Terms of Service
THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
These Terms of Service (“Terms”) govern use of the Advocate Platform and the Services (as each such term is defined below) by the Customer (defined below) and by its Permitted Users (collectively with the Customer, “you”). The “Parties” refer to Advocate Technologies, Inc. (“Advocate”, “we or us”) and you, and “Party” refers to each of Advocate and you.
By clicking an “I agree” or “I accept” button, or using the Advocate Platform, you agree to be bound to these Terms together with all applicable exhibits, order forms, attachments, and addenda which are incorporated herein by reference and form part of these Terms. If you order the Services through an on-line registration page or an order form (each an “Order Form”), each such Order Form may contain additional terms and conditions. In the event of a conflict, an exhibit, attachment, Order Form, or addendum prevails over these Terms.
We may revise these Terms or any additional terms and conditions that are relevant to the Services from time to time. We will post the revised terms on our website with a “last updated” date. IF YOU CONTINUE TO USE THE SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.
YOU REPRESENT AND WARRANT TO ADVOCATE THAT YOU HAVE THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING TERMS. IF YOU ARE USING THE SERVICES ON BEHALF OF ANOTHER INDIVIDUAL OR ENTITY, YOU HEREBY REPRESENT AND WARRANT TO ADVOCATE THAT YOU HAVE THE AUTHORITY TO BIND SUCH INDIVIDUAL OR ENTITY TO THESE TERMS.
These Terms are entered into the earlier of (the “Effective Date”): (a) the date you first use any part of the Services; and (b) the date you agree to be bound by this Terms.
This Terms of Service has the following sections:
Insurance Review Services
Ownership and Licenses
Privacy / Data
Access to the Advocate Platform; Customer User Account; Responsibility for Permitted Users
Third-Party Content, Websites or Services
Fees and Payment
Term and Termination
Your Warranties; Disclaimer
Limitation of Liability
Binding Arbitration and Class Action Waiver
Choice of Law and Jurisdiction
As used in these Terms, the following capitalized words have the meaning set out below:
- “Approved Review Project” means an insurance review project initiated and authorized by Customer, and accepted by Advocate, as part of the Insurance Review Services.
- “Approved Review Project” means an insurance review project initiated and authorized by Customer, and accepted by Advocate, as part of the Insurance Review Services.
- “Borrowers” means Customer’s clients for which it is providing loan originations.
- “Customer Data” means all information that is (i) collected through your use of the Advocate Platform in connection with the Loan and/or (ii) otherwise provided by Borrower to Advocate in connection with the Loan.
- “Insurance Requirements” shall mean the requirements provided by Customer to Advocate detailing the level of insurance necessary for a given Approved Review Project.
- “Insurance Review Services” means the insurance review services provided to Customer in connection with Customer’s loan originations and portfolio management as more fully described in the applicable Order Form(s).
- “Intellectual Property Rights” means, but is not limited to, rights in and to patents, patent disclosures, patent applications (including utility models, continuations, continuations-in-part, divisions, re-issues, re-examined patents and patent applications, and extensions thereof), patentable inventions, rights in design, copyrights (including any such rights in typographical arrangements, websites or software), whether registered or not and any applications to register or rights to apply for registration of any of the foregoing, trademarks, trading, business or domain names and e-mail addresses, mask-works, trade secrets, rights in inventions, know-how, moral rights, and other confidential information, rights in databases and all other intellectual property rights of a similar or corresponding character that subsist now or in the future in any part of the world, whether arising by operation of law, contract, license or otherwise.
- “Permitted User” means an employee, consultant or advisor of Customer who Customer authorizes to access and use the Advocate Platform.
- “Personal Data” has the meaning given such term in the DPA.
- “Services” means the provision of the Advocate Platform and the Insurance Review Services provided to Customer in connection with Customer’s loan originations and portfolio maintenance as more fully described in each applicable Order Form.
2. Advocate Platform
- License to the Advocate Platform. Subject to your compliance with this Agreement, Advocate grants to you, a non-exclusive, non-transferable, and limited license to use the Advocate Platform during the term of the Agreement solely to solely for Customer’s internal business purposes in connection with the Insurance Review Services. Your use of the Advocate Platform is subject to any limitations described in this Agreement, and in any of the documentation accompanying the Advocate Platform.
