THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT OR JURY TRIALS OR CLASS ACTIONS AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION BEFORE YOU AGREE TO THESE TERMS.
Acceptance of Terms
Applicability of Terms
Portions of the Maxwell Platform are available to the general public and do not require a password or other mechanism to access such publicly available portions of the Maxwell Platform (the “General Information”). If you only access the Maxwell Platform for purposes of reviewing and accessing the General Information, these Terms apply to such access and use as applicable.
Other portions of the Maxwell Platform are only available to individuals that sign up for an account with Maxwell that enables them to access the password-protected portions of the Maxwell Platform. If you have created an account, you are deemed a “User”.
Some Users will have access to the Maxwell Platform subject to a separate agreement between such User or the User’s employer or other entity which the User is affiliated (a “Subscription Agreement”). Any User whose access to the Maxwell Platform is subject to a Subscription Agreement is referred to in these terms as a “Subscribing User”. In the event of any conflict between these Terms and a Subscription Agreement, the terms of the Subscription Agreement will control.
To utilize certain parts of the Maxwell Platform, you will be required to create an account through the Maxwell Platform. If you create any account, you must provide true, accurate, current, and complete information about you as may be prompted by any registration forms. If any information that you provide Maxwell changes, you must promptly update the relevant registration information.
By opening an account and becoming a User, you certify to Maxwell that: (a) you are at least 18 years of age; (b) you are legally able to enter into contracts; and (c) you are not a person barred from receiving or using any part of the Maxwell Platform under federal, state, local or other laws.
You are prohibited from using a false identity to create an account, creating an account for or on behalf of any other person, or otherwise misrepresenting your identity on the Maxwell Platform.
You are responsible for maintaining the confidentiality of your passwords. Maxwell has the right to assume that anyone accessing the Maxwell Platform using a valid password associated with your account has the right to do so. You will be solely responsible for the activities of anyone who accesses the Maxwell Platform using a valid password associated with your account, even if the individual is not in fact authorized by you. If you have reason to believe that your password has been compromised or used without authorization, you must promptly change it using the functionality provided through the Maxwell Platform. In addition, we encourage you to exit from your account at the end of each session and notify us if you become aware of any unauthorized use of your password or account.
Individual Users with paid accounts are subject to the following additional terms:
- Maxwell may change the rates from time to time by providing you with one (1) month’s prior notice.
- Maxwell may charge your credit card for (i) monthly subscription fees each month in advance, or (ii) for usage of individually priced elements of the Maxwell Platform (for example, QuickApply and FileFetch), and shall issue you a receipt for each such payment. You must notify Maxwell of any billing discrepancies within ten (10) days after the date of the applicable receipt to be eligible to receive an adjustment or credit (if any) on a future payment to Maxwell.
- You may not withhold or “setoff” any amounts due hereunder. Maxwell reserves the right to suspend your access to the Maxwell Platform until all past due amounts are paid in full. Any late payment shall be subject to any costs of collection and shall bear interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate if less, per month or fraction thereof until paid.
- Fees quoted do not include, and you shall indemnify and hold Maxwell harmless from, all sales, use, gross receipts, value-added, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) associated with your use of the Maxwell Platform (other than taxes based on the net income or profits of Maxwell).
Acceptable Use of the Maxwell Platform
Your use of the Maxwell Platform must comply with these Terms and the applicable Rules. Without limiting anything in these Terms or the applicable Rules, your use of the Maxwell Platform must comply with the following (“Acceptable Use Restrictions”):
- You shall not upload to, transmit through, or display via the Maxwell Platform any content that:
- is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene, or otherwise objectionable (as determined by Maxwell in its sole discretion), or infringes Maxwell’s or any third party’s intellectual property or other rights;
- contains confidential, proprietary, or trade secret information of anyone that you do not have the right to disclose through the Maxwell Platform;
- violates the rights of others, including, without limitation, any privacy rights or rights of publicity;
- impersonates any person or entity or falsely states, or otherwise misrepresents, your affiliation with any person or entity, or uses any fraudulent, misleading, or inaccurate email address or other contact information;
- violates any applicable laws or regulations;
- makes any statement, express or implied, that you are endorsed by Maxwell;
- harms minors in any way, including, but not limited to, depicting content that violates child pornography laws, child sexual exploitation laws, and laws prohibiting the depiction of minors engaged in sexual conduct;
- contains any unsolicited promotions, political campaigning, advertising, or solicitations; or
- in Maxwell’s sole judgment, is inappropriate or objectionable or which restricts or inhibits any other person from using and enjoying the Maxwell Platform or which may expose Maxwell and/or any of its officers, directors, employees, or other Users to any harm or liability of any type.
