Viridescent Capital Partners SOCIAL MEDIA TERMS
These Social Media Terms (these “terms”) set forth the legally binding terms governing your interaction with Viridescent Capital Partners, LP (“Viridescent”, “we”, “our”, or “us”) on social media platforms found on third-party websites such as Facebook, Twitter, LinkedIn, or any other social platforms on which Viridescent has a branded presence (either now or in the future), including any Viridescent sub-groups therein (collectively, “Social Properties”). By accessing, using, or participating in the Social Properties, you agree to be bound by and comply with these terms. Please read these terms carefully. If you do not agree to these terms, do not access or use the Social Properties in any manner.
YOU ACKNOWLEDGE AND AGREE THAT SECTIONS 7 AND 8 OF THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS ON OUR LIABILITY, AND THAT YOU ARE RELEASING US FROM VARIOUS CLAIMS IN SECTION 7 BELOW. THESE TERMS ALSO CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 9 THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS WITH RESPECT TO THE SOCIAL PROPERTIES.
The Social Properties are provided for informational purposes only and do not constitute an offer to sell, or a solicitation of an offer to buy, any security, future, option, or other financial instrument that may be referenced on the Social Properties. Nothing contained on the Social Properties is intended to be or should be construed as legal, tax, or investment advice. Viridescent does not necessarily endorse the views expressed by the authors of posts or other content on the Social Properties, nor does Viridescent offer all of the types of products or approaches which may be discussed on the Social Properties.
The Social Properties may link to other websites that are operated and controlled solely by Viridescent, such as ViridescentCapital.com(collectively, the “Viridescent Properties”). Your use of the Viridescent Properties is subject to the terms and conditions that are posted on the Viridescent Properties, and not these terms. Finally, if you have entered into an agreement with Viridescent that governs financial accounts that you maintain with Viridescent and/or investment products or services that Viridescent provides to you (each, an “Investor Agreement”), such accounts, products and services will be governed by your Investor Agreement, and not these terms.
We may modify these terms and/or the Social Properties at any time, for any reason, and in our sole discretion. Modified terms are effective as soon as they are posted. We are not responsible for notifying you of modifications to these terms. You should review the “Last Updated” date at the top of these terms regularly to see if any terms have been modified since the last time you visited the Social Properties. We also reserve the right to waive or modify any of these terms as they apply to a specific posting or user of the Social Properties without affecting the application of these terms to all other postings and users. If you participate in or use the Social Properties, or any materials, components, features or services accessible through the Social Properties, after modified terms are posted, you have accepted the modifications. If you do not agree to the modified terms, you should discontinue your use of the Social Properties. If any new components, features or services become available within the Social Properties, your use of them will be governed by these terms unless we notify you that different terms and conditions apply to them or any one of them.
1. Personal Responsibility for Use of the Social Properties
You are solely responsible for all aspects of your participation in the Social Properties, and any and all content you post. This means that you are responsible for all activities and postings under your username, including the use of your username by others. We take no responsibility, and have no liability, for any content you or any other user may post. User-posted or user-generated content does not represent the advice, views, opinions, or beliefs of Viridescent, and we make no claim of accuracy with respect to any user-posted or user-generated material. You may only participate in the Social Properties for lawful purposes. You understand and agree that Viridescent has the right, but not the obligation, to monitor and archive content and postings to the extent permitted or required by law. You understand and agree that Viridescent has the right, but not the obligation, to edit or remove content and postings at its discretion, in whole or in part, either because there has been a violation of these terms, or for any other purpose. You are solely responsible for creating backup copies of any content that you post or store on the Social Properties at your sole cost and expense.
CONTENT GUIDELINES:
Keep it Clean: Obscenities, pornography, illegal, or otherwise harmful or offensive content in posts, images, or other content will not be tolerated.
Treat Others with Respect: Posts that express hatred based on race, gender, gender identity, religious beliefs, ethnic background, or sexual orientation, whether through words or images, will be deleted and may cause you to be banned from the Social Properties.
Protect your Identity: Please do not post personal information publicly on the Social Properties. If you would like us to contact you, please private message us with your full name, phone number, and the best time to call. Do not include confidential or sensitive information such as financial information, social security numbers, or passwords in any private messages to us or in other content you post.
No Soliciting: All posts containing solicitations, third-party advertisements/links, or personal promotion may be removed by us.
No Spamming: We are here to listen and respond to your questions, comments, and concerns, but publishing the same post multiple times may get you banned from our Social Properties.
Keep it Legal: Do not use the Social Properties to promote or participate in illegal activity, including embedding viruses, Trojan horses, worms, corrupted files, malicious code, or any other materials in posts that could harm another user's computer. You agree to use the Social Properties solely for lawful purposes and in compliance with all applicable laws.
Respect Intellectual Property Rights: Only post content that you own. Posting others' materials, including third party trademarks, may be a violation of law.
No Cyber-stalking: Behavior deemed to be stalking or threatening to another user may be reported to the authorities or the third-party provider of the applicable Social Properties.
2. Warnings, Suspensions, Terminations and Interruptions
We may communicate with you personally concerning your participation in the Social Properties or related matters. Those communications are not intended to be made public, and you agree not to post or otherwise disseminate those communications within the Social Properties or elsewhere, on the Internet or otherwise.
We have the right at any time, for any reason or no reason, without notice or liability to you, and without limiting any and all other rights we may have under these terms, at law or in equity, to: (i) refuse to allow you to submit content or postings to the Social Properties, (ii) remove and delete your content or postings from the Social Properties, (iii) suspend or terminate your participation in the Social Properties, and/or (iv) use any technological, legal, operational, or other means available to us to enforce the provisions of these terms, including, without limitation, blocking access to the Social Properties as and to the extent permitted by the social platform on which the violation is occurring.
