YOUR USE OF AND ACCESS TO OUR SERVICES (AS DEFINED BELOW) IS SUBJECT TO THE FOLLOWING TERMS. PLEASE READ THESE TERMS CAREFULLY, AS THEY INCLUDE INFORMATION ABOUT FUTURE CHANGES TO THESE TERMS, LIMITATIONS OF LIABILITY, A CLASS ACTION WAIVER, AND AN AGREEMENT TO RESOLVE DISPUTES BY ARBITRATION INSTEAD OF BY A COURT PROCEEDING. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING TERMS, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Effective date: February 6, 2020
Welcome to EQUITYMULTIPLE. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Phone: (646) 844-9918
Address: 1140 Broadway, New York, NY 10001
EQUITYMULTIPLE’s financial technology platform provides qualifying investors the opportunity to invest in securities relating to real estate investments and qualifying real estate operating companies the opportunity to obtain financing for their projects. Users of our Services who meet certain financial requirements (each, an “Investor”) may register an account, view prospective and historical investment information, enter into and fund investments and monitor portfolio performance. Investors who wish to invest in real estate projects (each, a “Project”) through the Services must qualify as Accredited Investors (as defined below). When we use the word “you” in these Terms, it refers to any user, including Investors, Accredited Investors and other visitors to our site, while if we use a specific term it only applies to that category of user.
The information made available through the Services, including without limitation with respect to any Content (as defined below) contained in or accessed through the Services, is provided without reference to any particular user’s investment requirements or financial situation. The Services and Content do not constitute financial, legal, or tax advice. You agree that you are not relying on EQUITYMULTIPLE or any of its affiliates, officers, directors, partners, agents or employees in making an investment decision. Always consider seeking the advice of a qualified professional before making decisions regarding your business and/or investments. EQUITYMULTIPLE does not endorse any investments and shall not be responsible in any way for any transactions you enter via the Services. You agree that EQUITYMULTIPLE (including its affiliates, officers, directors, partners, agents and/or employees) will not be liable for any loss or damages of any sort incurred as a result of any transaction you enter into via the Services.
What about my privacy?
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under thirteen (13). We do not knowingly collect or solicit personally identifiable information from children under thirteen (13); if you are a child under thirteen (13), please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under thirteen (13), we will delete that information as quickly as possible. If you believe that a child under thirteen (13) may have provided us personal information, please contact us at help@EquityMultiple.com.
Terms of Securities Offerings
The securities offered or made available through the Services have not been registered under the Securities Act of 1933 (the “Securities Act”) and are offered in reliance on exemptions provided by Section 4(a)(2) of the Securities Act and Regulation D and Rule 506, and/or Regulation S, promulgated thereunder. Securities sold through private placements are restricted and not publicly traded, and are therefore illiquid. Neither the U.S. Securities and Exchange Commission nor any state securities commission or other regulatory authority has approved, passed upon or endorsed any offering of securities conducted or made available through the Services.
EQUITYMULTIPLE is not a registered broker-dealer, funding portal, or investment advisor and does not conduct any activity that would require such registration. Equity securities are offered through Growth Capital Services, Inc. (“GCS”), which is a broker/dealer registered with the U.S. Securities and Exchange Commission and a member of the Financial Industry Regulatory Authority, Inc. Individual personnel of EQUITYMULTIPLE are registered representatives of GCS. EQUITYMULTIPLE and/or its affiliated issuer entities pay GCS certain fees in connection with GCS’s brokerage services. GCS has developed a business continuity plan for how it will respond to events that significantly disrupt its business. GCS is located at 582 Market Street, Suite 300, San Francisco, CA 94104.
Investment overviews made available through the Services, including with respect to any Content contained in or accessed through the Services, contain summaries of the purpose and principal business terms of the investment opportunity which is the subject of the overview. Such summaries are intended for informational purposes only and do not purport to be complete, and each is qualified in its entirety by reference to the more detailed discussions contained in the investor document package relating to such investment opportunity.