- You shall not use the Maxwell Platform to engage in any of the following activities:
- accessing, using, or uploading content to, or attempt to access, use, or upload content to another User’s account without permission;
- violating any federal, state, local, or other laws;
- violating the Rules;
- transmitting, uploading, or downloading any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs, or other items of a destructive nature;
- engaging in commercial activity, including, without limitation, commercial use of the Maxwell Platform, except for the purposes of engaging in the activities for which the Maxwell Platform was designed; or
- creating User accounts by automated means or under false, misleading, or fraudulent pretenses.
- Without limiting the foregoing, you shall not engage in, or attempt to engage in, any of the following:
- reproducing, copying, displaying, storing, performing, reposting, publishing, transmitting, distributing, selling, offering for sale, licensing, modifying, creating derivative works of, or otherwise using any portion of the Content offered on the Maxwell Platform other than for your own personal, non-commercial use;
- reformatting or framing any portion of the Maxwell Platform that are provided as a website;
- copying or modifying any code (including, but not limited to, HTML code) used to generate the Content or otherwise make the Maxwell Platform accessible;
- using any device, software, or procedure that interferes with, or attempts to interfere with, the normal operation of the Maxwell Platform;
- taking any action that imposes, or may impose in Maxwell’s sole discretion, an unreasonable or disproportionately large load on our IT infrastructure;
- modifying, adapting, translating, or reverse engineering any portion of the Maxwell Platform;
- disrupting or otherwise interfering with the Maxwell Platform or the networks or servers used by Maxwell;
- impersonating any person or entity or misrepresenting your connection or affiliation with a person or entity;
- collecting or storing, or attempting to collect or store, personal information about other users of the Maxwell Platform;
- or engaging in any activity that is illegal under federal, state, local, or other laws.
Maxwell is providing you with the information and functionality on the Maxwell Platform. Access to the Maxwell Platform requires access to the Internet. You are responsible for providing all equipment necessary to establish a connection to the Internet, access to the Internet, and any telephone, wireless or other connection and service fees associated with such access. Using the Maxwell Platform may allow you to receive Content on your mobile phone or other wireless device. The manner in which that Content is delivered to your phone or device may cause you to incur extra data, text messaging or other charges form your wireless carrier. MESSAGE AND DATA RATES MAY APPLY. You, not Maxwell, will be solely responsible for any carrier charges associated with your use of the Maxwell Platform. Please contact your carrier if you have questions about how the use of mobile applications and associated services might impact your wireless usage fees.
Maxwell reserves the right (but not the obligation) to terminate your access to the Maxwell Platform at any time without notice for any reason whatsoever.
You certify that you will comply with all applicable laws (e.g., federal, state, local, and other laws) when using the Maxwell Platform and any Content as permitted and in accordance with these Terms. YOU WILL BE RESPONSIBLE FOR ANY COST, EXPENSE, FEE, LIABILITY OF ANY KIND, AND ATTORNEY’S FEES THAT MAXWELL INCURS IF YOU BREAK THE LAW, VIOLATE THE RULES, MISUSE THE MAXWELL PLATFORM, OR BREACH THESE TERMS. IF YOU BREAK THE LAW, VIOLATE THE RULES, MISUSE THE MAXWELL PLATFORM, OR BREACH THESE TERMS, IN ADDITION TO, AND CONSISTENT WITH, OTHER INDEMNIFICATION OBLIGATIONS SET FORTH IN THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT YOU WILL REIMBURSE, INDEMNIFY, AND HOLD HARMLESS MAXWELL AND ITS PAST, PRESENT, AND FUTURE SUBSIDIARIES, PARENTS, AFFILIATED COMPANIES, AND THE EMPLOYEES, DIRECTORS, OFFICERS, INSURERS, AND AGENTS OF ALL AFOREMENTIONED COMPANIES, FROM ANY MONEY DAMAGES, COSTS, EXPENSES, LOSSES, LIABILITIES, AND ATTORNEY’S FEES RESULTING FROM ANY CLAIM, THREAT, DEMAND, SUIT, OR INVESTIGATION BROUGHT BY ANOTHER PERSON, ENTITY, OR GOVERNMENT. Without waiving any of these rights, Maxwell may, at its sole discretion, defend itself against any such claim, threat, demand, suit, or investigation without your consent. All of your obligations in this Section survive and continue after any termination of these Terms.