Without limiting the foregoing, the following may lead to termination of your access to the Social Properties or membership in any sub-groups we may maintain on the Social Properties: 1) breaches or violations of these terms, or other agreements or guidelines incorporated herein; 2) requests by law enforcement or other government agencies; 3) a request by you (e.g., self-initiated membership deletions); 4) unexpected technical issues or problems; and/or 5) extended periods of inactivity.
You agree that Viridescent shall not be liable to you or any third party for any termination or suspension of your membership in or access to the Social Properties, or any damages or losses allegedly arising from termination of your membership or access. We reserve the right to interrupt the functionality and availability of the Social Properties with or without prior notice for any reason or no reason. You agree that we will not be liable for any such interruption, delay, or failure to perform, and you understand that you shall not be entitled to any compensation for interruption of service or failure to perform.
3. Rights to Your Content
You own all of the content and information that belongs to you that you post to the Social Properties. In addition, you represent to us that any content you submit belongs to you, that you have the right to grant all rights and licenses in and to that content granted under these terms, and that the content does not and will not infringe on any third party's intellectual property, privacy, or other proprietary rights.
By submitting content, you represent that all content you submit is accurate, and you agree and warrant to us that the content you submit is not inaccurate, false, or misleading. You further agree and warrant to us that you shall not submit any content that violates any law, statute, ordinance, or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false or deceptive advertising). You agree and warrant to us that the content you submit is not, or cannot reasonably be considered to be, defamatory, libelous, unlawfully threatening, or unlawfully harassing to any individual or entity.
Viridescent is not soliciting ideas. If you send us an idea(s), you will not receive compensation from us, even if we use your idea(s).
For any content that you publicly post via the Social Properties, including, but not limited to, data, text, messages, files, documents, images, videos, audiovisual works, postings, your and/or other persons' names, likenesses, voices, usernames, profiles, and/or any other materials, you grant to Viridescent a perpetual, irrevocable, royalty-free, worldwide, transferable, sublicensable, right and license to use, re-use, reproduce, print, transmit, publish, exhibit, display, distribute, re-distribute, host, cache, archive, store, index, categorize, stream, comment on, edit, alter, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from, and/or sell and/or distribute such content and/or incorporate such content into any form, medium, or technology throughout the world, in whole or in part, on an unrestricted basis for any purpose, without the requirement of any permission from or compensation to you. You agree that you have voluntarily waived all "moral rights" you have in any content you submit.
None of the content that you publicly post via the Social Properties shall be subject to any obligation of confidence on the part of Viridescent, its subsidiaries, affiliates, or partners, or our or their officers, directors, employees, or service providers. All content that you post publicly may be used by Viridescent in our sole discretion. We shall not be liable to you for any use or disclosure of any of your publicly-posted content.
Please note that by posting public comments, posts, tagged photos, videos, ideas, or any other public content on or through any of the Social Properties, you are granting Viridescent nonexclusive, worldwide rights to republish, redistribute, or otherwise use this content and your social media handle or username in perpetuity in any way we see fit. This includes, but is not limited to, use in marketing and advertising materials.
Viridescent will use reasonable efforts to keep private any information or content you submit to us through an explicitly private messaging function provided on the Social Properties (“Private Content”). However, as described further in Section 5 below, when you visit Viridescent on any Social Properties, your activity on the Social Properties is subject to the privacy and data security practices of the third-party providers of the relevant Social Properties, which are not controlled by Viridescent or governed by Viridescent's privacy policy. The provider of the relevant Social Properties may have privacy practices that are different from our own, including with respect to a third-party provider's use and disclosure of your Private Content. Viridescent may use Private Content for its internal business purposes, such as responding to your message or improving our products and services. However, we will not make Private Content publicly available, except as we deem necessary to enforce or apply the terms and conditions of these terms; to meet legal, regulatory, insurance, audit, or security requirements; to protect the rights, property, or safety of us, or other users, or third parties; to prevent a crime or protect national security; or to detect, prevent, or otherwise address fraud, security, or technical issues. In addition, we reserve the right to publicly disclose and share Private Content in the event that you make public the subject matter of such Private Content, such as by publicly posting it to the Social Properties, other third-party websites, or otherwise. Notwithstanding the foregoing, you acknowledge that Viridescent cannot control the acts or omissions of any third party social media platform provider, and you agree that Viridescent will have no responsibility or liability for a platform provider's failure to keep your Private Content private.
You understand, acknowledge, and agree that we are not responsible for any deletion of your content or any failure to store, receive, or deliver your content in a timely manner or any other matter relating to your content.
INTELLECTUAL PROPERTY PROTECTION
As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others, and require our users to do so. If you are a copyright owner or its agent and believe that any content residing on or accessible through the Social Properties infringes upon your copyrights, you may submit a notification under the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent (the “Designated Agent”) with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
- Identification of the work or material being infringed.
- Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence.
- Contact information for the notifying party (the "Notifying Party"), including name, address, telephone number, and email address.
- A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
- A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.
Please also note that the information provided in a notice of copyright infringement may be forwarded to the user who posted the allegedly infringing content and/or to the third-party provider of the relevant Social Property. After removing material in response to a valid DMCA notice, we will notify the user responsible for the allegedly infringing material that we have removed or disabled access to the material. We will terminate, under appropriate circumstances and to the extent possible using the functionality provided by the Social Properties, users who are repeat copyright infringers, and we reserve the right, in our sole discretion, to terminate any user for actual or apparent copyright infringement.
