- Description of the Site. The Site allows access and use of TCMI’s services to the extent and in the manner offered through the Site.
- Electronic Signatures. By using the Service, you agree to transact electronically through the Site. You agree that your electronic signature is the legal equivalent of your manual signature. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing. You also agree that no certification authority or other third party verification is necessary to validate your electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature.
- Communications Consent. By providing your telephone number, you are providing express written consent to receive communications from TCMI, (including its affiliates, agents, service providers, and affiliates for the purposes of defined above) for any purpose, including but not limited to marketing various services from both TCMI and companies TCMI has joint marketing agreements with. Additionally, you agree to receive communications from TCMI regarding your any service, and any information you may have obtained via your use of a Website. You agree that these communications include, but are not limited to, the use of an Automated Telephone Dialing System, prerecorded and/or artificial voice, SMS, MMS, text, fax, email or other similar means. Note, regardless of whether your phone number is registered on a state or federal Do Not Call list. You agree that TCMI is not responsible for any charges to you regarding these communications. Standard voice and data rates may apply. Further, you understand that you do not need to provide this consent to call as a condition to receive any good or service, in which case you will not provide your phone number.
- Password. You are required to choose a password and a user name when setting up your account or otherwise enrolling in provided services. You are responsible for maintaining the confidentiality of your user name and password, account information, and all activities that occur through the use of your password, account, or as a result of your access to the Site. You agree not to share your password, account information, or access to the Site with any other person. You agree to immediately notify TCMI of any actual or suspected unauthorized use of your account or password. TCMI will not be responsible for any loss whatsoever arising from the misappropriation of your password by a third party.
- Intellectual Property and Rights to Access Site.
- License. Subject to this Agreement, TCMI hereby grants you a non-exclusive, non-transferable license for your or your affiliates’ internal business purposes and in order to manage information regarding your business: (i) to access and use the Service; (ii) to access and use reports, materials or other content generated through or available on the Site; and (iii) reproduce or distribute solely within your organization or to your affiliates reports, materials or other content generated through or available on the Site. All rights not explicitly granted in this Agreement are reserved by TCMI. You may not use the Site in any manner inconsistent with this Agreement.
- Trademark Notices. All trademarks, service marks, trade names, and logos contained in the Site are the property of their respective owners.
- Links to Third Party Sites. The Site does contain links to other Web Sites (“Linked Sites”) and access to third party content, products and services. These Linked Sites are not under TCMI control and TCMI is not responsible for the content of any Linked Site, including, without limitation, any link contained in a Linked Site, or any changes or updates to a Linked Site. TCMI is not responsible for webcasting or any other form of transmission received from any Linked Site. However, TCMI is providing these links to you as an integral part of the functionality of the Site. Notwithstanding the foregoing, you are still responsible for your interaction with such third party websites. You bear all risks associated with the access to, and use of, such websites and third party content, products and services.
- No Unlawful or Prohibited Use. By using the Site, you represent and warrant to TCMI that you will not use the Site in any manner that: (a) is defamatory, derogatory, degrading or harassing of another or constitutes a personal attack; (b) invades another’s privacy or includes, copies or transmits another’s confidential, sensitive or personal information; (c) promotes bigotry, racism, hatred or harm against any group or individual; (d) is obscene or not in good taste; (e) violates, infringes or promotes the violation or infringement of another’s rights, including intellectual property rights; (f) violates or promotes the violation of any applicable laws or regulations; (g) contains a solicitation of funds, goods or services, or promotes or advertises goods or services; (h) contains any viruses, Trojan horses, or other components designed to limit or harm the functionality of a computer; (i) could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site; or (j) for any purpose that is prohibited by these terms, conditions, and notices. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site. We may report you to the relevant authorities and may act under the fullest extent of applicable laws if you transmit or upload content intended or designed to cause harm.
- Changes to Site. We reserve the right to modify, suspend, or discontinue this Site, in whole or in part, at any time, with or without notice.
- THIS SITE, INCLUDING WITHOUT LIMITATION, THE CONTENT AND OTHER MATERIALS CONTAINED IN OR ACCESSIBLE THROUGH THIS SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO ALL SUCH MATERIALS ARE DISCLAIMED. NO WARRANTY IS MADE THAT THIS SITE OR ITS CONTENT OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE OR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NO WARRANTY IS MADE CONCERNING THE ACCURACY OF THE INFORMATION CONTAINED ON THE SITE, OR THE QUALITY OF ANY SERVICES AVAILABLE THROUGH THE SITE. NO REPRESENTATION OR WARRANTY IS MADE THAT THIS SITE OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHER, TCMI DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE TO COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM USE OF THE SITE.
- IN STATES WHICH RESTRICT OR DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, THE ABOVE EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER THE LAW.
- Limitation of Liability. YOU UNDERSTAND THAT IN NO EVENT WILL TCMI OR ITS MANAGERS, MEMBERS, OFFICERS, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, OR AGENTS BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, BREACH OF STATUTORY DUTY, STRICT LIABILITY OR ANY OTHER THEORY, ARISING OUT OF: (A) YOUR USE OR INABILITY TO USE THE SITE, OR (B) YOUR RELIANCE ON ANY SERVICES OR CONTENT PROVIDED BY THE SITE; EVEN IF ANY OF SUCH PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALSO, IN NO EVENT WILL ANY OF THE ABOVE IDENTIFIED PARTIES IN THIS SECTION BE LIABLE TO YOU FOR AN AMOUNT GREATER THAN $500 (USD).IN STATES WHICH RESTRICT OR DO NOT ALLOW THE ABOVE LIMITATIONS OF LIABILITY, THE ABOVE LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER THE LAW.