- Restrictions on Use. Customer acknowledges and agrees that it is responsible for all use by Permitted Users of the Advocate Platform. Customer will ensure that all use by Permitted Users of the Advocate Platform is in compliance with this Agreement and any guidelines and policies published by Advocate and made available to Customer from time to time. Without limiting the generality of the foregoing, except as explicitly permitted in this Agreement, you will not yourself, and will not permit others to: (a) copy the Advocate Platform; (b) disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Advocate Platform or otherwise discern the source code of the Advocate Platform; (c) adapt, modify, translate, or create derivative works of the Advocate Platform; (d) probe, test, circumvent, disable, or otherwise interfere with features related to security or authentication measures; (e) use any robot, spider, search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation thereof (e.g., "scraping"); (f) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Advocate Platform or any of Borrower’s rights therein; (g) use the Advocate Platform to create, collect, transmit, store, use, or process any data that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); (h) attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g., using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); (i) interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the Advocate Platform, or other activity that interferes with or creates an undue burden on the Advocate Platform; (j) use the Advocate Platform to conduct any unlawful or fraudulent activities, send unsolicited communications or spam, publish or link to malicious content designed to disrupt another individual’s browser or computer; or (k) use the Advocate Platform in any way not specifically permitted under this Agreement.
- Suspension of Access; Scheduled Downtime; Modifications. Advocate may from time to time and in its discretion, (i) without limiting any of its other rights or remedies at law or in equity under this Agreement, suspend Customer’s access to or use of the Advocate Platform or any component thereof: (a) for scheduled maintenance; (b) due to a Force Majeure event, (c) if Customer or any Permitted User violates any provision of this Agreement, including, for greater certainty, any of the restrictions set out in Section 2.2 above; (d) to address any security concerns; or (e) if required to do so by a governmental or regulatory authority or as a result of a change in applicable law; and (ii) modify or delete features and functions of the Advocate Platform, and may substitute old features or functions with new features and functions, as may be necessary to meet applicable laws or industry-standard requirements or demands or requirements of third party service providers, or otherwise in its discretion.
3. Insurance Review Services
- Advocate’s Obligations. Advocate will provide the Insurance Review Services to Customer as further set forth in the Order Form. Advocate shall use commercially reasonable efforts to provide Customer with the deliverables set forth in the Order Form in connection with the Insurance Review Services ordered by Customer within the time frames set forth therein.
- Customer’s Obligations. Customer shall cooperate with Advocate in the performance of the Insurance Review Services by (to the extent applicable for the Insurance Review Services Customer is purchasing): (i) providing the Insurance Requirements to Advocate, (ii) providing Advocate with all relevant information with respect to the Borrowers to enable Advocate to perform the Insurance Review Services, (iii) determining in its sole discretion whether to direct Advocate to approve a non-compliant loan, and (iv) answering questions and information as reasonably requested by Advocate. If Customer has not provided such assistance, including but not limited to providing all necessary cooperation or information to Advocate, or Advocate is otherwise denied or delayed access or information by Customer, then Advocate will be excused, without liability, from completing the Insurance Review Services until such time, if any, as Customer has provided the necessary assistance. Such failure to perform the Insurance Review Services resulting from Customer’s failures will not relieve Customer from its payment obligations to Advocate. Further, Customer acknowledges that Advocate is relying on the above information to be provided by Customer and that Advocate shall have no liability in connection with any reliance thereon in performing the Insurance Review Services.
4. Ownership and Licenses
- Ownership of the Advocate Platform. As between Customer and Advocate, the Advocate Platform and all Intellectual Property Rights therein or relating thereto are and shall remain the exclusive property of Advocate. Nothing in this Agreement shall be interpreted to provide Customer with any rights in the foregoing, except the limited right to use the Services subject to this Agreement.
- Customer Data. Customer retains all ownership rights, including ownership of all Intellectual Property Rights in and to the Customer Data. Customer grants to Advocate a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to access, collect, use, process, store, disclose, and transmit Customer Data to: (i) provide the Services; and (ii) produce data, information, machine learning models, or other materials that are not identifiable as relating to Customer, Borrowers, the personnel of either of them or the insured asset (such data, information and materials, the "Aggregated Data"). Customer Data shall not include Aggregated Data, and Advocate may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind.
- Advocate Metadata. Advocate or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to the metadata that is generated by the Services resulting from Customer’s use of the Advocate Platform ("Advocate Metadata").
- Deliverables. Except as set forth in this paragraph, and provided that Customer has paid Advocate all Fees (as defined below) owed under this Agreement, Advocate shall assign all Intellectual Property Rights in and to any deliverables created in connection with the provision of the Insurance Review Services to Customer. Notwithstanding the foregoing, Advocate shall retain ownership, including all Intellectual Property Rights therein, of all its Confidential Information that is included in the deliverables as well as any pre-existing or independently developed materials owned or licensed by Advocate (“Embedded Materials”). Advocate grants Customer a non-exclusive, worldwide, perpetual license in and to the Embedded Materials to use solely in connection with the deliverables.
