Strategy Capital LLC
Last Updated: [June 30, 2022]
IMPORTANT NOTICE: THESE TERMS CONTAIN A MANDATORY ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, REQUIRING ANY DISPUTE BETWEEN YOU AND STRATEGY CAPITAL LLC, SUBJECT TO LIMITED EXCEPTIONS, TO BE RESOLVED BY FINAL AND BINDING INDIVIDUAL ARBITRATION AND REQUIRING YOU TO FOREGO JURY TRIALS, CLASS OR COLLECTIVE ACTIONS OR PROCEEDINGS, AND ALL OTHER TYPES OF COURT PROCEEDINGS OF ANY KIND. UNLESS YOU OPT OUT FOLLOWING THE OPT-OUT PROCEDURES IN SECTION I BELOW, YOU WILL BE BOUND BY THIS ARBITRATION AGREEMENT. YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND EXPRESSLY AGREE TO THE MANDATORY ARBITRATION CLAUSE AND CLASS ACTION WAIVER AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
I. Binding Arbitration & Class Action Waiver (“Arbitration Agreement”)
Mandatory Binding Arbitration of Disputes. By agreeing to these Terms, you agree that any dispute, claim, or controversy arising out of or relating to these Terms, or the breach, termination, enforcement, interpretation or validity thereof, or the use of the Website, including those related to the interpretation and scope of this Arbitration Agreement and the arbitrability of the dispute, claim, or controversy (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a court of law in any jurisdiction and not in a class, representative or consolidated action or proceeding, as set forth further below.
You and Strategy Capital agree that the U.S. Federal Arbitration Act (“FAA”) governs the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable, notwithstanding any choice of law or other provision in these Terms. It is the intent of the parties that the FAA and the American Arbitration Association (“AAA”) Rules described below shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the California, without regard to its conflict of laws provisions.
You and Strategy Capital further agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes concerning the interpretation, applicability, enforceability or formation of this Arbitration Agreement. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Notwithstanding this agreement to arbitrate, you and Strategy Capital each retain the right to bring an individual action in small claims court if it qualifies. Each party also retains the right to seek injunctive or other equitable relief in a 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.
Class Action Waiver. YOU AND VALENCIA TECHNOLOGIES AGREE THAT EACH PARTY IS WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. UNLESS BOTH YOU AND VALENCIA TECHNOLOGIES AGREE IN WRITING, YOU AND VALENCIA TECHNOLOGIES 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, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the Arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. 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 entirety of this Arbitration Agreement section shall be null and void, and you and Strategy Capital shall be deemed not to have agreed to arbitrate disputes on a class basis. This Arbitration Agreement shall survive termination of these Terms.
Opt-Out Procedures. You can choose to reject this Arbitration Agreement by sending us a written opt-out notice (“Opt-Out Notice”) within thirty (30) days following the date you first agree to these Terms by mail at One First Street Suite 13 Los Altos, CA 94022 or by email at [email protected]. If mailed, the Opt-Out Notice must be postmarked no later than 30 days following the date you first agree to these Terms. To be effective, the Opt-Out Notice must contain your name, address, and signature. If you opt-out of the Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with Strategy Capital.
Rules & Procedures. The arbitration will be administered by the AAA under its Consumer Arbitration Rules and any supplementary rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms.
A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. You can contact the AAA for more information on how to commence an arbitration proceeding at www.adr.org or 1-800-778-7879. Any arbitration hearings will take place in the county where you live or at another mutually agreed location.
It is the intent of the parties that the AAA Rules and the FAA shall preempt all state laws to the fullest extent permitted by law. If the AAA Rules and the FAA are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of California, without regard to its choice or conflict of law provisions.
Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Strategy Capital will pay for all filing, administration and arbitrator fees and expenses if your Dispute is for $10,000 or less, unless the Arbitrator finds your Dispute frivolous. If Strategy Capital prevails in arbitration, it will pay all of its attorneys’ fees and costs and will not seek to recover them from you.
Changes to Arbitration Agreement. Notwithstanding the provisions of Section XIV, “Changes to Terms” below, if Strategy Capital changes any of the terms of this “Arbitration Agreement” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Last Updated” date above. The written notice must be provided either by mail at One First Street Suite 13 Los Altos, CA 94022 or by email at [email protected]. To be effective, your notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Strategy Capital in accordance with the terms of this “Arbitration Agreement” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
II. Intellectual Property Rights
All information, text, photographs, graphics, images, videos, logos, data, software and other materials including Strategy Capital trademarks, service marks and copyrights (collectively the “Content”) found through the Website are owned or licensed by Strategy Capital and may not be used, copied, broadcast, distributed, uploaded, posted or shared in any way without the express written consent of Strategy Capital.