- We shall defend you against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify you for any damages finally awarded against, and for reasonable attorney’s fees incurred by you in connection with any such Claim; provided, that you (a) promptly give us written notice of the Claim; (b) give us sole control of the defense and settlement of the Claim (provided that we may not settle any Claim unless the settlement unconditionally releases you of all liability); and (c) provide to us all reasonable assistance, at our expense.
- You shall defend us against any claim made or brought against us by a third party alleging that your use of the Services in violation of this Agreement, or the data or information you submit through the Service, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify us for any damages finally awarded against, and for reasonable attorney’s fees incurred by us in connection with any such Claim; provided, that we: (a) promptly give you written notice of the Claim; (b) give you sole control of the defense and settlement of the Claim (provided that you may not settle any Claim unless the settlement unconditionally release us of all liability); and (c) provide to you all reasonable assistance, at our expense.
- This Section 12 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
- Security. We have implemented commercially reasonable administrative, procedural, and technical measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, and disclosure. Measures will vary depending on the sensitivity, format, location, amount, distribution and storage of the Personal Information. However, due to the nature of the Internet and related technology, we cannot absolutely guarantee the security of Personal Information, and TCMI expressly disclaims any such obligation. You hereby acknowledge and understand that such risk is inherent in interacting with any website, including this Site, and take full responsibility for any harm, danger or damage that ensues.
- Termination/Access Restriction.
- Termination. TCMI reserves the right, at its sole discretion, to terminate or limit your access to the Site and the related services or any portion thereof at any time, without notice.
- Arbitration & Class Action Waiver
- PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND TCMI CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND TCMI TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. THIS MEANS THAT YOU WILL NOT BE ABLE TO BRING A CLASS, COLLECTIVE, OR REPRESENTATIVE LAWSUIT IN A COURT OF LAW BEFORE A JUDGE OR JURY CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS COVERED BY THE ARBITRATION AGREEMENT AND ARE INSTEAD AGREEING TO SUBMIT ANY SUCH DISPUTE SOLELY ON YOUR OWN BEHALF TO AN IMPARTIAL ARBITRATOR.
- To initiate arbitration, the party desiring to pursue a legal dispute must prepare a written demand setting forth the claim(s) and deliver the written demand within the applicable statute of limitations period by hand or first class mail to the representatives of the other party. You and TCMI agree that the arbitration shall be administered by American Arbitration Association (“AAA”) before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA. Except to the extent that they are modified by the rules below, if you are an individual person, the AAA Consumer Arbitration Rules that are in effect at the time of the filing of the demand (and that are available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf) will apply.
- The parties agree that the applicable AAA rules are modified as follows:
- Any arbitrator must be neutral as to all parties. Standards for the recusal of an arbitrator shall be the same standards under which trial judges are recused under California state law.
- No party is entitled to its attorneys’ fees, except as may be awarded in a matter authorized by and consistent with applicable law.
- All discovery shall be subject to any and all objections available under FRCP 26(b). Each party shall avoid broad or widespread collection, search, and production of documents, including electronically stored information (“ESI”). If a compelling need is demonstrated by the requesting party, the production shall: (i) be narrowly tailored in scope; (ii) only come from sources that are reasonably accessible without undue burden or cost; and (iii) be produced in a searchable format, if possible without undue burden or cost, and which is usable by the receiving party and convenient and economical for the producing party. Where the costs and burdens of the requested discovery outweigh its likely benefit, considering the needs of the case, the amount in controversy, and the importance of the discovery in resolving the issues, the arbitrator shall deny such requests or order production on condition that the requesting party advance to the producing party the reasonable costs involved in making the production, subject to the allocation of costs in the final award.
- The arbitrator shall have the authority to award the same damages and other relief that would have been available in court pursuant to the law governing the dispute(s).
- Either party shall have the right to file motions to dismiss and motions for summary judgment/adjudication.
- The arbitrator shall have the authority to issue an award or partial award without conducting a hearing on the grounds that there is no claim on which relief can be granted or that there is no genuine issue of material fact to resolve at a hearing.
- The Federal Rules of Evidence shall apply to all arbitration proceedings.
- The arbitrator must issue a decision in writing, setting forth in summary form the reasons for the arbitrator’s determination and the legal basis therefor.
- The arbitrator’s authority shall be limited to deciding the case submitted by the parties to the arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations except to preclude the same claim from being re-arbitrated between the same parties.
- The parties may settle any dispute on a mutual basis without involvement of the arbitrator.
- You will pay the first $250, and TCMI will pay all other filing, administrative, or hearing fees. If TCMI initiates arbitration, TCMI will pay all filing, administrative, and hearing fees. Regardless of which party initiates arbitration, you will remain responsible for your attorneys’ fees and costs unless the law governing the Covered Claim provides for an award of attorneys’ fees and costs and the arbitrator determines as part of the arbitration award that you may recover a certain amount of attorneys’ fees and costs.
- Persons Not of Age of Majority. Persons who are not 13 years of age are not eligible to use the Site, and no information in relation to such persons should be included in a Submission.
TRI-AD Capital Management, Inc.
Attn: Legal Department
221 West Crest Street, Suite 300
Escondido, CA 92025