Notwithstanding anything to the contrary in these Terms, in no event shall anything in these Terms be deemed to be a waiver, and we will not assert there has been a waiver, that would be impermissible under Section 14 of the Securities Act of 1933, Section 29(a) of the Securities Exchange Act of 1934, or any other applicable provision of federal and state securities laws.
Real Estate Offerings
Only Accredited Investors may purchase and/or invest in any real estate offerings made available through the Services. Any such Accredited Investors must understand the high risk associated with private real estate investments, and be willing to bear the consequences of that risk. You acknowledge and agree that you have significant experience investing in investments of the type offered through the Services, including, without limitation, real estate, equities, notes and other securities, you understand that all of the investments offered through the Services are inherently very risky, and you understand the risks associated with the investments offered through the Services, and you are comfortable with the risk of losing your entire investment invested through the Services. You further acknowledge and agree that investing in private placements carries with it low liquidity concerns and long-term commitments and that the securities sold through private placements are not publicly traded. Additionally, investors may receive restricted securities that are subject to holding period requirements. For those reasons, certain offerings may be made available only to certain institutional investors and high net worth individuals and entities.
You acknowledge and agree that EQUITYMULTIPLE is not a registered Investment Company or Investment Advisor within the meaning of the Investment Company Act of 1940 and the Investment Advisors Act of 1940, respectively. You should obtain investment and tax advice from your advisers before deciding to invest. Investment products are not FDIC insured, may lose value, and there is no bank guarantee.
What are the basics of using EQUITYMULTIPLE?
You may be required to sign up for an account, select a password and user name (“User ID”), and provide us with certain information or data, such as your contact information, financial information and information to verify your identity. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a “Third Party Account”), such as those offered by Google. By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Services for your own internal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your User ID, account or password with anyone, and you must protect the security of your User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your User ID and account.
If you are an Investor, the terms in the following section apply to you:
You understand and agree that EQUITYMULTIPLE does not guarantee the performance of any offerings made available through the Services. The fact that an investment opportunity is made available on or through the Services is not intended to be investment advice, and any and all projections, estimates, and expectations for investments offered through the Services are opinions and should not be relied on. You are solely responsible for conducting any legal, accounting or due diligence review, and are encouraged to consult with professional tax, legal and financial advisors before making any investment.
- Identity and Status Verification Information. Each Investor must provide information designed to verify his or her identity. Such information may include (i) a copy of your drivers’ license, passport or other government issued identification, (ii) information from a successfully completed electronic check transaction, (iii) a credit report, (iv) tax returns or other tax related documents, (v) brokerage or other securities trading account statements, or (iv) other similar information designed to authenticate and confirm your identity and status as an Accredited Investor.
- Investor Financial Information. Each Investor must also provide a Form W-9 Information, Specific-Qualifications Information and Payment Information (collectively the “Investor Financial Information”).
- Form W-9 Information. For tax purposes, each Investor must provide a completed Internal Revenue Service Form W-9 which includes your Social Security Number (or Taxpayer Identification Number, where applicable).
- Specific-Qualifications Information. Investors must also provide other information sufficient to meet regulatory “suitability” requirements for investing in a Project presented through the Services, in part by way of our Investor Qualifying Questions. Depending on the nature of the offering, this information will include: (i) information concerning an Investor’s net worth and income; (ii) information concerning his or her residency; and (iii) other information we might request to determine whether an Investor qualifies for a particular investment.
