SECTION 13 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND ETHIC. AMONG OTHER THINGS, SECTION 13 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 13 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 13 (ARBITRATION AGREEMENT) CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 13) WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 13.10 (30-DAY RIGHT TO OPT OUT): (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
1. Overview of the Services
The Services include Ethic’s automated investment technology platform. Users must separately sign an agreement with Ethic that entitles the user to have an investment portfolio managed or advised through the Services (“Client Agreement”). Note that advisory services are only provided pursuant to a separate signed Client Agreement, and that these terms do not govern any provision of investment advice that Ethic may provide to its clients.
1.1 Limited license
Subject to your compliance with the Terms, Ethic grants you permission to access and use our Services solely for your personal use or internal business purposes. Unless otherwise specified by Ethic in a separate license, your right to use any Service is subject to the Terms.
1.2 Certain restrictions
As a condition of your use of the Services, you agree not to use the Services for any purpose that is prohibited by the Terms or by applicable law. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion thereof; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other portions of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Ethic’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Services in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Services. In addition, you shall not (and shall not permit any third party) to either (y) take any action or (z) make available any User Content (as defined in Section 4) on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Ethic’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Ethic and other users; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services. Any future release, update or other addition to Services shall be subject to the Terms, unless otherwise stated by Ethic at the time such release, updated or addition is made available to you. Ethic, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Services terminates the licenses granted by Ethic pursuant to the Terms.
1.3 Third-party materials
As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Ethic to monitor such materials and that you access these materials at your own risk.
Excluding any User Content that you may provide (defined in Section 4.1 below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Ethic or Ethic’s suppliers. Neither these Terms (nor your access to the Service) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited license and access rights expressly set forth in Section 1.1. Ethic and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms. For clarity, any statistics and information regarding your use of the Services is separate from, and will not include or be deemed, User Content.
2.1 Registering your account
In order to access certain features of the Services you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Services (“Account”), or has a valid account on a third party service (“Third-Party Account Service”).
2.2 Registration Data
In registering an account on the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; (3) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction; and (4) if you are registering an account on behalf of an organization or entity, you are authorized to represent and bind such organization or entity. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account or password with anyone, and you agree to (1) notify Ethic immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Ethic has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Ethic has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or Third-Party Account Service at any given time. Ethic reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Ethic, or if you have been previously banned from any of the Services.
· What information we may collect about you;
· What we use that information for; and
· With whom we share that information.
4. User content
4.1 User Content
“User Content” means any and all information and content that a user submits to, or uses in connection with, the Services. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Ethic. Ethic is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
You hereby grant (and you represent and warrant that you have the right to grant) to Ethic an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, and otherwise use your User Content, and to grant sublicenses of the foregoing rights, for the purposes of operating and providing the Services to you and to our other users. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
4.3 Content provided by other Users
The Services may contain User Content provided by other Users. Ethic is not responsible for and does not control User Content. Ethic has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Ethic through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Ethic has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Ethic a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.
Ethic may, but is not obligated to, monitor or review the Services and User Content at any time. Without limiting the foregoing, Ethic shall have the right, in its sole discretion, to remove any of your User Content for any reason (or no reason), including if such content violates the Terms or any applicable law. Although Ethic does not generally monitor user activity occurring in connection with the Services or User Content, if Ethic becomes aware of any possible violations by you of any provision of the Terms, Ethic reserves the right to investigate such violations, and Ethic may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove your User Content, in whole or in part, without prior notice to you.
5. Interactions with Other Users
5.1 User responsibility
You are solely responsible for your interactions with other users and any other parties with whom you interact; provided, however, that Ethic reserves the right, but has no obligation, to intercede in such disputes. You agree that Ethic will not be responsible for any liability incurred as the result of such interactions.