Strategy Capital expressly reserves all intellectual property rights in the Content. Nothing contained on the Website grants or should be construed as granting any license or right to use the Content for any purpose without the express written consent of Strategy Capital.
III. Prohibited Uses
You may use the Website only for lawful purposes and in accordance with these Terms. You may not use the Website:
- to violate any applicable law or regulation;
- to infringe the rights of any third party, including without limitation, intellectual property, privacy, and contractual rights;
- for any purpose that is unlawful or prohibited by these Terms;
- to cause harm or damage to any person or entity;
- to interfere with the proper operation of the Website; or
- to upload, post or transmit any material that violates any law, infringes on the rights of any third party or contains defamatory, libelous, abusive, threatening, obscene or otherwise objectionable material (as determined by Strategy Capital in its sole discretion).
IV. Third Party Websites
THE MATERIALS AND SERVICES PROVIDED ON THE WEBSITES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
VALENCIA TECHNOLOGIES DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE AVAILABILITY, USE, TIMELINESS, SECURITY, VALIDITY, ACCURACY, OR RELIABILITY OF, OR THE RESULTS OF THE USE OF, OR OTHERWISE RESPECTING, THE CONTENT OF THE WEBSITES.
ANY MATERIAL VIEWED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL, OR USE OF THE WEBSITES. INFORMATION PUBLISHED AT THIS SITE MAY REFER TO PRODUCTS, PROGRAMS OR SERVICES THAT ARE NOT AVAILABLE IN YOUR JURISDICTION.
VII. Limitation of Liability
IN NO EVENT WILL VALENCIA TECHNOLOGIES BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION, OR CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE FAILURE, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE WEBSITES, ANY WEBSITES LINKED TO THE WEBSITES, OR THE MATERIALS OR INFORMATION OR SERVICES CONTAINED AT ANY OR ALL SUCH WEBSITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE MATERIALS, INFORMATION OR SERVICES FROM THE WEBSITES RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, VALENCIA TECHNOLOGIES’ TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, AND CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT OR OTHERWISE, ARISING OUT OF YOUR USE OF OUR WEBSITES, THEIR CONTENT, OR LINKS SHALL NOT EXCEED THE AMOUNT YOU PAID TO ACCESS THIS WEBSITES.
THE LIMITATIONS AND DISCLAIMERS IN THESE TERMS DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING NEW JERSEY LAW.
VIII. Governing Law and Jurisdiction
These Terms and the Privacy Policies shall be construed under the laws of California, which shall control without regard to its conflict of laws provisions. Any action arising out of or relating to these Terms shall be commenced and concluded only in the State of California in the state or federal courts located in Los Angeles County, California.
Strategy Capital, in its sole discretion, may terminate access to the Website for any reason. Upon any termination, discontinuation, or cancellation of the Website, the following provisions of these Terms will survive: Sections I, VI, VII, and VIII.
Strategy Capital’s failure to enforce any portion of the Terms shall not constitute a waiver of any of its rights under these Terms.
Except as set forth in Section I, “Class Action Waiver,” in the event that any provision or part of any provision in these Terms is found to be unenforceable or unlawful for any reason, the unenforceable or unlawful provision or portion thereof shall be severed from these Terms; severance of the unenforceable or unlawful provision or portion thereof shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS VALENCIA TECHNOLOGIES AND ITS PRESENT AND FORMER OFFICERS, EMPLOYEES, SHAREHOLDERS, MEMBERS, DIRECTORS, FRANCHISEES, AGENTS, SERVANTS, REPRESENTATIVES, PARENTS, AFFILIATES, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ANY ACTUAL OR THREATENED CLAIMS, ACTIONS OR DEMANDS, LIABILITIES AND SETTLEMENTS (INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES) RESULTING (OR ALLEGED TO RESULT) FROM YOUR USE OF THE WEBSITES IN ANY MANNER THAT VIOLATES OR IS ALLEGED TO VIOLATE ANY APPLICABLE LAW OR THESE TERMS.
XIII. Delays and Accessibility
The Website may be subject to limitations, delays, failures or other problems associated with the use of the Internet and electronic communications. Strategy Capital is not liable if the Website is unavailable at any time for any reason.
XIV. Changes to Terms
From time to time, we may change these Terms to accommodate new technologies, industry practices, regulatory requirements or for other purposes in our sole discretion. You are advised to check the Terms regularly, as continued use is deemed to be approval of and consent to all such changes.
XV. Changes to Website
We may update the content on the Website from time to time, but its content is not necessarily complete or up-to-date. The Website may be out of date, and Strategy Capital makes no commitment to update the Website.
XVI. Entire Agreement
XVII. Comments and Questions
If you have a comment or question about the Terms, please contact us at [email protected].