- Verification of Accredited Investor Status. In certain instances, we are required to verify the Accredited Investor status of Investors who invest in Projects through the Services. In addition to the representations required to be made and questionnaires required to be submitted by Investors, you agree that we may collect additional information to fulfill our responsibility to verify your Accredited Investor status. The means we may use to verify your Accredited Investor status include without limitation: publicly available information filed with a federal, state or local regulatory body, third-party information including Forms W-2, IRS Forms 1099 (as defined below), Schedule K-1 and/or Form 1065, filed Forms 1040, information disclosed in industry or trade publications, written confirmations from broker-dealers, licensed attorneys or certified public accountants, banking statements, brokerage statements, credit reports, certificates of deposit, tax assessments or appraisal reports issued by independent third parties. In the registration process, you will obtain a user name and password. You acknowledge and agree that we may use third party services providers to conduct this verification for us and you agree to provide us or them with any information we reasonably request to verify your status as an Accredited Investor.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at www.EquityMultiple.com, send you an email, and/or notify you by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
Consent to Electronic Transactions and Disclosures
Because EQUITYMULTIPLE operates largely on the Internet, it is necessary for you to consent to transact business with us online and electronically. Before you decide to do business electronically with EQUITYMULTIPLE and GCS, you must satisfy the following computer hardware and software requirements: access to the Internet; an email account and related software capable of receiving email through the Internet; a web browser which is SSL-compliant and supports secure sessions, Chrome version 32.0 or higher, Firefox version 26.0 or higher, Microsoft Edge 79.x or higher, or Safari version 7.0 or higher, or the equivalent software; and hardware capable of running this software.
As part of doing business with EQUITYMULTIPLE and GCS, you must also consent to our giving you certain disclosures electronically, either via our site or to the email address you provide to us. By agreeing to the Terms, you agree to receive electronically all documents, communications, notices, contracts, and agreements, including any IRS Form 1099, K-1 or other tax forms, schedules or information statements, arising from or relating to your registration as an Investor on our site, any investments you may make, your use of this Services, and the servicing of any investment you may make (each, a “Disclosure”), from EQUITYMULTIPLE, GCS, or any service provider either of us may use. An IRS Form 1099 refers to any Form 1099 or other form, schedule or information statement, including corrections of any of the foregoing, required to be provided pursuant to the U.S. Internal Revenue Service rules and regulations and that may be provided electronically (each, an “IRS Form 1099”). We may elect at any time to cease delivering tax forms or other documents through electronic means and revert to paper documents in our sole discretion.
The decision to do business with EQUITYMULTIPLE and GCS electronically is yours. You may withdraw your consent to electronic delivery by written notice to EQUITYMULTIPLE and GCS and such withdrawal will take effect within 90 days of receipt of such notice.
Your consent to receive Disclosures and transact business electronically, and our agreement to do so, applies to any transactions to which such Disclosures relate, whether between you and EQUITYMULTIPLE or between you and GCS. Your consent will remain in effect for so long as you are a user and, if you are no longer a user, such consent will continue until such time as all Disclosures relevant to transactions that occurred while you were a user have been made.
If you are accessing our site and the Disclosures electronically via a mobile device (such as a smart phone, tablet, and the like), in addition to the above requirements you must make sure that you have software on your mobile device that allows you to print and save the Disclosures presented to you during the application process. These applications can be found for most mobile devices in the applicable app store. If you do not have these capabilities on your mobile device, please access our site and Services through a device that provides these capabilities.
You may not withdraw such consent as long as you have any outstanding investments made through the Services. If you have no such outstanding investments and wish to withdraw consent to doing business electronically, we will terminate your registered user account with us. You may contact us at the email, phone number or physical addresses set forth at the beginning of the Terms.
Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
- infringes or violates the intellectual property rights or any other rights of anyone else (including EQUITYMULTIPLE);
- violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by EQUITYMULTIPLE;
- is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- jeopardizes the security of your User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
- attempts, in any manner, to obtain the password, account, or other security information from any other user;
- violates the security of any computer network, or cracks any passwords or security encryption codes;
- runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
- copies or stores any significant portion of the Content; or
- decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including EQUITYMULTIPLE’S) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that EQUITYMULTIPLE owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
What about anything I contribute to the Services – do I have to grant any licenses to EQUITYMULTIPLE or to other users?
Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission”. Some User Submissions may be viewable by other users. You are solely responsible for all User Submissions you contribute to the Services. You represent that all User Submissions submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
By submitting User Submissions through the Services, you hereby do and shall grant EQUITYMULTIPLE a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with this site, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of this site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your account or the Services. You also hereby do and shall grant each user of this site and/or the Services a non-exclusive, perpetual license to access your User Submissions through this site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions, including after your termination of your account or the Services. For clarity, the foregoing license grants to us and our users do not affect your other ownership or license rights in your User Submissions, including the right to grant additional licenses to your User Submissions, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Finally, you understand and agree that EQUITYMULTIPLE, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
What if I see something on the Services that infringes my copyright?
We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here.
Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by EQUITYMULTIPLE. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that EQUITYMULTIPLE is not responsible for such risks.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that EQUITYMULTIPLE shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that EQUITYMULTIPLE is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release EQUITYMULTIPLE, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “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 by him or her, would have materially affected his or her settlement with the debtor or released party.”
Will We ever change the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please see our Fees, Carries & Distributions page to learn more about how we calculate fees and expenses. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms.
- EQUITYMULTIPLE and GCS generally receive payments, and make disbursements, through electronic funds transfers (ACH transfers) using the bank (or other financial institution) account information you provide to us. You authorize such bank or other financial account to pay any amounts described herein, and you authorize EQUITYMULTIPLE or GCS to make any and all investment disbursements to such account. YOU MUST PROMPTLY UPDATE ALL INFORMATION REGARDING YOUR BANK OR OTHER ACCOUNT TO KEEP SUCH INFORMATION CURRENT, COMPLETE AND ACCURATE, AND YOU MUST PROMPTLY NOTIFY US ANY TIME THE INFORMATION EARLIER PROVIDED CHANGES AND/OR IS NO LONGER VALID, IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD OR UPON EQUITYMULTIPLE’S REQUEST.
What if I want to stop using the Services?
EQUITYMULTIPLE is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. EQUITYMULTIPLE has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at help@EquityMultiple.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What else do I need to know?
Warranty Disclaimer. EQUITYMULTIPLE and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (EQUITYMULTIPLE and all such parties together, the “EQUITYMULTIPLE Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the EQUITYMULTIPLE Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The EQUITYMULTIPLE Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased, or that you may invest in, through or in connection with the Services. THE EQUITYMULTIPLE PARTIES MAKE NO WARRANTIES WHATSOEVER AS TO THE ACCURACY OR COMPLETENESS OF THE SERVICES OR CONTENT, INCLUDING ANY INFORMATION AVAILABLE IN ANY OFFERING DOCUMENT. THE SERVICES AND CONTENT ARE PROVIDED BY EQUITYMULTIPLE (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE EQUITYMULTIPLE PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY LOSS RESULTING FROM AN INVESTMENT OPPORTUNITY MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SERVICES, (C) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (D) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO EQUITYMULTIPLE IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (E) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the EQUITYMULTIPLE Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without EQUITYMULTIPLE’S prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with EQUITYMULTIPLE and limits the manner in which you can seek relief from EQUITYMULTIPLE. Both you and EQUITYMULTIPLE acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, EQUITYMULTIPLE’S officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York County, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. EQUITYMULTIPLE will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. EQUITYMULTIPLE will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or EQUITYMULTIPLE may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND EQUITYMULTIPLE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and EQUITYMULTIPLE are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and EQUITYMULTIPLE over whether to vacate or enforce an arbitration award, YOU AND EQUITYMULTIPLE WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor EQUITYMULTIPLE is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 32 Avenue of the Americas, New York, NY 10013 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or EQUITYMULTIPLE to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and EQUITYMULTIPLE agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York County, New York, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with EQUITYMULTIPLE.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the EQUITYMULTIPLE may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and EQUITYMULTIPLE agree that these Terms are the complete and exclusive statement of the mutual understanding between you and EQUITYMULTIPLE, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of EQUITYMULTIPLE, and you do not have any authority of any kind to bind EQUITYMULTIPLE in any respect whatsoever. You and EQUITYMULTIPLE agree there are no third-party beneficiaries intended under these Terms.