Maxwell will terminate your access to the Maxwell Platform if, under appropriate circumstances, you are determined to be a repeat infringer of these Terms or otherwise a nuisance to the Maxwell Platform. Maxwell reserves the sole and exclusive right to decide whether a comment or any other submission is inappropriate or otherwise violates these Terms, other than copyright infringement, such as, but not limited to, obscene, defamatory, or just plain obnoxious material. Maxwell may remove such comments or other submissions and/or terminate your access for uploading such material in violation of these Terms at any time, without prior notice and at its sole discretion.
Ownership of the Maxwell Platform
All right title and interest in and to the Maxwell Platform, including, but not limited to, all of the software and code that comprise and operate the Maxwell Platform and all of the text, photographs, images, illustrations, graphics, audio, video, audio-video clips, URLs, advertising copy, and other materials provided through the Maxwell Platform (collectively, the “Content”) are owned by Maxwell or by third parties who have licensed their content to us. The Maxwell Platform are protected under trademark, service mark, trade dress, copyright, patent, trade secret, and other intellectual property laws. In addition, the entire Content of the Maxwell Platform is a collective work under United States and international copyright laws and treaties, and Maxwell owns the copyright in the selection, coordination, arrangement, and enhancement of the Content of the Maxwell Platform.
We hereby grant you a limited, revocable license to download and print copies of any portion of the Content of the Maxwell Platform to which you have properly gained access, but only for your own personal, non-commercial use, and only if you do not remove, modify, or obscure any copyright, trademark, or other proprietary notices from the Content you download or print. The foregoing license is subject to these Terms and does not include the right to use any data mining, robots, or other automatic or manual device, software, program, code, algorithm, or methodology to access, copy, or monitor any portion of the Maxwell Platform, or in any way reproduce or circumvent the navigational structure or presentation of any part of the Maxwell Platform, or obtain, or attempt to obtain, any materials or information through any means not purposely made available by to you through the Maxwell Platform. We reserve the right to take measures to prevent any such activity. This license is revocable at any time without notice and with or without cause. You may not permit others to copy, distribute, perform or display publicly, prepare derivative works based on, broadcast, exploit, or use any part of the Content on the Maxwell Platform as expressly provided in these Terms. Nothing in these Terms shall be construed as transferring any right, title, or interest in the Maxwell Platform to you or anyone else, except the limited license to use the Maxwell Platform on the terms expressly set forth herein.
Notwithstanding the foregoing, and specifically with regard to trademarks, the Maxwell names and logos (including, but not limited to, those of its affiliates), all product and service names, all graphics, all button icons, and all trademarks, service marks, and logos appearing within the Maxwell Platform, unless otherwise noted, are trademarks (whether registered or not), service marks, and/or trade dress of Maxwell and/or those of its affiliates (collectively, the “Maxwell Marks”). All other trademarks, product names, company names, logos, service marks, and/or trade dress mentioned, displayed, cited, or otherwise indicated within the Maxwell Platform are the property of their respective owners. You are not authorized to display or use the Maxwell Marks in any manner without our prior written permission. You are not authorized to display or use trademarks, product names, company names, logos, service marks, and/or trade dress of third parties features within the Maxwell Platform without the prior written permission of such third parties. The use or misuse of the Maxwell Marks or other trademarks, product names, company names, logos, service marks, and/or trade dress or any other materials contained therein, except as permitted herein, is expressly prohibited.
User Provided Content
The Maxwell Platform allows certain messaging and sharing of information by Users which may be seen by other Users. Where settings are available, Maxwell will honor the choices Users make about who can see content or information, including any data, information, or material pertaining to a User or any third party, disclosed, provided, or submitted to Maxwell in connection with the Maxwell Platform (“User Data”). Maxwell is not obligated to publish any information or content on the Maxwell Platform, including any User Data, and may remove it in Maxwell’s sole discretion, with or without notice.