If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with us by providing the following information to the Designated Agent at the address below:
- The specific URLs of material that we have removed or to which we have disabled access.
- Your name, address, telephone number, and email address.
- A statement that you consent to the jurisdiction of U.S. District Court for the Southern District of Texas, and that you will accept service of process from the person who provided the original DMCA notification or an agent of such person.
- The following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
- Your signature.
Upon receipt of a valid counter-notification, we will forward it to the Notifying Party who submitted the original DMCA notification, and we may also forward it to the third-party provider of the relevant Social Property. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed a legal action relating to the allegedly infringing material. If we do not receive any such notification within ten (10) days, we may restore the material to the Social Properties.
The contact information for our Designated Agent is:
Viridescent Capital Partners, LP
Attention: Copyright Agent
10242 Greenhouse Road, Building 1302
Cypress, Texas 77433
Email: info@viridescentcapital.com
If you believe that any of your intellectual property rights other than copyrights have been infringed on the Social Properties, please e-mail us at info@viridescentcapital.com
We reserve the right, in our sole and absolute discretion, to suspend or terminate any user who infringes the intellectual property rights of Viridescent or others, and/or to remove, delete, edit or disable access to such person's content. You agree that we have no liability for any action taken under this section.
4. Third Party Links
Within the Social Properties, there may be links or reference links to non-Viridescent websites ("third party websites"). If you access the Social Properties or follow links to third-party websites, you may be exposed to content that you consider offensive or inappropriate. We are not responsible for monitoring these sites, and we are not responsible for the content, terms of use, or privacy, security or other practices of any third-party website, nor are we responsible for any link contained in a third-party website. The inclusion of a third-party link within the Social Properties does not imply any recommendation or endorsement by Viridescent or any affiliation with Viridescent. You access any third-party website at your own risk, and we expressly disclaim any liability arising out of your access or use of any third-party website or link. In connection with your participation in the Social Properties, you may be made aware of services, products, articles, offers, and promotions provided by third parties. If you decide to use these third-party services, you are responsible for reviewing and understanding the terms and conditions governing those services. You agree that the third party, and not Viridescent, is responsible for performance of the services.
5. Privacy and Security
The Social Properties are publicly accessible. Any content that you place on the Social Properties is posted at your own risk, and can be viewed, obtained, and used by others. Do not reveal any information that you do not want to make public, such as posts including your contact information or other confidential or sensitive information. Viridescent disclaims any responsibility or liability arising from your disclosure of such personal information on the Social Properties, or any other information, in any profile or posting. You acknowledge and agree that in our sole discretion, we may track, record, observe, and follow any of your activities on the Social Properties to the extent permitted or required by law.
The social media sites on which the Social Properties are hosted are third-party websites that are not affiliated with Viridescent. Viridescent is not responsible for the privacy, security, or other policies or practices of such third-party sites, which are not controlled by Viridescent or governed by Viridescent's privacy policy or these terms. The provider of the relevant Social Properties may have privacy and other practices that are different from our own. You should review the privacy, security, and other policies and practices of such third-party sites prior to accessing or using the Social Properties.
6. Indemnification
You hereby agree to indemnify, defend, and hold harmless Viridescent, its affiliates, and its and their predecessors, successors, and assigns, and each of their respective officers, directors, owners, employees, agents, representatives, partners, and contractors (collectively, the "Indemnified Parties") from and against any and all claims, damages, penalties, losses, liabilities, costs, and expenses (including, without limitation, settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim arising out of: (i) your breach of these terms, (ii) your conduct or content on or within the Social Properties, or (iii) your violation of the rights of any third party. However, you will not be responsible for claims, damages, and costs which are found by a court of competent jurisdiction to have arisen solely from our willful misconduct or violation of applicable law. You shall use your best efforts to cooperate with us in the defense of any claim subject to indemnification by you. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
7. Disclaimer of Warranties; Release
OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, NEITHER VIRIDESCENT NOR ITS LICENSORS, SUPPLIERS, ADVERTISERS, OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE SOCIAL PROPERTIES. FOR EXAMPLE, WE DON'T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SOCIAL PROPERTIES, THE SPECIFIC FUNCTIONS OF THE SOCIAL PROPERTIES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE ALSO DO NOT MAKE ANY WARRANTIES OR COMMITMENT RELATING TO NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR ERROR-FREE OR UNINTERRUPTED OPERATIONS. WE PROVIDE THE SOCIAL PROPERTIES “AS-IS.”
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED.
YOU AND YOUR HEIRS, SUCCESSORS, AND ASSIGNS HEREBY FOREVER IRREVOCABLY RELEASE, DISCHARGE, AND HOLD HARMLESS US, OUR AFFILIATES, AND OUR AND THEIR SUCCESSORS AND ASSIGNS, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) FROM, AND AGREE NOT TO SUE ANY RELEASED PARTY FOR, ANY LIABILITIES, CLAIMS, OBLIGATIONS, SUITS, ACTIONS, DEMANDS, EXPENSES, AND DAMAGES WHATSOEVER (COLLECTIVELY, “LIABILITIES”) THAT YOU MAY HAVE AGAINST ANY RELEASED PARTY WHETHER EXISTING NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH YOUR OR A THIRD PARTY'S CONDUCT RELATED TO USE OF THE SOCIAL PROPERTIES. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE FOREGOING SENTENCE RELEASES AND DISCHARGES ALL LIABILITIES, WHETHER OR NOT THEY ARE CURRENTLY KNOWN TO YOU, AND YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542. YOU UNDERSTAND THE MEANING OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN TO HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” BY AGREEING TO THESE TERMS AND THIS WAIVER, YOU ASSUME ALL RISK ARISING FROM YET UNKNOWN CLAIMS.
