End User License Agreement
Updated: November 22, 2022
a. Scope of License: By accepting this Agreement, by electronically indicating You “agree” or “accept” by clicking or marking the appropriate location below or by using the Services, You agree to be bound by the terms of this Agreement. If You do not agree to this Agreement, then You may not use the Services. Minor children (persons under the age of eighteen (18) years old) may not use the Services. A license is hereby granted to You for the Services. The license granted to You is a limited, non-exclusive, non-transferable right and license to use the Services on a device that You own or control and as permitted by any usage rules set forth in any applicable mobile application store terms and conditions (the “Usage Rules”) solely for personal purposes consistent with the terms of this Agreement and in accordance with any instructions provided by Capitalize or a Third Party Provider. This license is granted to You for Your use of the Services at Your own risk. This license does not allow You to use the Services on any other device or on any device that You do not own or control, and You may not distribute or make the Services available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, trade, sell, resell, redistribute or sublicense the Services. You agree that the Services and all upgrades, corrections, and enhancements thereto, are and shall continue to be, at all times property of Capitalize. You may not copy (unless expressly permitted by this Agreement and the Usage Rules), decompile, reverse engineer, disassemble, reproduce, attempt to derive the source code of, modify, or create derivative works of the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services). You may not provide access to or give any part of the Services to any third party or make the Services available on any file-sharing or application hosting service. Any attempt to do so is a violation of the rights of Capitalize, Third Party Providers, and/or their licensors. If You breach this restriction, You may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Capitalize that replace and/or supplement the original Services, unless such upgrade is accompanied by a separate license expressly superseding this Agreement, in which case the terms of that license will govern.
b. Content and Use of Services. Content includes any data, information, materials, text, graphics, images, music, software, audio, video, works of authorship of any kind, that are uploaded, transmitted, posted, generated, stored or otherwise made available through the Services (“Content”), which will include without limitation and Content that account holders (including You) provide through Your use of the Services. Making Your Content available through Your use of the Services, You grant Capitalize a worldwide, royalty-free, non-exclusive license to host and use Your Content. Archive Your Content frequently. You are responsible for lost or unrecoverable Content. You must provide all required and appropriate warnings, information and disclosures. Capitalize is not responsible for any of Your Content that You submit through the Services.
You agree not to use, nor permit any third party to use, the Services to upload, post, distribute, link to, publish, reproduce, engage in, promote or transmit any of the following:
- Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that is excessively violent, incites or threatens violence, encourages “flaming” others or criminal or civil liability under any local, state, federal or foreign law;
- Content that would impersonate someone else or falsely represent Your identity or qualifications, or that may constitute a breach of any individual’s privacy; is illegally unfair or deceptive, or creates a safety or health risk to an individual or the public;
- Except as permitted by Capitalize in writing, investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication or spamming or flooding;
- Virus, Trojan horse, worm or other disruptive or harmful software or data; and
- Any Content that You do not own or have the right to use without permission from the intellectual property rights owners thereof.
You are responsible for verifying the status, receipt, and acceptance of Your retirement account(s) rollover to the applicable Third Party Providers and, if necessary, for filing anything manually in the event that the applicable Third Party Providers reject Your electronically filed rollover request. To the extent required by applicable law and regulation, Capitalize stores and maintains information that You provided to Capitalize.
d. Third Party Services. For some Third Party Services, we may submit an application on Your behalf using Your information to assist You in obtaining a benefit provided by a Third Party Provider. You acknowledge that Capitalize does not determine if You receive the benefit, and that You are solely responsible for meeting the third party’s requirements and complying with applicable laws and regulations. You may need to provide us with Your retirement account number, password, security questions and answers, and login information (“Login Details”), as well as your contact information. When You authorize Capitalize to share information with Third Party Providers to rollover Your retirement account(s) or to provide other Third Party Providers services requested by you, You understand that those Third Party Providers may contact You regarding Your request and for related purposes as described in those Third Party Providers’ privacy policies. If You supply Your contact information through the Services and select the option to have Third Party Providers contact You, You agree that Capitalize may share the contact information You provided with Third Party Providers and those Third Party Providers may contact You using the contact information You provided (including prerecorded and/or by autodialer), regarding investment and financial services and products. Furthermore, You understand that Your consent is not a condition of any purchase, and that You can revoke Your consent for sharing the contact information with Third Party Providers at any time by e-mailing us at firstname.lastname@example.org. To stop receiving calls from Third Party Providers, You must opt-out directly with the Third Party Providers. You hereby represent that You have the authority to provide the Login Details and contact information to Capitalize and You expressly appoint Capitalize as Your, or the third party who owns the Login Details’, agent with limited power of attorney to access any Third Party Services on Your behalf. You must provide true and accurate information. Your participation in Third Party Services indicates Your acceptance of any applicable Third Party Provider’s terms and conditions for such Third Party Services and their information collection, use, and disclosure practices as defined in their privacy policies. If You sign up for a Third Party Service that requires access to Your information on an ongoing basis and You subsequently want us to stop making Your information available to such Third Party Provider, You should discontinue use of the Third Party Services. You should evaluate all Third Party Services based on Your own assessment and review of their terms and conditions and privacy policies.