You shall be solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of User Data you provide through the Maxwell Platform, including through integration between the Maxwell Platform and any relevant financial accounts through which you provide bank statements, transaction history or relevant tax information (such as Form 1099s). You warrant that you have the right to possess and use all User Data you upload, submit, or otherwise provide through the Maxwell Platform, including the right to disclose User Data to Maxwell and use User Data in connection with the Maxwell Platform. You further represent and warrant that, prior to uploading, submitting, or otherwise providing any User Data through the Maxwell Platform or otherwise in connection with these Terms that: (a) you have received all required consents or authorizations with respect to such User Data referencing any individual; (b) you will use, store, and transfer all User Data in accordance with all laws applicable to you or, if applicable, your business (which may include, but is not limited to, the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338) (as amended from time to time, the “GLB Act”) and any state law equivalents of counterparts thereof and all regulations promulgated under any of them).
You are prohibited from disclosing information that you do not have the right to disclose, including the information of any third party, or that would result in the violation of anyone’s intellectual property rights.
As between you and Maxwell, you own the User Data and any other content and information that you submit or post to the Maxwell Platform, provided that you grant Maxwell a worldwide, transferable and sublicensable right to use, copy, modify, distribute, publish, and process, without any further consent, notice and/or compensation to you or others, any User Data and other information and content you provide through the Maxwell Platform.
If you are a Subscribing User whose employer or another entity has entered into a Subscription Agreement, you acknowledge and agree that the party to the applicable Subscription Agreement with Maxwell (the “Subscribing Party”) has the right to control your access to the Maxwell Platform and to receive reports on your use of the Maxwell Platform. In the event of any dispute between a Subscribing Party and a Subscribing User regarding rights to User Data, Maxwell shall not be responsible for the resolution thereof, and Maxwell shall be entitled to follow all reasonable instructions of the Subscribing Party with respect thereto.
You understand and agree that foregoing limited non-exclusive license grants Maxwell the right to share User Data relating to you with other Users in connection with the Maxwell Platform, subject to the same limitations set forth above.
You acknowledge and agree that the Maxwell Platform is used by third parties who may receive and retain certain information about you, including copies of your User Data, even though you have deleted such information from the Maxwell Platform. Maxwell is not responsible for the use or retention by such third parties of such information or User Data, and refers you to each such third parties respective privacy policies for the terms and conditions associated therewith.
To the extent you provide Maxwell with any ideas, suggestions, or other feedback regarding the Maxwell Platform (“Feedback”), you hereby agree that Maxwell shall have the full and unencumbered right to use that Feedback (and any intellectual property rights therein) for any purpose.
Maxwell may include your entity name in listings of its current customers, provide that you retain all right, title and interest in and to all of your logos, promotional graphics and related marketing designs, subject only to Maxwell’s worldwide, royalty-free, non-exclusive license to use the foregoing and your corporate and/or trade name for purposes of fulfilling its obligations hereunder and marketing Maxwell’s products and services to third parties.
The Maxwell Platform is an administrative platform only, designed to facilitate the document assembly, communication, and collaboration between Users through the mortgage process. Maxwell does not offer or provide loans directly and you acknowledge and agree that Maxwell is not a broker, agent, or insurer and has no control over the conduct of, or any pricing or other information provided by other Users. You acknowledge and agree that Maxwell is not a party to any transactions or agreements you enter into related to your use of the Maxwell Platform.
Without limiting any provision of these Terms, Maxwell does not (a) guarantee or ensure any loan amount, transaction fees, offer, or availability of any offer between you and other Users of the Maxwell Platform; (b) collect or process payment or transfer of title or security liens on behalf of Users, or otherwise act as an agent for any party to a loan or real estate transaction; (c) personally endorse any third party, including, but not limited to, any lender, borrower, or real estate agent; (d) make any guarantee, express or implied, that any information provided through the Maxwell Platform by a User is accurate; (e) verify the information that Users supply; (f) guarantee any loan products provided by Users of the Maxwell Platform; (g) verify or represent that information provided by Users comply with applicable laws; or (h) control how any User uses another User’s information.
You acknowledge and agree that Maxwell is a passive conduit for the collaboration amongst Users and has no responsibility for, or any involvement in, any transactions amongst and between Users and other third parties. You further acknowledge and agree that any transaction you enter into with another User will be governed by terms agreed upon between you and such other User. You must determine the value and appropriateness of any transaction you enter into with another User. Maxwell expressly disclaims any and all liability or responsibility for the success and compliance with applicable laws of any transaction you enter into with another User.