8. Liability for the Social Properties
TO THE EXTENT NOT PROHIBITED BY LAW, VIRIDESCENT (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND OUR LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES RELATING TO OR ARISING OUT OF THESE TERMS OR THE SOCIAL PROPERTIES.
TO THE EXTENT NOT PROHIBITED BY LAW, THE TOTAL LIABILITY OF VIRIDESCENT (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND OUR LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, FOR ANY AND ALL CLAIMS UNDER THESE TERMS OR RELATING TO OR ARISING OUT OF YOUR USE OF THE SOCIAL PROPERTIES, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE SPECIFIC AMOUNT YOU PAID VIRIDESCENT TO USE THE SOCIAL PROPERTIES, EVEN IF VIRIDESCENT HAD REASON TO KNOW OF ANY DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
IN ALL CASES RELATING TO PROVIDING YOU THE SOCIAL PROPERTIES, VIRIDESCENT (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY SOCIAL MEDIA PLATFORM PROVIDER OR ANY LOSS OR DAMAGE THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, CRIMINAL ACTIVITIES, STORMS, NATURAL DISASTERS, ACTS OF GOVERNMENT, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES.
9. Binding Arbitration
Without limiting your waiver and release in Section 7, you agree to the following:
a. Purpose. Any and all Disputes (as defined below) involving you and Viridescent will be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. This Section 9 (the “Arbitration Provision”) shall be broadly interpreted. Notwithstanding anything to the contrary in these terms, this Section 9 does not apply to an action by either party to enjoin the infringement or misuse of its intellectual property rights, including copyright, trademark, patent or trade secret rights.
b. Definitions. The term “Dispute” means any claim or controversy related to the Social Properties, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before your agreement to these terms or any prior agreement; (3) claims that arise after the expiration or termination of these terms; and (4) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class. As used in this Arbitration Provision, “Viridescent” means Viridescent and any of its predecessors, successors, assigns, parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents, and “you” means you and any users or beneficiaries of your access to the Social Properties.
c. Initiation of Arbitration Proceeding/Selection of Arbitrator. The party initiating the arbitration proceeding may open a case with JAMS, formerly Judicial Arbitration and Mediation Services, Inc., (“JAMS”) by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). You may deliver any required or desired notice to Viridescent by mail to 10242 Greenhouse Road, Building 1302, Cypress, Texas 77433, Attention: Legal Department.
d. Right to Sue in Small Claims Court. Notwithstanding anything in this Arbitration Provision to the contrary, either you or Viridescent may bring an individual action in a small claims court in the area where you access the Social Properties if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
e. Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify Viridescent about your Dispute. You can obtain the JAMS Rules from the JAMS by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). If there is a conflict between this Arbitration Provision and the rest of these terms, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the JAMS rules, this Arbitration Provision shall govern. If JAMS will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the JAMS Rules. A single arbitrator will resolve the Dispute. Unless you and Viridescent agree otherwise, any arbitration hearing will take place in Houston, TX. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator's essential findings and conclusions. The arbitrator's award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator's award. An arbitrator's award that has been fully satisfied shall not be entered in any court.
f. Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER USERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY'S CLAIM. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
g. Arbitration Fees and Costs. If your claim seeks more than $75,000 in the aggregate, the payment of JAMS fees and costs will be governed by the JAMS Rules. If your claims seek less than $75,000 in the aggregate, the payment of JAMS fees and costs will be Viridescent's responsibility. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys' fees and additional costs and may only recover your attorneys' fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Arbitration Provision to the contrary, Viridescent will pay all fees and costs that it is required by law to pay.
h. Severability and Waiver of Jury Trial. If any part of subsection (f) of this Arbitration Provision is found to be illegal or unenforceable, the entire Arbitration provision will be unenforceable and the Dispute will be decided by a court. WHETHER IN COURT OR IN ARBITRATION, YOU AND VIRIDESCENT AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT ALLOWED BY LAW. If any other clause in this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision and the remainder of this Arbitration Provision will be given full force and effect.
i. Continuation. This Arbitration Provision will survive the termination or expiration of these terms.
10. Regulatory Disclaimer; Suitability
Securities, alternative investments, and other investment products are not bank deposits and are not insured by the FDIC or any other agency of the United States, nor are they obligations of, or insured or guaranteed by, any entity affiliated with the Social Properties, its subsidiaries, or affiliates. Securities and other investments involve investment risks, including the possible loss of value. The information and materials contained in the Social Properties, and the terms of the access to and use of such information and materials, are subject to change without notice. Eligibility for particular investment options or services is subject to final determination and acceptance by Viridescent.
Any investments, securities, strategies, or financial instruments mentioned in the Social Properties may not be suitable or appropriate for all investors or available in all geographical areas. Your particular needs, investment objectives, and financial situation were not taken into account in the preparation of the Social Properties or the posts or content that appears on them. Such posts and content do not constitute financial or investment advice. In addition, Viridescent does not provide financial or investment advice through any private messaging features on the Social Properties, and you should not seek financial or investment advice from Viridescent through such features. You must make your own independent decisions regarding any investments, securities or financial instruments mentioned herein. The fact that Viridescent has made available to you investment opinions and other information on the Social Properties is not a representation that any idea mentioned here is suitable or appropriate for you. You must consider whether an investment strategy or the purchase or sale of any product is appropriate for you in the light of your particular investment needs, objectives, and financial circumstances.
