shall be selected pursuant to the AAA rules. Should no AAA rule regarding the selection of an arbitrator be in effect, you shall select an arbitrator from a panel of arbitrators acceptable to and chosen by the Operator from AAA’s pool of arbitrators. The costs of arbitration shall be paid by the non-prevailing party. To begin the arbitration process, a party must make a written demand and serve such demand on the other party within one (1) year of when the claim or controversy first accrued. Any judgment upon the award rendered by the arbitrator may be entered in the Florida Courts. The arbitrator shall not: (a) award damages in connection with any Dispute in excess of actual compensatory damages; (b) multiply actual damages or award consequential, punitive or exemplary damages; (c) consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding; and (d) shall not have the power to reform or alter this Agreement. Each party irrevocably waives any claim to any of the foregoing. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of arbitration under this Agreement with arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved.
THE TERMS AND THIS AGREEMENT PROVIDE THAT ALL DISPUTES BETWEEN YOU AND THE OPERATOR WILL BE RESOLVED BY BINDING ARBITRATION. ACCORDINGLY, YOU GIVE UP AND WAIVE YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS OR HAVE YOUR DISPUTE HEARD BY A JURY. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOUR RIGHTS WILL BE DETERMINED BY AN ARBITRATOR AND NOT A JUDGE OR JURY.
The Agreement (including, with respect to Project Proponents, the applicable Project Listing Agreement) constitutes the entire agreement between us with respect to your access, use, and receipt of services from the Website and supersedes all prior communications, agreements, negotiations and discussions between you and us relating to the same, whether written or oral. We exclude any representations and warranties previously given or made in relation to the same.
If one or more of the provisions herein are held to be invalid or unenforceable for any reason, such holding shall not affect any other provision hereof, and this Agreement shall be construed as if such provision had never been contained herein. This Agreement shall be binding upon and inure to the benefit of each of us and our respective heirs, administrators, legal representatives, successors and assigns. It is our mutual and express intent that the rights and obligations set forth herein apply to us only, with no third-party beneficiary rights intended. This Agreement may not be modified or amended without the written agreement of both parties. Waiver of any term of this Agreement shall not affect any other term or subsequent performance of the waived term
We do not have any obligation to investigate the truthfulness or accuracy of any content provided by you. Nonetheless, we reserve the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content you provide for use at the Website. Accordingly, we may revise your Content, or refuse to approve it for publication on the Website, if it does not comply with the following Content Guidelines, as determined by us in our sole discretion:
1. All content must be truthful and not misleading.
2. The content must be directly related to its purpose.
3. The content must not infringe anyone’s rights, violate the law or otherwise be inappropriate. Therefore, we reserve the right to remove or edit: (a) any personal information that can be used to identify or contact any person; (b) content that violates the intellectual property rights of any third party; (c) any promotional content that would promote other websites, businesses, services or products unaffiliated with this Website; (d) any content which disparages the Website, the Content or the Operator or any of its employees; and (e) obscene, abusive, discriminatory or illegal content.
4. Users who post content must have all legal rights to post the content. Reviews and other similar content submitted by a User are the subjective opinions of the User who posted the content. They do not constitute the opinions of the Operator and are not endorsed by us.