The Services may include a feature that allows You to import, where applicable, certain information from participating Third Party Providers. You are responsible for verifying the accuracy of the information that is imported by You and by Third Party Providers. Capitalize is not liable for any errors, fraud or other irregularities in the information that You or any Third Party Provider imports.
We will assist You in rolling over Your retirement account(s) to a Third Party Provider solely based on the information You have provided. You will provide this information by uploading relevant documents in an acceptable electronic format and in written responses to questions asked through our secure portal. It is Your responsibility to promptly provide all information that we require for the preparation and rollover of Your retirement account(s). You represent that all information You provide is true, accurate and that You have the right to share the information with Capitalize.
We have the right, in our sole discretion, to cancel Your use of the Services if You fail to provide requested information or do not respond to Capitalize’s requests in a timely manner.
Capitalize’s assistance in rolling over of Your retirement account(s) cannot be relied upon to discover errors, fraud or other irregularities in Your retirement account(s) and other documents, should any exist. We will not independently audit or otherwise verify the information You or Third Party Providers submit, although we may ask You for clarification of some of the information. If You identify any errors in Your retirement account(s) and documents provided to assist with the rolling over of Your retirement account(s), You agree to promptly notify Capitalize to correct the errors.
e. Third Party Materials. Certain Services may display, include or make available content, data, information, applications or materials from Third Party Providers (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, You acknowledge and agree that Capitalize is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Capitalize does not warrant or endorse; does not assume, and will not have any liability or responsibility to You or any other person for: any Third Party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to You.
f. Proprietary Information and Restrictions. You agree that the Services contain proprietary content, information, and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, trademark, and trade secret, and that You will not use such proprietary content, information or materials in any way whatsoever except for the use permitted under this Agreement. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the, in any manner, and You shall not exploit the Services in any unauthorized way whatsoever, including but not limited to: in violation of any law or regulation; by trespass; in violation of the terms of this Agreement; or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Capitalize is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Services. In addition, the Services, Third Party Services, and Third Party Materials (collectively, the “Materials”) that may be accessed from, displayed on or linked to from the Services are not available in all languages or in all countries. Capitalize makes no representation that Materials are appropriate or available for use in any particular location. To the extent You choose to access such Materials, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Capitalize, and its licensors, reserve the right to change, suspend, remove, or disable access to the Services or Third Party Services at any time without notice. In no event will Capitalize be liable for the removal of or disabling of access to any such Services or Third Party Services. Capitalize may also impose limits on the use of or access to the Services or Third Party Services, in any case and without notice or liability.
You shall not, and shall not permit any users of the Services or any other party to, engage in, solicit, or promote any activity that is objectionable or may be illegal, violates the rights of others, is likely to cause notoriety, harm or damage to the reputation of Capitalize or could subject Capitalize to liability to third parties, including: (i) unauthorized access, monitoring, interference with, or use of the Services or third party accounts, data, computers, systems or networks; (ii) interference with others’ use of the Services or any system or network, including mail bombing, broadcast or denial of service attacks; (iii) unauthorized collection or use of personal or confidential information, including phishing, pharming, spidering, and harvesting; (iv) viewing or other use of any Content that, in Capitalize’s opinion, is prohibited under this Agreement; (v) any other activity that places Capitalize in the position of fostering, or having potential or actual liability for, illegal activity in any jurisdiction; or (vi) attempting to probe, scan, penetrate or test the vulnerability of a Capitalize system or network or to breach Capitalize’s security or authentication measures, whether by passive or intrusive techniques. Capitalize reserves the right to not authorize and may terminate Your use of the Services based on reasonable suspicion of Your activities, business, products or services that are objectionable or promote, support or engage in any of the restricted uses described above.