5.2 Content provided by other Users
The Services may contain User Content provided by other users. Ethic is not responsible for and does not control User Content. Ethic has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
6. Third-Party Services
The Services may contain links and integrations to third-party websites, applications, services and application programming interfaces (collectively, “Third-Party Services”), and are subject to the terms and conditions (including privacy policies) of each such Third-Party Service. Such Third-Party Services are not under the control of Ethic, and Ethic is not responsible for any Third-Party Services. Ethic provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or their products or services. Your use of the Third-Party Services is at your own risk. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You agree to indemnify and hold Ethic, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Ethic Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your User Content; (b) your violation of the Terms; (c) your violation of any rights of another party, including any users of the Services; or (d) your violation of any applicable laws, rules or regulations. Ethic reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Ethic in asserting any available defenses. This provision does not require you to indemnify any of the Ethic Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Services.
8. Disclaimer of Warranties and Conditions
8.1 As is
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ETHIC PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) ETHIC PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES, INCLUDING ANY PORTFOLIO RECOMMENDATIONS, WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES INCLUDING ANY PORTFOLIO RECOMMENDATIONS, WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. ETHIC MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES, INCLUDING ANY PORTFOLIO RECOMMENDATIONS.
(d) NO ADVICE OR INFORMATION, INCLUDING ANY PORTFOLIO RECOMMENDATIONS, WHETHER ORAL OR WRITTEN, OBTAINED FROM ETHIC OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, ETHIC MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT ETHIC’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
8.2 No liability for conduct of Third Parties
YOU ACKNOWLEDGE AND AGREE THAT ETHIC PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ETHIC PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE SERVICES (INCLUDING ANY END CLIENT USERS IF YOU ARE AN ADVISOR USER, OR ANY ADVISOR USERS OF WHOM YOU ARE AN END CLIENT), USER CONTENT, OR THIRD PARTY SERVICES PROVIDED BY SUCH THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, FINANCIAL ADVISORS AND CUSTODIANS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
8.3 No liability for conduct other Users
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT ETHIC DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES.
NOTWITHSTANDING THE FORGOING THE ETHIC PARTIES DO NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT UNDER THIS SECTION 8 THAT THE ETHIC PARTIES ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
9. Limitation of liability
9.1 Disclaimer of certain damages
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE ETHIC PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT ETHIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, CONTENT, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGHSERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (5) ANY OTHER MATTER RELATED TOTHE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN ETHIC PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN ETHIC PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN ETHIC PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.2 Cap on liability
UNDER NO CIRCUMSTANCES WILL ETHIC PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO ETHIC BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) ONE HUNDRED DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN ETHIC PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN ETHIC PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN ETHIC PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.3 User content
9.4 Basis of the bargain
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ETHIC AND YOU.
If Ethic becomes aware of any possible violations by you of the Terms, Ethic reserves the right to investigate such violations. If, as a result of the investigation, Ethic believes that criminal activity has occurred, Ethic reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Ethic is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including your User Content, in Ethic’s possession in connection with your use of the Services, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that your User Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Ethic, its users or the public, and all enforcement or other government officials, as Ethic in its sole discretion believes to be necessary or appropriate.
In the event that Ethic determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Services, Ethic reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Ethic) that you have violated the Terms;
(b) Delete any of your User Content provided by you or your agent(s) to the Services;
(c) Discontinue your registration(s) with the any of the Services;
(d) Notify and/or send content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(e) Pursue any other action which Ethic deems to be appropriate.
11. Term and termination
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Terms.
11.2 Prior Use
Notwithstanding the foregoing, if you used the Services prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Services (whichever is earlier) and will remain in full force and effect while you use the Services, unless earlier terminated in accordance with the Terms.
11.3 Termination of Services by Ethic
Subject to your Client Agreement, if you have materially breached any provision of the Terms, or if Ethic is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Ethic has the right to, immediately and without notice, suspend or terminate your access to the Services. You agree that all terminations for cause shall be made in Ethic’s sole discretion and that Ethic shall not be liable to you or any third party for any termination of your Account.
11.4 Termination of Services by you
Subject to your Client Agreement, if you want to terminate the Services provided by Ethic, you may do so by (a) notifying Ethic at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Ethic's address set forth below.