- Feedback. Customer hereby assigns to Advocate all right, title and interest in and to all feedback, suggestions, ideas, improvements and other comments provided by Customer to Advocate relating to the Services (collectively, "Feedback"), and Advocate will have the unrestricted right to use and disclose Feedback, without duty or obligation to Customer, and Customer acknowledges that any improvements, modifications and changes arising from or in connection with Customer’s contribution to the Services are the exclusive property of Advocate.
- Retention of Rights. Except for the limited rights or licenses that Advocate grants to Customer hereunder, Advocate or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to: (i) the Services; and (ii) any modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations to the foregoing.
5. Privacy / Data
The parties acknowledge that the performance of the Services involves the collection and use of various categories of data, some of which may constitute Personal Data. Customer shall be responsible for Customer Data that Customer provides or uses in the Services, and Customer is solely responsible for determining the suitability of the Services for Customer’s business and complying with any regulations, laws, or conventions applicable to the Customer Data. Under no circumstances will Advocate be liable in any way for any data, including Customer Data, viewed in or submitted to the Advocate Platform or otherwise provided to Advocate, including, but not limited to, any errors or omissions in any such data, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data. The DPA sets out the respective obligations of Advocate and Customer with regard to the processing of Personal Data of Borrowers in relation to the Services. Customer acknowledges that although Advocate takes commercially reasonable measures and industry-standard security methods to protect the data it collects, no method of electronic communication or security can be guaranteed.
6. Access to the Advocate Platform; Customer User Account; Responsibility for Permitted Users
Upon Customer’s request, Advocate will:
(a) issue one or more accounts (each, a “Customer User Account”) to Customer for use by Customer and its Permitted Users; and
(b) designate one or more Customer User Accounts as administrator accounts that provides Customer with the capability to administer, maintain, and manage certain features of the Advocate Platform. Customer will ensure that Permitted Users only use the Advocate Platform through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer is responsible for maintaining the security of and access to its passwords and files and is responsible for all uses of its Subscription with or without its knowledge or consent. Customer will not disclose passwords, certificates, authorizations, or other access controls to anyone other than Permitted Users, and Customer will use reasonable efforts to prevent unauthorized access to the foregoing. Customer will promptly notify Advocate of any actual or suspected unauthorized use of the Advocate Platform. Advocate reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose. Customer is responsible for ensuring that all Permitted Users are aware of and comply with the terms of this Agreement. Any breach of this Agreement by such individuals shall be deemed to be a breach by Customer.
7. Third-Party Content, Websites or Services.
The Advocate Platform may provide links or access to third-party content, websites, datasets, services or systems. Advocate does not endorse any third-party content, websites, datasets, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third-party content, websites, datasets, services, or systems are not under the control of Advocate, and if you choose to access any such content, websites, datasets, services, or systems, you do so entirely at your own risk. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
8. Fees and Payment
- Fees. Customer will pay to Advocate the fees described in any and all Order Forms (the “Fees”) in accordance with the terms set forth therein. Fees are exclusive of all taxes other than taxes on Advocate’s net income, and Customer shall pay (and Advocate shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with this Agreement, including, without limitation, any federal, provincial, state and local sales, use, goods and services, value-added, withholding, and personal property taxes on any payments due in connection with the Services provided hereunder.
- Changes to the Fees. Unless otherwise specified on an Order Form, Advocate reserves the right to change the Fees and institute new charges for Services upon prior notice to Customer. Such new Fees shall be applicable for Services not yet ordered by Customer and Customer shall be able to terminate the Agreement at any time after such notice if it does not wish to incur the new Fees.
- Late Payment. Without limiting Advocate’s other rights and remedies, if Customer does not pay any amount when due, then fifteen days after the day such payment was due (a) interest shall accrue on such undisputed amounts at 1.5% per month (or less, as per the maximum amount allowed by applicable law); (b) to the extent applicable, Customer shall pay any third party costs of collection (including, without limitation, reasonable attorneys’ and professionals’ fees); and (c) Advocate may, upon notice, suspend providing Services to the Customer until such undisputed amounts are paid in full. To the extent Customer believes an amount charged or invoiced is incorrect, Customer must contact Advocate within 30 days of receiving the relevant invoice or Customer’s right to dispute any charges will be deemed to be waived.