g. Fair Credit Reporting Act. You understand and agree that Capitalize is not a consumer reporting agency as defined by the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. (“FCRA”), and that the Services do not constitute “consumer reports” as defined in the FCRA. You understand that any information you provide to Capitalize in order to use the Services has not been collected by Capitalize for credit purposes and is not intended to be indicative of any consumer’s credit worthiness, credit standing, credit capacity, or other characteristics listed in Section 603(d) of the FCRA. You agree that you will not use the Services to determine any consumer’s eligibility for any product or service to be used by a consumer for personal, family, or household purposes. You also agree that you will not use the Services or any information received through the Services in whole or in part (i) as a factor in establishing a consumer’s eligibility for credit, (ii) as a factor in establishing a consumer’s eligibility for insurance, (iii) for employment purposes, (iv) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority, or (v) in connection with any permissible purpose as defined by the FCRA. Any use of the Services by you in violation of this paragraph shall also constitute an unacceptable use.
h. Capitalize may freely use feedback You provide. You agree that Capitalize may use Your feedback suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant Capitalize a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use the feedback You provide to Capitalize in any way.
i. Capitalize is not an Investment, Financial or Tax Adviser or Broker-Dealer. Capitalize is not an Investment Adviser as defined by the federal Investment Advisers Act of 1940 or under any state securities legislation, and Capitalize is not a broker or dealer as defined under the federal Securities Exchange Act of 1934 or under any state securities legislation. Capitalize is not providing, or agreeing to provide, the Services or any Content in a fiduciary capacity or to provide fiduciary investment advice under the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended. Capitalize provides general educational information about financial products and does not hold itself out to be an investment adviser, financial adviser, broker or dealer. Capitalize does not provide any advice as to the value of securities or as to the advisability of investing in, purchasing, selling securities or engaging in investment strategies, nor does it issue or promulgate analyses or reports concerning securities, it does not recommend any account type as being appropriate for any specific investor, and it does not effect securities transactions for the accounts of others. Capitalize does not make recommendations of other investment advisers or broker-dealers; rather, it provides tools to help You choose investment advisers or broker-dealers based on factors that You select as being important to You. Capitalize may assist in communicating with Third Party Providers on Your behalf. In doing so Capitalize operates in an administrative capacity in carrying out Your instructions and expressly disclaims any fiduciary duty or best interest obligation. You agree that Capitalize is not acting as Your agent or fiduciary in connection with Your use of the Services. In addition, the Capitalize chat function does not include any legal or investment advice, investment planning, or other areas of advice other than what are included with the Services. You should not rely on the Services as a primary basis for investment decisions. If You desire receiving personalized advice about what account type, investment strategy or particular investment is most appropriate for You, then you should consult with a registered investment adviser or a broker-dealer.
Retirement accounts are subject to specialized treatment under federal and state tax laws and that treatment can change from year to year. Although Capitalize does provide some general educational materials about taxation issues, Capitalize does not provide any personalized advice to You about Your individual tax situation. You should consult with Your individual tax adviser concerning Your personal tax situation.
j. You grant Capitalize a Limited Power of Attorney (“LPOA”). By using our Services, you expressly authorize Capitalize to access your Account maintained by third
parties, on your behalf as your agent. Capitalize will submit information including usernames and passwords that you provide to log you into your Provider’s site. You hereby authorize and permit Capitalize to use and store information submitted by you through the Services (such as account passwords, usernames and security questions) to accomplish the foregoing and to configure our Services so that they are compatible with the third party sites for which you submit your information. For purposes of this Agreement, you grant Capitalize a limited power of attorney, and appoint Capitalize as your attorney-in-fact and agent, to access third party sites, and to retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN CAPITALIZE IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, CAPITALIZE IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY.
This LPOA authorizes Capitalize as your agent to conduct certain limited activity in your Employer Retirement Savings Account (“ERSA”) or Individual Retirement Account (“IRA”). Capitalize will be authorized to initiate a rollover and to request information regarding your account. Capitalize will not be authorized to request or alter any security information for your ERSA, trade any securities, or to initiate asset withdrawals.
Name of Agent: Capitalize Money, Inc.