Opportunity
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Viridescent Capital Partners SOCIAL MEDIA TERMS
These Social Media Terms (these “terms”) set forth the legally binding terms governing your interaction with Viridescent Capital Partners, LP (“Viridescent”, “we”, “our”, or “us”) on social media platforms found on third-party websites such as Facebook, Twitter, LinkedIn, or any other social platforms on which Viridescent has a branded presence (either now or in the future), including any Viridescent sub-groups therein (collectively, “Social Properties”). By accessing, using, or participating in the Social Properties, you agree to be bound by and comply with these terms. Please read these terms carefully. If you do not agree to these terms, do not access or use the Social Properties in any manner.
YOU ACKNOWLEDGE AND AGREE THAT SECTIONS 7 AND 8 OF THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS ON OUR LIABILITY, AND THAT YOU ARE RELEASING US FROM VARIOUS CLAIMS IN SECTION 7 BELOW. THESE TERMS ALSO CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 9 THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS WITH RESPECT TO THE SOCIAL PROPERTIES.
The Social Properties are provided for informational purposes only and do not constitute an offer to sell, or a solicitation of an offer to buy, any security, future, option, or other financial instrument that may be referenced on the Social Properties. Nothing contained on the Social Properties is intended to be or should be construed as legal, tax, or investment advice. Viridescent does not necessarily endorse the views expressed by the authors of posts or other content on the Social Properties, nor does Viridescent offer all of the types of products or approaches which may be discussed on the Social Properties.
The Social Properties may link to other websites that are operated and controlled solely by Viridescent, such as ViridescentCapital.com(collectively, the “Viridescent Properties”). Your use of the Viridescent Properties is subject to the terms and conditions that are posted on the Viridescent Properties, and not these terms. Finally, if you have entered into an agreement with Viridescent that governs financial accounts that you maintain with Viridescent and/or investment products or services that Viridescent provides to you (each, an “Investor Agreement”), such accounts, products and services will be governed by your Investor Agreement, and not these terms.
We may modify these terms and/or the Social Properties at any time, for any reason, and in our sole discretion. Modified terms are effective as soon as they are posted. We are not responsible for notifying you of modifications to these terms. You should review the “Last Updated” date at the top of these terms regularly to see if any terms have been modified since the last time you visited the Social Properties. We also reserve the right to waive or modify any of these terms as they apply to a specific posting or user of the Social Properties without affecting the application of these terms to all other postings and users. If you participate in or use the Social Properties, or any materials, components, features or services accessible through the Social Properties, after modified terms are posted, you have accepted the modifications. If you do not agree to the modified terms, you should discontinue your use of the Social Properties. If any new components, features or services become available within the Social Properties, your use of them will be governed by these terms unless we notify you that different terms and conditions apply to them or any one of them.
1. Personal Responsibility for Use of the Social Properties
You are solely responsible for all aspects of your participation in the Social Properties, and any and all content you post. This means that you are responsible for all activities and postings under your username, including the use of your username by others. We take no responsibility, and have no liability, for any content you or any other user may post. User-posted or user-generated content does not represent the advice, views, opinions, or beliefs of Viridescent, and we make no claim of accuracy with respect to any user-posted or user-generated material. You may only participate in the Social Properties for lawful purposes. You understand and agree that Viridescent has the right, but not the obligation, to monitor and archive content and postings to the extent permitted or required by law. You understand and agree that Viridescent has the right, but not the obligation, to edit or remove content and postings at its discretion, in whole or in part, either because there has been a violation of these terms, or for any other purpose. You are solely responsible for creating backup copies of any content that you post or store on the Social Properties at your sole cost and expense.
CONTENT GUIDELINES:
Keep it Clean: Obscenities, pornography, illegal, or otherwise harmful or offensive content in posts, images, or other content will not be tolerated.
Treat Others with Respect: Posts that express hatred based on race, gender, gender identity, religious beliefs, ethnic background, or sexual orientation, whether through words or images, will be deleted and may cause you to be banned from the Social Properties.
Protect your Identity: Please do not post personal information publicly on the Social Properties. If you would like us to contact you, please private message us with your full name, phone number, and the best time to call. Do not include confidential or sensitive information such as financial information, social security numbers, or passwords in any private messages to us or in other content you post.
No Soliciting: All posts containing solicitations, third-party advertisements/links, or personal promotion may be removed by us.
No Spamming: We are here to listen and respond to your questions, comments, and concerns, but publishing the same post multiple times may get you banned from our Social Properties.
Keep it Legal: Do not use the Social Properties to promote or participate in illegal activity, including embedding viruses, Trojan horses, worms, corrupted files, malicious code, or any other materials in posts that could harm another user's computer. You agree to use the Social Properties solely for lawful purposes and in compliance with all applicable laws.
Respect Intellectual Property Rights: Only post content that you own. Posting others' materials, including third party trademarks, may be a violation of law.
No Cyber-stalking: Behavior deemed to be stalking or threatening to another user may be reported to the authorities or the third-party provider of the applicable Social Properties.
2. Warnings, Suspensions, Terminations and Interruptions
We may communicate with you personally concerning your participation in the Social Properties or related matters. Those communications are not intended to be made public, and you agree not to post or otherwise disseminate those communications within the Social Properties or elsewhere, on the Internet or otherwise.