Additional Privacy Terms
Third Party Websites and Advertising
The Maxwell Platform may contain links to, integrate with, and/or provide functionalities that permit connection to websites and services that are owned or controlled by third parties. Maxwell has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party website or service and you expressly agree that Maxwell does not need to give you notice that you are leaving the Maxwell Platform or are connecting to a third party service. In addition, Maxwell will not, and cannot, censor or edit the content of any third party website or service. By using the Maxwell Platform you expressly relieve Maxwell from any and all liability arising from your use of any third party website or service. We encourage you to be aware that when you leave the Maxwell Platform and to read the terms and conditions of each other website that you visit.
Advertising may be presented to you when you use the Maxwell Platform. You consent to receiving such advertisements. You also acknowledge and agree that Maxwell is not responsible for any products or services provided by advertisers outside of Maxwell, its subsidiaries, or its affiliated companies.
If you are a copyright owner or an agent thereof and believe that any user submission or other content on the Maxwell Platform infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Maxwell with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Maxwell to locate the material;
- Information reasonably sufficient to permit Maxwell to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
DMCA claims may be sent to the following address:
- Maxwell Financial Labs Inc.
- 518 17th Street, Suite 950
- Denver, CO 80202
DMCA claims can also be sent to Maxwell’s Copyright Agent via email at [email protected] (subject line: “DMCA Takedown Request”).
If you believe that your User Data was removed (or to which access was disabled) pursuant to a DMCA Takedown request is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use such User Data, you may send a written counter-notice containing the following information to Maxwell using the contact information above. The counter-notice must include the following:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location oat which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or, if your address is outside of the United States, for any judicial district in which Maxwell may be found, and that you will accept service of process from the person who provided the notification under the DMCA or an agent of that person.
Upon receipt of an appropriate written counter notification from you, as described above, Maxwell will provide the person who provided the notification under the DMCA with a copy of the counter notification, and inform such person that Maxwell will replace the removed material or cease disabling access to it in 10 business days. Thereafter, Maxwell will replace the removed material and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notification, unless Maxwell’s designated agent first receives notice from the person who provided notification under the DMCA that such person has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Maxwell Platform.
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
YOU AGREE THAT BY USING THE MAXWELL PLATFORM YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST MAXWELL ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, YOUR USE OF THE PLATFORM OR SERVICES, OR YOUR DEALINGS WITH MAXWELL SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FEDERAL ARBITRATION ACT. THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION. THE ARBITRATION WILL BE CONDUCTED USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF ANY ARBITRATION ORGANIZATION OR ARBITRATOR THAT YOU AND MAXWELL AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT. FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS YOU MUST ABIDE BY THE FOLLOWING RULES: (A) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (B) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN DENVER COUNTY, COLORADO. THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. IN ANY ARBITRATION PROCEEDING BETWEEN YOU AND MAXWELL IN CONNECTION WITH THESE TERMS, YOUR USE OF THE MAXWELL PLATFORM, OR YOUR DEALINGS WITH MAXWELL, THE PREVAILING PARTY WILL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEY’S FEES AND COSTS IN SUCH ARBITRATION FROM THE OTHER PARTY.
THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, YOUR USE OF THE MAXWELL PLATFORM, OR YOUR DEALINGS WITH MAXWELL MUST BE COMMENCED IN ARBITRATION WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT TWO (2) YEAR PERIOD, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE’S STATUTE OF LIMITATIONS LAWS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.
YOU AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THE ARBITRATION PROVISION (i.e., WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION) SHALL BE DETERMINED BY THE ARBITRATOR. NOTWITHSTANDING ANY PROVISION IN THESE TERMS TO THE CONTRARY, IF THE CLASS-ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS. IF THE ARBITRATION PROVISION IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, THEN THE PROCEEDINGS MUST BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN DENVER COUNTY, COLORADO, AS APPROPRIATE, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU STILL WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PROCEED IN A CLASS OR COLLECTIVE ACTION, AND REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY AND DAMAGES INCLUDED IN THESE TERMS. THIS ARBITRATION AGREEMENT WILL SURVIVE TERMINATION OF YOUR USE OF THE MAXWELL PLATFORM AND YOUR RELATIONSHIP WITH MAXWELL. THIS ARBITRATION AGREEMENT INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1–16 (“FAA”), AND NOT BY STATE LAW. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG.