You certify that You are the registered owner of the account(s) provided to us and authorize Capitalize to act as authorized Agent. THIS LIMITED POWER OF ATTORNEY DOES NOT AUTHORIZE AGENT TO CHANGE CLIENT’S USERNAME OR PASSWORD, ADD, DELETE OR CHANGE CLIENT OR ACCOUNT INFORMATION, TRADE SECURITIES, WITHDRAW FUNDS, OR ARRANGE A LOAN.
k. Capitalize may monitor Content. Capitalize may, but has no obligation to, monitor access to or use of the Services or Content or to review or edit any Content for the purpose of operating the Services, to ensure compliance with this Agreement, and to comply with applicable law or other legal requirements. We may disclose any information necessary to satisfy our legal obligations, protect Capitalize or its customers, or operate the Services properly. Capitalize, in its sole discretion, may refuse to post, remove, or refuse to remove, or disable any Content, in whole or in part, that is alleged to be, or that we consider to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
l. We may tell You about other Capitalize Services. You may be offered other services, products, or promotions by Capitalize (“Capitalize Services”). Additional terms and conditions and fees may apply. With some Capitalize Services You may upload or enter data from Your account(s) such as names, addresses and phone numbers, purchases, etc., to the Internet. You grant Capitalize permission to use information about Your business and experience to help us to provide the Capitalize Services (including other products and services You might be interested in), to develop new products and services, and to enhance the Services.
m. Communications. Capitalize may be required by law to send You communications about the Services or Third Party Services. You agree that Capitalize may send these communications to You via email or by posting them on our websites.
n. You will manage Your passwords and accept updates. You are the only person authorized to use Your user ID and password. You shall not permit or allow other persons to have access to or use Your user ID and password. You are responsible for securely managing Your password(s) for the Services and to contact Capitalize if You become aware of any unauthorized access to Your account. The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve the Services. You agree to receive these updates. You are responsible for protecting the information on Your computer such as by installing anti-virus software, updating Your software, password protecting Your files, and not permitting third party physical or electronic access to Your computer or retirement account information.
o. Payment, Fees, and Commissions. For Capitalize Plus Services, we may require an annual payment of a Membership Fee for use of those Services and you agree to pay such fees. Payments will be billed in U.S. dollars, and your account will be charged upon purchase and when you provide your payment information, unless stated otherwise in applicable payment provisions.
You may be charged a Membership Fee in advance on an annual basis or other recurring interval disclosed to you prior to your purchase. Your payment to Capitalize will automatically renew at the end of the applicable subscription period but you can cancel a subscription at any time. For annual subscriptions, we will send you a reminder with the then-current subscription fee. We do not provide refunds or credits for any cancellations or partial subscription period.
We reserve the right to change the subscription Fee. If Capitalize does change the Membership Fee, Capitalize will provide notice of the change on the Site or in email to you before the change is to take effect.
p. Termination. The license is effective until terminated by You or Capitalize. Capitalize may terminate the license at any time. Capitalize reserves the right to refuse to assist You with the rolling over of Your retirement account(s) it its sole discretion. Your rights under this license will terminate automatically without notice from Capitalize if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the Services, and destroy all copies, full or partial, of the Services, and if requested by Capitalize, certify to Capitalize such deletion occurred. Additionally, the ability to meet Your rollover deadline, if any, is subject to reasonable timing allowed, presentation of documents and Your responses to inquiries or material required to rollover Your retirement account(s).
q. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES, CONTENT, AND MATERIALS ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE SERVICES, CONTENT, AND MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CAPITALIZE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, CONTENT, AND MATERIALS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY OF, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, RELIABILITY, OF QUIET ENJOYMENT, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CAPITALIZE AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. CAPITALIZE, ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
r. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL CAPITALIZE, ITS AFFILIATES AND SUPPLIERS, BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OR THEFT OF DATA, FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENTS, USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET CAPITALIZE SYSTEM REQUIREMENTS, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE MATERIALS, SERVICES, OR CONTENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF CAPITALIZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF CAPITALIZE, ITS AFFILIATES AND SUPPLIERS FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAYABLE FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM.
s. Indemnification. You agree to indemnify and hold Capitalize and its affiliates and suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys’ fees and costs, arising out of Your use of the Services, Content, and Materials or breach of this Agreement (collectively referred to as “Claims”). Capitalize reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by Capitalize in the defense of any Claims.
t. Arbitration. Other than claims and controversies involving any (i) violation of any of the proprietary rights of Capitalize or Third Party Providers, including claims in equity or law to protect the intellectually property rights of Capitalize, Third Party Providers, or any of our service providers, (ii) any claim related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (iii) any claim for injunctive relief, any controversy, claim or counterclaim, arising out of or in connection with this Agreement (each, a “Dispute” and collectively, the “Disputes”) will be finally and exclusively resolved by binding arbitration. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between You and Capitalize in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND CAPITALIZE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org.