We have the right at any time, for any reason or no reason, without notice or liability to you, and without limiting any and all other rights we may have under these terms, at law or in equity, to: (i) refuse to allow you to submit content or postings to the Social Properties, (ii) remove and delete your content or postings from the Social Properties, (iii) suspend or terminate your participation in the Social Properties, and/or (iv) use any technological, legal, operational, or other means available to us to enforce the provisions of these terms, including, without limitation, blocking access to the Social Properties as and to the extent permitted by the social platform on which the violation is occurring.
Without limiting the foregoing, the following may lead to termination of your access to the Social Properties or membership in any sub-groups we may maintain on the Social Properties: 1) breaches or violations of these terms, or other agreements or guidelines incorporated herein; 2) requests by law enforcement or other government agencies; 3) a request by you (e.g., self-initiated membership deletions); 4) unexpected technical issues or problems; and/or 5) extended periods of inactivity.
You agree that Viridescent shall not be liable to you or any third party for any termination or suspension of your membership in or access to the Social Properties, or any damages or losses allegedly arising from termination of your membership or access. We reserve the right to interrupt the functionality and availability of the Social Properties with or without prior notice for any reason or no reason. You agree that we will not be liable for any such interruption, delay, or failure to perform, and you understand that you shall not be entitled to any compensation for interruption of service or failure to perform.
3. Rights to Your Content
You own all of the content and information that belongs to you that you post to the Social Properties. In addition, you represent to us that any content you submit belongs to you, that you have the right to grant all rights and licenses in and to that content granted under these terms, and that the content does not and will not infringe on any third party's intellectual property, privacy, or other proprietary rights.
By submitting content, you represent that all content you submit is accurate, and you agree and warrant to us that the content you submit is not inaccurate, false, or misleading. You further agree and warrant to us that you shall not submit any content that violates any law, statute, ordinance, or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false or deceptive advertising). You agree and warrant to us that the content you submit is not, or cannot reasonably be considered to be, defamatory, libelous, unlawfully threatening, or unlawfully harassing to any individual or entity.
Viridescent is not soliciting ideas. If you send us an idea(s), you will not receive compensation from us, even if we use your idea(s).
For any content that you publicly post via the Social Properties, including, but not limited to, data, text, messages, files, documents, images, videos, audiovisual works, postings, your and/or other persons' names, likenesses, voices, usernames, profiles, and/or any other materials, you grant to Viridescent a perpetual, irrevocable, royalty-free, worldwide, transferable, sublicensable, right and license to use, re-use, reproduce, print, transmit, publish, exhibit, display, distribute, re-distribute, host, cache, archive, store, index, categorize, stream, comment on, edit, alter, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from, and/or sell and/or distribute such content and/or incorporate such content into any form, medium, or technology throughout the world, in whole or in part, on an unrestricted basis for any purpose, without the requirement of any permission from or compensation to you. You agree that you have voluntarily waived all "moral rights" you have in any content you submit.
None of the content that you publicly post via the Social Properties shall be subject to any obligation of confidence on the part of Viridescent, its subsidiaries, affiliates, or partners, or our or their officers, directors, employees, or service providers. All content that you post publicly may be used by Viridescent in our sole discretion. We shall not be liable to you for any use or disclosure of any of your publicly-posted content.
Please note that by posting public comments, posts, tagged photos, videos, ideas, or any other public content on or through any of the Social Properties, you are granting Viridescent nonexclusive, worldwide rights to republish, redistribute, or otherwise use this content and your social media handle or username in perpetuity in any way we see fit. This includes, but is not limited to, use in marketing and advertising materials.
Viridescent will use reasonable efforts to keep private any information or content you submit to us through an explicitly private messaging function provided on the Social Properties (“Private Content”). However, as described further in Section 5 below, when you visit Viridescent on any Social Properties, your activity on the Social Properties is subject to the privacy and data security practices of the third-party providers of the relevant Social Properties, which are not controlled by Viridescent or governed by Viridescent's privacy policy. The provider of the relevant Social Properties may have privacy practices that are different from our own, including with respect to a third-party provider's use and disclosure of your Private Content. Viridescent may use Private Content for its internal business purposes, such as responding to your message or improving our products and services. However, we will not make Private Content publicly available, except as we deem necessary to enforce or apply the terms and conditions of these terms; to meet legal, regulatory, insurance, audit, or security requirements; to protect the rights, property, or safety of us, or other users, or third parties; to prevent a crime or protect national security; or to detect, prevent, or otherwise address fraud, security, or technical issues. In addition, we reserve the right to publicly disclose and share Private Content in the event that you make public the subject matter of such Private Content, such as by publicly posting it to the Social Properties, other third-party websites, or otherwise. Notwithstanding the foregoing, you acknowledge that Viridescent cannot control the acts or omissions of any third party social media platform provider, and you agree that Viridescent will have no responsibility or liability for a platform provider's failure to keep your Private Content private.
You understand, acknowledge, and agree that we are not responsible for any deletion of your content or any failure to store, receive, or deliver your content in a timely manner or any other matter relating to your content.
INTELLECTUAL PROPERTY PROTECTION
As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others, and require our users to do so. If you are a copyright owner or its agent and believe that any content residing on or accessible through the Social Properties infringes upon your copyrights, you may submit a notification under the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent (the “Designated Agent”) with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
Please also note that the information provided in a notice of copyright infringement may be forwarded to the user who posted the allegedly infringing content and/or to the third-party provider of the relevant Social Property. After removing material in response to a valid DMCA notice, we will notify the user responsible for the allegedly infringing material that we have removed or disabled access to the material. We will terminate, under appropriate circumstances and to the extent possible using the functionality provided by the Social Properties, users who are repeat copyright infringers, and we reserve the right, in our sole discretion, to terminate any user for actual or apparent copyright infringement.