IF YOU WISH TO OPT OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF WHEN YOU FIRST USE THE MAXWELL PLATFORM, OR SUBMIT THROUGH THE MAXWELL PLATFORM A REQUEST FOR INFORMATION, YOU MUST SEND US A LETTER STATING, “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” AT THE FOLLOWING ADDRESS:
- Maxwell Financial Labs Inc.
- 518 17th Street, Suite 950
- Denver, CO 80202
In the event you opt out of the arbitration provision, you agree to litigate exclusively in the state and federal courts located within Denver County, Colorado, as appropriate, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. These Terms will be governed by the laws of the State of Colorado, without giving effect to any principles of conflicts of laws.
Disclaimer of Warranties
WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE MAXWELL PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY SERVICES, CONTENT, OR ANY PRODUCT OR SERVICE AVAILABLE ON OR PROMOTED THROUGH THE MAXWELL PLATFORM. THE MAXWELL PLATFORM, AND ALL OF THE INFORMATION, PRODUCTS, AND SERVICES MADE AVAILABLE THROUGH THE MAXWELL PLATFORM ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND OUR AFFILIATES DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PORTION OF THE MAXWELL PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY SERVICES, INFORMATION, PRODUCTS, AND SERVICES MADE AVAILABLE THROUGH THE MAXWELL PLATFORM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE AND OUR AFFILIATES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (C) RELATING TO THE SECURITY OF THE MAXWELL PLATFORM; (D) THAT THE CONTENT OF THE MAXWELL PLATFORM IS ACCURATE, COMPLETE, CURRENT, OR RELIABLE; AND (E) THAT MAXWELL PLATFORM WILL OPERATE WITHOUT INTERRUPTION OR ERROR.
MAXWELL DOES NOT ENDORSE, AND IS NOT RESPONSIBLE FOR, STATEMENTS, ADVICE, AND OPINIONS MADE BY ANYONE OTHER THAN AUTHORIZED MAXWELL SPOKESPERSONS. WE DO NOT ENDORSE, AND ARE NOT RESPONSIBLE FOR, ANY STATEMENTS, ADVICE, OR OPINIONS CONTAINED IN USER DATA, THIRD PARTY STATEMENTS, OR ANY OTHER CONTENT PROVIDED BY A THIRD PARTY, AND SUCH STATEMENTS, ADVICE, AND OPINIONS DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE, AND OPINIONS OF MAXWELL. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY, OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING ANYTHING ELSE IN THESE TERMS OR THE RULES, OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO THE USE OF THE MAXWELL PLATFORM BE THE AMOUNT OF $100.
IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE MAXWELL PLATFORM OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE MAXWELL PLATFORM. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATE “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR 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 MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
IF YOU ARE ACCESSING THE MAXWELL PLATFORM FROM NEW JERSEY, YOU (A) ASSUME ALL RISKS OF LOSSES OR DAMAGES RESULTING FROM YOUR USE OF, OR INABILITY TO USE, THE MAXWELL PLATFORM; (B) IRREVOCABLY WAIVE ALL LOSSES OF INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) THAT MAY OCCUR AS A RESULT OF YOUR USE OF THE MAXWELL PLATFORM; (C) EXPRESSLY AGREE TO RELEASE AND DISCHARGE MAXWELL AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION RESULTING, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE MAXWELL PLATFORM; AND (D) YOU VOLUNTARILY GIVE UP OR WAIVE ANY RIGHT THAT YOU MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST MAXWELL FOR LOSSES OR DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR OTHER LEGAL THEORY, INCLUDING ANY CLAIM BASED ON ALLEGED NEGLIGENCE ON THE PART OF MAXWELL AND ITS AFFILIATES AND ITS AND THEIR AGENTS AND EMPLOYEES. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS “WAIVER AND RELEASE” AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY.
You agree to defend, indemnify, and hold harmless Maxwell, its past, present and future affiliates, licensors, advertisers, third party suppliers, other business partners, and service providers, and its and their respective officers, managers, directors, employees, contractors, agents, licensors, suppliers, successors, insurers and assigns (collectively, the “Maxwell Indemnified Parties”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorney’s fees) arising out of or relating to, directly or indirectly, your violation of these Terms or your use of the Maxwell Platform, including, but not limited to: (a) your negligence or misconduct; (b) any User Data you contribute to or submit through the Maxwell Platform, including without limitation information associated with your account; (c) your conduct, including your use of the Maxwell Platform; (d) your connection to the Maxwell Platform; (e) any violation or breach of these Terms; (f) your violation or infringement of any intellectual property, privacy, publicity, confidentiality, proprietary or other rights of any person or entity; (g) your use of the Content ; or (h) your violation of applicable laws (collectively, the “Claims”).