Your arbitration fees and Your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. Each Party will bear their own costs of arbitration unless such costs are determined to by the arbitrator to be excessive and in that case, we will pay all arbitration fees and expenses (but not Your attorneys’ fees).The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either party.
The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in New York County, New York.
Except as otherwise provided herein, the parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in New York County, New York, and the parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts.
In no event shall any Dispute brought by either party related in any way to the Site be commenced more than 2 years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the parties agree to submit to the personal jurisdiction of that court.
The arbitrator will decide the rights and liabilities, if any, of You and Capitalize. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Consumer Rules, and the Terms and Conditions. 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and Capitalize.
The Parties agree that any arbitration shall be limited to the Dispute between the parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
If this provision is found to be illegal or unenforceable, then neither party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the parties agree to submit to the personal jurisdiction of that court.
u. Export Restrictions. You may not use or otherwise export or re-export the Services except as authorized by United States law and the laws of the jurisdiction in which the Services were obtained. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries; (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals; or (c) the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Services, Materials, or Third Party Services for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
v. Use With Your Mobile Device. Mobile access to the Services requires an authorized app and may not be available for all mobile devices or telecommunication providers. You will need to check the Services website to ensure Your mobile device and telecommunications provider is compatible with Capitalize. Capitalize is not obligated to provide a compatible version of the Services for all mobile devices or telecommunication providers, which are subject to change by Capitalize at any time with reasonable notice to You. YOU UNDERSTAND THAT TEXT AND / OR DATA RATES MAY APPLY FROM YOUR MOBILE SERVICE PROVIDER FOR USE OF THE SERVICES AND THIRD PARTY SERVICES. You expressly agree You are solely responsible for any and all text and data charges incurred for the use of the Services on Your mobile device. Further, You understand that if You do not remove the Services from Your mobile device that data may continue to be collected by Your mobile device.
w. Additional Terms Relating to Apple. The terms in this section shall only apply if the Services is provided through the Apple iTunes App Store.
1. Acknowledgement: You acknowledge that this Agreement is between You and Capitalize only, and not with Apple, and Capitalize, not Apple, is solely responsible for the Services and the content thereof.
2. Scope of License: The license granted to You for the Services is a limited, non-transferable license to use the Services on an iPhone OS Product that You own or control and as permitted by the Usage Rules set forth in the Apple iTunes App Store Terms of Service and any third party terms of agreement applicable to the Services.
3. Maintenance and Support: Capitalize and not Apple is solely responsible for providing any maintenance and support services with respect to the Services. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
4. Warranty: Capitalize is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Services to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the Services to You. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Capitalize’s sole responsibility.
5. Product Claims: Capitalize, not Apple, is responsible for addressing any user or third party claims relating to the Services or the user’s possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
6. Intellectual Property Rights: You acknowledge that, in the event of any third party claim that the Services or Your possession and use of the Services infringes that third party’s intellectual property rights, Capitalize, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. Legal Compliance: You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that is on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal Regulations; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
8. Capitalize Contact Info: Direct any questions, complaints or claims to: Capitalize Money, Inc. at email@example.com
9. Third Party Terms of Agreement: You must comply with any applicable third party terms of agreement when using the Services, e.g., if You are using a VoIP application, then You must not be in violation of their wireless data service agreement when using the Services.
10. Third Party Beneficiary: You acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that, upon Your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against You as a third party beneficiary thereof.
x. Governing Law. The laws of the State of New York, excluding its conflicts of law rules, govern this license and Your use of the Services and Materials. Your use of the Services and Materials may also be subject to other local, state, national, or international laws.
y. Capitalize Notice Address. Capitalize may be reached for inquiries or issues regarding the Services via telephone at via email at firstname.lastname@example.org.
aa. Modifications. Capitalize reserves the right to change this Agreement at any time. Updated versions of this Agreement will appear in the Services and are effective immediately. You are responsible for regularly reviewing this Agreement and remain informed about any changes to them. Continued use of the Services after any such changes constitutes Your consent to such changes.
ab. Notice of Ownership. Copyright 2022 Capitalize Money, Inc.