- Suspension. Any permitted suspension of the Services by Advocate pursuant to this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
9. Term and Termination
- Term. This Agreement will commence on the Effective Date and will continue as long as there is an Order Form in effect, or until otherwise terminated in writing by the Parties as provided in this Section.
- Termination for Convenience. Unless specified otherwise on an Order Form, either Party may terminate this Agreement with respect to the Services or any Order Form at any time and for any reason without liability or penalty by providing at least 30 days advance written notice to the other Party. In such event, Advocate will refund to Customer, on a pro-rata basis, any unused prepaid Fees paid for the Subscription for any period following the effective date of termination.
- Termination for Cause. If Customer fails to comply with any provision of these Agreement, Advocate may terminate this Agreement immediately and retain any Fees previously paid by Customer, if applicable. Upon any such termination, Customer must cease any further use of the Services. If at any time Customer is not happy with the Services, Customer’s sole remedy is to cease using the Services. Within 180 calendar days following termination or such other period as set out in an Order Form in connection with the Services, Advocate will, at Customer’s option, return to Customer or delete or otherwise render inaccessible the Customer Data that remains in the hardware or systems used by Advocate to provide the Services.
10. Confidential Information
- Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, including, where the Discloser is Customer, Customer Data, and, where the Discloser is Advocate, Advocate Metadata or Services; provided that Discloser’s Confidential Information does not include, except with respect to Personal Data: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
- Confidentiality Covenants. Recipient hereby agrees that it will not, except to exercise its rights or perform its obligations under this Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or Affiliates that have a “need to know” and that have entered into written terms no less protective of such Confidential Information than this Section 10 and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry-standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
- Exceptions to Confidentiality. Notwithstanding Section 10.2, Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) to potential assignees, acquirers or successors of Advocate if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Advocate.
- Injunctive Relief. The Recipient acknowledges that disclosure of any Confidential Information by it will give rise to irreparable injury to the Discloser or the owner of such information, not adequately compensated by damages. Accordingly, the Discloser will be entitled to equitable relief, including injunctive relief and specific performance against the breach or threatened breach of the undertakings in this Section 10, in addition to any other legal remedies which may be available.
11. Your Warranties; Disclaimer
- Data Rights. You represent and warrant that you have and shall maintain for the duration of this Agreement all right, license and consent required under applicable law to provide Advocate with Customer Data for the provision of the Services pursuant to this Agreement.
- Compliance. Customer further represents and warrants that (a) it is not named on any U.S. or other list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S, and (b) it is not a national of, or a company registered in, any jurisdiction in which the provision of the provision of the other party’s goods or services is prohibited under U.S. or other applicable laws or regulations.
a. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, ADVOCATE DOES NOT MAKE ANY WARRANTY REGARDING THE SERVICES ADVOCATE MAKES NO WARRANTIES UNDER THESE TERMS WITH RESPECT TO ANY THIRD-PARTY SOFTWARE, HARDWARE OR OTHER PRODUCTS EMBEDDED IN OR INCLUDED WITH THE SERVICE OR FURNISHED TO CUSTOMER BY ADVOCATE.
b. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ADVOCATE HEREBY DISCLAIMS ALL IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, ADVOCATE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO YOU IN CONNECTION WITH YOUR USE OF THE ADVOCATE PLATFORM (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY YOU FOR ANY PURPOSE WHATSOEVER.
CUSTOMER AGREES TO INDEMNIFY, DEFEND (AT ADVOCATE’S OPTION), AND HOLD ADVOCATE AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, CONTRACTORS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING), HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR USE OF THE SERVICES, THE CUSTOMER DATA, YOUR VIOLATION OF THESE TERMS, YOUR VIOLATION OF ANY APPLICABLE LAW, AND/OR YOUR VIOLATION OF ANY RIGHTS, INCLUDING PRIVACY RIGHTS, OF ANOTHER INDIVIDUAL OR ENTITY. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
13. Limitation of Liability
IN NO EVENT SHALL ADVOCATE OR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY PENALTIES, CLAIMS FOR LOST DATA, REVENUE, PROFITS, COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICE OR BUSINESS OPPORTUNITIES, ARISING OUT OF THESE TERMS OR ANY ADDENDUM THERETO, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ADVOCATE’S MAXIMUM AND AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE OF ACTION OR THEORY OF LIABILITY EXCEED THE AMOUNTS PAID BY CUSTOMER TO ADVOCATE HEREUNDER DURING THE 12 MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you. If you are located in the State of New Jersey, or a resident of another state that permits the exclusion of these warranties and liabilities, the limitations above do apply to you.If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her, would have materially affected his or her settlement with the debtor or released party.” This release includes the criminal acts of others.
Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices will be sent: (i) if to Advocate, to the following address: Advocate Technologies, Inc. 138 Wooster Street, Floor 3, New York, New York, 10012, Attn: Advocate Management with a copy to firstname.lastname@example.org and (ii) if to you to the current postal or email address that Advocate has on file for you, if any, or another address that you provide to Advocate. Advocate may change its contact information by posting the new contact information on its website, through the Advocate Platform or by giving notice thereof to you.
15. Binding Arbitration and Class Action Waiver
- Initial Dispute Resolution. Most disputes can be resolved without resorting to litigation. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Advocate, and good faith negotiations as part of this informal dispute resolution process shall be a condition to either party initiating a lawsuit or arbitration. This requires first sending a written description of the dispute to the other party. For any dispute you initiate, you agree to send the written description of the dispute along with the email address associated with your account to the following email address: email@example.com. For any dispute that Advocate initiates, we will send our written description of the dispute to the email address associated with your Advocate account. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought.
- Binding Arbitration. If the Parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution begins under the Initial Dispute Resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including their formation, performance and breach), the Parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Streamlined Arbitration and Procedures, excluding any rules or procedures governing or permitting class or representative actions.
Except as set forth in Section 11.1, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The Parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. The arbitrator’s award shall be written, and binding on the Parties and may be entered as a judgment in any court of competent jurisdiction. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
JAMS Arbitration Rules & Procedures governing the arbitration may be accessed at www.jamsadr.com or by calling JAMS at (800) 352-5267. The Streamlined Arbitration Rules & Procedures shall apply for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures shall apply for claims exceeding $250,000, excluding any rules or procedures governing or permitting class actions.
To start an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 2 Embarcadero Center Suite 1500, San Francisco, CA 94111; and (c) send one copy of the Demand for Arbitration to Advocate by mail to the Advocate address indicated in the Notices paragraph above and a copy by email to the Advocate email address indicated there.
If you commence arbitration in accordance with these Terms, you will be required to pay $250 to initiate the arbitration. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require Advocate to pay the additional cost. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. Fees and costs in connection with the arbitration will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorney’s fees in certain cases.
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).
The Parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The Parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 11 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.
The Parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
- Location. Arbitration shall be initiated in New York City, New York, United States of America, and you and Advocate agree to submit to the personal jurisdiction of any federal or state court in New York City, New York, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- Class Action Waiver. The Parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND ADVOCATE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOUR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM, UNLESS ADVOCATE PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- Exception - Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
- Changes to this Section. Advocate will provide 30 days’ notice of any changes to this section, by posting on the Services, sending you a message, or otherwise notifying you directly. Changes will become effective on the 30th day. If you continue to use the Services after the 30th day, you agree that any unfilled claims of which Advocate does not have actual notice are subject to the revised clause.
16. Choice of Law and Jurisdiction
17. General Information
- Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- Section Titles. The section titles in the Terms are for convenience only and have no legal or contractual effect.
- Construction. Except as otherwise provided in these Terms, the Parties’ rights and remedies under these Terms are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of these Terms are for reference purposes only and have no substantive effect.
- Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure Event”).
- Survival. The following Sections, together with any other provision of this Terms which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Terms, will survive expiration or termination of this Terms for any reason: Section 4 (Ownership and Licenses), Section 5 (Privacy/Data) Section 11 (Your Warranties; Disclaimer), Section 12 (Indemnification) Section 13 (Limitation of Liability), Section 14 (Notices), Section 15 (Binding Arbitration and Class Action Waiver), Section 16 (Choice of Law and Jurisdiction) and Section 17 (General Information).
- Assignment. Advocate may, upon giving written notice to you, assign its rights and obligations under these Terms to any of its affiliates or pursuant to a merger, sale, or other corporate reorganization of all or substantially all of its assets relating to that portion of its business that delivers the Advocate Platform. In this case, such assignee will have and may exercise all the rights, and will assume all of the obligations, of Advocate under these Terms, except that the assignment will not release Advocate from liability for Advocate’s obligations under these Terms. Except for such permitted assignment, neither Party may assign these Terms or any rights or obligations under these Terms without the prior written consent of each of the other Party. These Terms ensure to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
- Sever-ability. Any provision of these Terms found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from these Terms and all other provisions of these Terms will remain in full force and effect.
- Waiver. A waiver of any provision of these Terms will be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Entire Terms. These Terms constitute the entire Terms between the Parties with respect to the subject matter of these Terms and supersede all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.