If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with us by providing the following information to the Designated Agent at the address below:
Upon receipt of a valid counter-notification, we will forward it to the Notifying Party who submitted the original DMCA notification, and we may also forward it to the third-party provider of the relevant Social Property. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed a legal action relating to the allegedly infringing material. If we do not receive any such notification within ten (10) days, we may restore the material to the Social Properties.
The contact information for our Designated Agent is:
Viridescent Capital Partners, LP
Attention: Copyright Agent
10242 Greenhouse Road, Building 1302
Cypress, Texas 77433
Email: info@viridescentcapital.com
If you believe that any of your intellectual property rights other than copyrights have been infringed on the Social Properties, please e-mail us at info@viridescentcapital.com
We reserve the right, in our sole and absolute discretion, to suspend or terminate any user who infringes the intellectual property rights of Viridescent or others, and/or to remove, delete, edit or disable access to such person's content. You agree that we have no liability for any action taken under this section.
4. Third Party Links
Within the Social Properties, there may be links or reference links to non-Viridescent websites ("third party websites"). If you access the Social Properties or follow links to third-party websites, you may be exposed to content that you consider offensive or inappropriate. We are not responsible for monitoring these sites, and we are not responsible for the content, terms of use, or privacy, security or other practices of any third-party website, nor are we responsible for any link contained in a third-party website. The inclusion of a third-party link within the Social Properties does not imply any recommendation or endorsement by Viridescent or any affiliation with Viridescent. You access any third-party website at your own risk, and we expressly disclaim any liability arising out of your access or use of any third-party website or link. In connection with your participation in the Social Properties, you may be made aware of services, products, articles, offers, and promotions provided by third parties. If you decide to use these third-party services, you are responsible for reviewing and understanding the terms and conditions governing those services. You agree that the third party, and not Viridescent, is responsible for performance of the services.
5. Privacy and Security
The Social Properties are publicly accessible. Any content that you place on the Social Properties is posted at your own risk, and can be viewed, obtained, and used by others. Do not reveal any information that you do not want to make public, such as posts including your contact information or other confidential or sensitive information. Viridescent disclaims any responsibility or liability arising from your disclosure of such personal information on the Social Properties, or any other information, in any profile or posting. You acknowledge and agree that in our sole discretion, we may track, record, observe, and follow any of your activities on the Social Properties to the extent permitted or required by law.
The social media sites on which the Social Properties are hosted are third-party websites that are not affiliated with Viridescent. Viridescent is not responsible for the privacy, security, or other policies or practices of such third-party sites, which are not controlled by Viridescent or governed by Viridescent's privacy policy or these terms. The provider of the relevant Social Properties may have privacy and other practices that are different from our own. You should review the privacy, security, and other policies and practices of such third-party sites prior to accessing or using the Social Properties.
6. Indemnification
You hereby agree to indemnify, defend, and hold harmless Viridescent, its affiliates, and its and their predecessors, successors, and assigns, and each of their respective officers, directors, owners, employees, agents, representatives, partners, and contractors (collectively, the "Indemnified Parties") from and against any and all claims, damages, penalties, losses, liabilities, costs, and expenses (including, without limitation, settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim arising out of: (i) your breach of these terms, (ii) your conduct or content on or within the Social Properties, or (iii) your violation of the rights of any third party. However, you will not be responsible for claims, damages, and costs which are found by a court of competent jurisdiction to have arisen solely from our willful misconduct or violation of applicable law. You shall use your best efforts to cooperate with us in the defense of any claim subject to indemnification by you. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
7. Disclaimer of Warranties; Release
OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, NEITHER VIRIDESCENT NOR ITS LICENSORS, SUPPLIERS, ADVERTISERS, OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE SOCIAL PROPERTIES. FOR EXAMPLE, WE DON'T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SOCIAL PROPERTIES, THE SPECIFIC FUNCTIONS OF THE SOCIAL PROPERTIES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE ALSO DO NOT MAKE ANY WARRANTIES OR COMMITMENT RELATING TO NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR ERROR-FREE OR UNINTERRUPTED OPERATIONS. WE PROVIDE THE SOCIAL PROPERTIES “AS-IS.”
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED.
YOU AND YOUR HEIRS, SUCCESSORS, AND ASSIGNS HEREBY FOREVER IRREVOCABLY RELEASE, DISCHARGE, AND HOLD HARMLESS US, OUR AFFILIATES, AND OUR AND THEIR SUCCESSORS AND ASSIGNS, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) FROM, AND AGREE NOT TO SUE ANY RELEASED PARTY FOR, ANY LIABILITIES, CLAIMS, OBLIGATIONS, SUITS, ACTIONS, DEMANDS, EXPENSES, AND DAMAGES WHATSOEVER (COLLECTIVELY, “LIABILITIES”) THAT YOU MAY HAVE AGAINST ANY RELEASED PARTY WHETHER EXISTING NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH YOUR OR A THIRD PARTY'S CONDUCT RELATED TO USE OF THE SOCIAL PROPERTIES. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE FOREGOING SENTENCE RELEASES AND DISCHARGES ALL LIABILITIES, WHETHER OR NOT THEY ARE CURRENTLY KNOWN TO YOU, AND YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542. YOU UNDERSTAND THE MEANING OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN TO HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” BY AGREEING TO THESE TERMS AND THIS WAIVER, YOU ASSUME ALL RISK ARISING FROM YET UNKNOWN CLAIMS.