11.5 Effect of termination
Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and content associated with or inside your Account (or any part thereof), including your User Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of your User Content associated therewith from our live databases. Ethic will not have any liability whatsoever to you for any suspension or termination, including for deletion of your User Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
11.6 No subsequent registration
If your registration(s) with or ability to access the Services, or any other Ethic community is discontinued by Ethic due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Ethic community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Ethic reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
12. International Users
The Services can be accessed from countries around the world and may contain references to Services and content that are not available in your country. These references do not imply that Ethic intends to announce such Services or content in your country. The Services are controlled and offered by Ethic from its facilities in the United States of America. Ethic makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
13. Arbitration Agreement
Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Ethic and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
13.1 Applicability of Arbitration Agreement
Subject to the terms of this Arbitration Agreement, you and Ethic agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Ethic may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Ethic may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
13.2 Informal Dispute Resolution
There might be instances when a Dispute arises between you and Ethic. If that occurs, Ethic is committed to working with you to reach a reasonable resolution. You and Ethic agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Ethic therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Ethic that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to email@example.com or regular mail to our offices located at 99 Hudson Street, 17th Floor, New York, New York. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
13.3 Waiver of Jury Trial
YOU AND ETHIC HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Ethic are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.4 Waiver of Class and Other Non-Individualized Relief
YOU AND ETHIC AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 13.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 13.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Ethic agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Ethic from participating in a class-wide settlement of claims.
13.5 Rules and Forum
This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Ethic agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Ethic otherwise agree, or the Batch Arbitration process discussed in Section 13.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
You and Ethic agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 13.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
13.7 Authority of Arbitrator
The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 13.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 13.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 13.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 13.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 13.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
13.8 Attorneys’ Fees and Costs
The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Ethic need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
13.9 Batch Arbitration
To increase the efficiency of administration and resolution of arbitrations, you and Ethic agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Ethic by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Ethic.
You and Ethic agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
13.10 30-Day Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 99 Hudson Street, 17th Floor, New York, New York, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.11 Invalidity, Expiration
Except as provided in Section 13.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Ethic as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Ethic makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Ethic at 99 Hudson Street, 17th Floor, New York, New York, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Ethic will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
14. Monitoring and Enforcement
Ethic reserves the right to: (a) remove or refuse to post any of User Content for any or no reason in our sole discretion; (b) take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates these Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for the Ethic; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms.
If Ethic becomes aware of any possible violations by you of these Terms, Ethic reserves the right to investigate such violations. If, as a result of the investigation, Ethic believes that criminal activity has occurred, Ethic reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Ethic is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including your User Content, in Ethic’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce these Terms, (iii) respond to any claims that your User Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Ethic, its Registered Users or the public, and all enforcement or other government officials, as Ethic in its sole discretion believes to be necessary or appropriate.
15. General Provisions
15.1 Electronic communications
The communications between you and Ethic use electronic means, whether you visit the Services or send Ethic e-mails, or whether Ethic posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Ethic in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Ethic provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
You hereby release Ethic Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, 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. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by an Ethic Party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with any Services provided hereunder.
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Ethic’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.4 Force majeure
Ethic shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
15.5 Questions, complaints, claims
If you have any questions, complaints or claims with respect to the Services, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
15.6 Exclusive Venue
To the extent the parties are permitted under this Arbitration Agreement to initiate litigation in a court, both you and Ethic agree that all claims and disputes arising out of or relating to the Terms will be litigated exclusively in the state or federal courts located in the State of New York.
15.7 Governing Law
THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
Where Ethic requires that you provide an e-mail address, you are responsible for providing Ethic with your most current e-mail address. In the event that the last e-mail address you provided to Ethic is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Ethic’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Ethic by sending an email to email@example.com.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
15.11 Export Control
The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Ethic, or any products utilizing such data, in violation of the United States export laws or regulations.
15.12 Consumer Complaints
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
15.13 Entire Agreement
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
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New York, New York 10013