You are solely responsible for defending any such Claims, and for payment of any and all losses, costs, damages or expenses resulting from the foregoing. Maxwell shall have the right, in its sole discretion, to select its own legal counsel to defend the Maxwell Indemnified Parties from any Claims (but by doing so shall not excuse your indemnity obligations) and you shall be solely responsible for the payment of all of Maxwell’s reasonable attorneys’ fees incurred in connection therewith. You shall notify Maxwell immediately if you become aware of any actual or potential claims, suits, actions, allegations, or charges that could affect your or Maxwell’s ability to fully perform their respective duties or to exercise its rights under these Terms. You shall not, without the prior written approval of Maxwell, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for any of the Maxwell Indemnified Parties.
You agree that Maxwell, in its sole discretion, may suspend or terminate your account (or any part thereof) of use of the Maxwell Platform and remove and discard any content within the Maxwell Platform for any reason, including, but not limited to, lack of use or if Maxwell believes you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Maxwell Platform may be referred to appropriate law enforcement authorities. Maxwell may also in its sole discretion and at any time discontinue providing the Maxwell Platform, or any part thereof, with or without notice. You agree that any termination of your access to the Maxwell Platform under any provision of these Terms may be effected without prior notice, and acknowledge and agree that Maxwell may immediately deactivate your account and all related information and files in your account and/or bar any further access to the Maxwell Platform. Further, you agree that Maxwell will not be liable to you or any third party for any termination of your access to the Maxwell Platform.
You may terminate these terms at any time by closing your account and ceasing all access of the Maxwell Platform. Further, if you are a Subscribing User, your account or access to the Maxwell Platform may be terminated in accordance with, or at the direction of the other party to, the applicable Subscription Agreement.
Upon termination or expiration of these Terms for any reason, all rights to the Maxwell Platform granted by Maxwell to you will immediately cease to exist and you shall discontinue all use of the Maxwell Platform.
If you have prepaid for access to the Maxwell Platform for a period of time, and you close your account prior to expiration of such period, we will refund the amount prepaid associated with the duration of such period remaining as of the date you close your account. No refund shall be paid with respect to the month during which you close your account, regardless of the day on which you do so. We will issue the refund within sixty (60) days of when your cancellation request is processed. You are not be entitled to any refund if we terminate access to the Maxwell Platform due to your violation of these Terms or your breach. If you purchased access to the Maxwell Platform at a discounted price and close your account prior to completion of the period of time associated with such discounted price, you will be entitled to a refund determined without reference to such discount. For example, if you paid $1,000.00 for a one-year subscription, and the monthly subscription price was $99.00 at the time of such purchase, if you cancelled during the sixth (6th) month of the year for which you prepaid, we would grant you a refund of $406.00, or $1,000.00 – (6 * $99.00).
You agree that you are solely responsible for your interactions with any other User in connection with your use of the Maxwell Platform and Maxwell will have no liability or responsibility with respect thereto. Maxwell reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User.
You acknowledge that Maxwell may establish additional Rules, including, but not limited to, general practices and limits concerning your use of the Maxwell Platform. You are responsible for ensuring any use of the Maxwell Platform complies with these Terms and any additional Rules applicable to such use.
Maxwell shall not be liable for any delay in performing, or failure to perform its obligations under these Terms or the performance of any portion of the Maxwell Platform resulting from any cause beyond its reasonable control, including, without limitation, acts of God, fire, extreme temperatures, high winds, lightning, strikes, energy interruptions, labor disputes, natural disaster, fire, flood, storm, slide, earthquake, epidemics, power failure, inability to obtain equipment, supplies or other facilities, labor disputes, terrorism, criminal activity, governmental demands or requirements, inclement weather, war, declared or undeclared, or the acts of government (each, a "Force Majeure Event"). If affected by a Force Majeure Event, Maxwell shall be excused from performance to the extent made necessary by such event.
If any part of these Terms are determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.
The section headings and sub-headings contained in the Terms are for convenience only and have no legal or contractual effect.
Copy of Terms
A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
If you have any questions or concerns about the Maxwell Platform, any of our Services, these Terms, or the Rules, including to report potential violations of the Terms or Rules by others, please email us at [email protected]