8. Liability for the Social Properties
TO THE EXTENT NOT PROHIBITED BY LAW, VIRIDESCENT (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND OUR LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES RELATING TO OR ARISING OUT OF THESE TERMS OR THE SOCIAL PROPERTIES.
TO THE EXTENT NOT PROHIBITED BY LAW, THE TOTAL LIABILITY OF VIRIDESCENT (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND OUR LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, FOR ANY AND ALL CLAIMS UNDER THESE TERMS OR RELATING TO OR ARISING OUT OF YOUR USE OF THE SOCIAL PROPERTIES, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE SPECIFIC AMOUNT YOU PAID VIRIDESCENT TO USE THE SOCIAL PROPERTIES, EVEN IF VIRIDESCENT HAD REASON TO KNOW OF ANY DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
IN ALL CASES RELATING TO PROVIDING YOU THE SOCIAL PROPERTIES, VIRIDESCENT (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY SOCIAL MEDIA PLATFORM PROVIDER OR ANY LOSS OR DAMAGE THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, CRIMINAL ACTIVITIES, STORMS, NATURAL DISASTERS, ACTS OF GOVERNMENT, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES.
9. Binding Arbitration
Without limiting your waiver and release in Section 7, you agree to the following:
a. Purpose. Any and all Disputes (as defined below) involving you and Viridescent will be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. This Section 9 (the “Arbitration Provision”) shall be broadly interpreted. Notwithstanding anything to the contrary in these terms, this Section 9 does not apply to an action by either party to enjoin the infringement or misuse of its intellectual property rights, including copyright, trademark, patent or trade secret rights.
b. Definitions. The term “Dispute” means any claim or controversy related to the Social Properties, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before your agreement to these terms or any prior agreement; (3) claims that arise after the expiration or termination of these terms; and (4) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class. As used in this Arbitration Provision, “Viridescent” means Viridescent and any of its predecessors, successors, assigns, parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents, and “you” means you and any users or beneficiaries of your access to the Social Properties.
c. Initiation of Arbitration Proceeding/Selection of Arbitrator. The party initiating the arbitration proceeding may open a case with JAMS, formerly Judicial Arbitration and Mediation Services, Inc., (“JAMS”) by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). You may deliver any required or desired notice to Viridescent by mail to 10242 Greenhouse Road, Building 1302, Cypress, Texas 77433, Attention: Legal Department.
d. Right to Sue in Small Claims Court. Notwithstanding anything in this Arbitration Provision to the contrary, either you or Viridescent may bring an individual action in a small claims court in the area where you access the Social Properties if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
e. Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify Viridescent about your Dispute. You can obtain the JAMS Rules from the JAMS by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). If there is a conflict between this Arbitration Provision and the rest of these terms, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the JAMS rules, this Arbitration Provision shall govern. If JAMS will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the JAMS Rules. A single arbitrator will resolve the Dispute. Unless you and Viridescent agree otherwise, any arbitration hearing will take place in Houston, TX. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator's essential findings and conclusions. The arbitrator's award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator's award. An arbitrator's award that has been fully satisfied shall not be entered in any court.
f. Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER USERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY'S CLAIM. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
g. Arbitration Fees and Costs. If your claim seeks more than $75,000 in the aggregate, the payment of JAMS fees and costs will be governed by the JAMS Rules. If your claims seek less than $75,000 in the aggregate, the payment of JAMS fees and costs will be Viridescent's responsibility. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys' fees and additional costs and may only recover your attorneys' fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Arbitration Provision to the contrary, Viridescent will pay all fees and costs that it is required by law to pay.
h. Severability and Waiver of Jury Trial. If any part of subsection (f) of this Arbitration Provision is found to be illegal or unenforceable, the entire Arbitration provision will be unenforceable and the Dispute will be decided by a court. WHETHER IN COURT OR IN ARBITRATION, YOU AND VIRIDESCENT AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT ALLOWED BY LAW. If any other clause in this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision and the remainder of this Arbitration Provision will be given full force and effect.
i. Continuation. This Arbitration Provision will survive the termination or expiration of these terms.
10. Regulatory Disclaimer; Suitability
Securities, alternative investments, and other investment products are not bank deposits and are not insured by the FDIC or any other agency of the United States, nor are they obligations of, or insured or guaranteed by, any entity affiliated with the Social Properties, its subsidiaries, or affiliates. Securities and other investments involve investment risks, including the possible loss of value. The information and materials contained in the Social Properties, and the terms of the access to and use of such information and materials, are subject to change without notice. Eligibility for particular investment options or services is subject to final determination and acceptance by Viridescent.
Any investments, securities, strategies, or financial instruments mentioned in the Social Properties may not be suitable or appropriate for all investors or available in all geographical areas. Your particular needs, investment objectives, and financial situation were not taken into account in the preparation of the Social Properties or the posts or content that appears on them. Such posts and content do not constitute financial or investment advice. In addition, Viridescent does not provide financial or investment advice through any private messaging features on the Social Properties, and you should not seek financial or investment advice from Viridescent through such features. You must make your own independent decisions regarding any investments, securities or financial instruments mentioned herein. The fact that Viridescent has made available to you investment opinions and other information on the Social Properties is not a representation that any idea mentioned here is suitable or appropriate for you. You must consider whether an investment strategy or the purchase or sale of any product is appropriate for you in the light of your particular investment needs, objectives, and financial circumstances.