The
Coterie Terms of Service
Last Updated: June 21, 2022
Welcome,
and thank you for your interest in The Coterie.Me, Inc. (“The Coterie,” “we,”
or “us”) and our website at www.thecoterie.me, along with our related
websites, networks, applications, mobile applications, and other services
provided by us (collectively, the “Service”). These Terms of Service are
a legally binding contract between you and The Coterie regarding your use of
the Service.
PLEASE
READ THE FOLLOWING TERMS CAREFULLY.
BY
CLICKING
“I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR
USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A
CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING
TERMS AND CONDITIONS, INCLUDING THE COTERIE’S PRIVACY POLICY (TOGETHER, THESE “TERMS”).
If you are not
eligible, or do not agree to the Terms, then you do not have our permission to
use the Service. YOUR USE OF THE SERVICE, AND THE COTERIE’S
PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY THE COTERIE AND BY
YOU TO BE BOUND BY THESE TERMS.
Arbitration NOTICE. Except for certain
kinds of disputes described in Section 19, you agree that
disputes arising under these Terms will be resolved by binding, individual
arbitration, and BY ACCEPTING THESE TERMS, YOU AND THE COTERIE ARE EACH WAIVING
THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR
REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to
assert or defend your rights under this contract (except for matters that may
be taken to small claims court). Your rights will be determined by a NEUTRAL
ARBITRATOR and NOT a judge or jury. (See Section 19.)
1. The Coterie
Service Overview. The Coterie offers innovative financial products, including
asset management, lending, and estate planning, delivered through our mobile
application.
2.
Eligibility.
You must be at least 18 years old to use the Service. By
agreeing to these Terms, you represent and warrant to us that: (a) you are at
least 18 years old; (b) you have not previously been suspended or removed from
the Service; and (c) your registration and your use of the Service is in
compliance with any and all applicable laws and regulations. If you are an
entity, organization, or company, the individual accepting these Terms on your
behalf represents and warrants that they have authority to bind you to these
Terms and you agree to be bound by these Terms.
3.
Authority.
Any individual or entity, including your agent(s), accepting these Terms on your
behalf acknowledges, represents and warrants that: (a) it has full authority to
(i) accept these Terms on your behalf, (ii) make binding representations
through the Service on your behalf, and (iii) act, including by executing
documents, or otherwise interacting with or operating the Service, on your
behalf ; (b) these Terms have been duly authorized and approved by you; and (c)
these Terms constitute a valid and binding obligation between you and The
Coterie.
4.
Additional
Terms. Your use of the Service is subject to all additional terms,
policies, rules, or guidelines applicable to the Service or certain features of
the Service that we may post on or link to from the Service (the “Additional Terms”),
including the following:
·
Coterie Consumer Deposit Account Agreement
All Additional Terms are incorporated by this reference
into, and made a part of, these Terms.
5.
Accounts
and Registration. To access most features of the Service, you must register
for an account. When you register for an account, you may be required to
provide us with some information about yourself, such as your username, email
address, and other contact information. You agree that the information you
provide to us is accurate and that you will keep it accurate and up-to-date at
all times. When you register, you will be asked to provide a password. You are
solely responsible for maintaining the confidentiality of your account and
password, and you accept responsibility for all activities that occur under
your account, including all activities taken by your agent(s). If you believe
that your account is no longer secure, then you must immediately notify us at help@thecoterie.me
6.
General
Payment Terms. Certain features of the Service may require you to pay
fees. Before you pay any fees, you will have an opportunity to review and
accept the fees that you will be charged. All fees are in U.S. Dollars and are
non-refundable.
6.1
Price. The Coterie
reserves the right to determine pricing for the Service. The Coterie will make
reasonable efforts to keep pricing information published on the website up to
date. We encourage you to check our website periodically for current pricing
information. The Coterie may change the fees for any feature of the Service,
including additional fees or charges, if The Coterie gives you advance notice
of changes before they apply. The Coterie, at its sole discretion, may make
promotional offers with different features and different pricing to any of The
Coterie’s customers. These promotional offers, unless made to you, will not
apply to your offer or these Terms.
6.2
Authorization. You authorize The
Coterie to charge all sums for the orders that you make and any level of
Service you select as described in these Terms or published by The Coterie, including
all applicable taxes, to the payment method specified in your account. If you
pay any fees with a credit card, The Coterie may seek pre-authorization of your
credit card account prior to your purchase to verify that the credit card is
valid and has the necessary funds or credit available to cover your purchase.
6.3
Subscription
Service. The
Service may include automatically recurring payments for periodic charges (“Subscription
Service”). If you activate a Subscription Service, you authorize The
Coterie to periodically charge, on a going-forward basis and until cancellation
of either the recurring payments or your account, all accrued sums on or before
the payment due date for the accrued sums. The “Subscription Billing Date”
is the date when you purchase your first subscription to the Service. For
information on any “Subscription Fee”, please see www.thecoterie.me.
Your account will be charged automatically on the Subscription Billing Date all
applicable fees and taxes for the next subscription period. The subscription
will continue unless and until you cancel your subscription or we terminate it.
You must cancel your subscription before it renews in order to avoid billing of
the next periodic Subscription Fee to your account. We will bill the periodic
Subscription Fee to the payment method you provide to us during registration
(or to a different payment method if you change your payment information). You
may cancel the Subscription Service by contacting
us at: help@thecoterie.me.
6.4
Delinquent
Accounts.
The Coterie may suspend or terminate access to the Service, including fee-based
portions of the Service, for any account for which any amount is due but
unpaid. In addition to the amount due for the Service, a delinquent account
will be charged with fees or charges that are incidental to any chargeback or
collection of any the unpaid amount, including collection fees.
7.1
Limited
License.
Subject to your complete and ongoing compliance with these Terms, The Coterie
grants you, solely for your personal, non-commercial use, a limited,
non-exclusive, non-transferable, non-sublicensable, revocable license to: (a)
install and use one object code copy of any mobile application associated with
the Service obtained from a legitimate marketplace (whether installed by you or
pre-installed on your mobile device by the device manufacturer) on a mobile
device that you own or control; and (b) access and use the Service.
7.2
License
Restrictions.
Except and solely to the extent such a restriction is impermissible under
applicable law, you may not: (a) reproduce, distribute, publicly display,
or publicly perform the Service; (b) make modifications to the Service; or (c)
interfere with or circumvent any feature of the Service, including any security
or access control mechanism. If you are prohibited under applicable law from
using the Service, you may not use it.
7.3
Feedback. If you choose to
provide input and suggestions regarding problems with or proposed modifications
or improvements to the Service (“Feedback”), then you hereby grant The
Coterie an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid,
royalty-free right to exploit the Feedback in any manner and for any purpose,
including to improve the Service and create other products and services.
8.
Ownership;
Proprietary Rights. The Service is owned and operated by The
Coterie. The visual interfaces, graphics, design, compilation,
information, data, computer code (including source code or object code),
products, software, services, and all other elements of the Service (“Materials”)
provided by The Coterie are protected by intellectual
property and other laws. All Materials included in the Service are the property
of The Coterie or its third party licensors.
Except as expressly authorized by The Coterie,
you may not make use of the Materials. The Coterie
reserves all rights to the Materials not granted expressly in these Terms.
9. Confidentiality.
You agree that you will maintain in strict confidence the confidentiality of,
and not disclose to any third party, all non-public information disclosed by
The Coterie to you or that you otherwise may access through the Service
including, without limitation, all information relating to investment offerings
provided through the Service (“Confidential Information”). You agree
not to use any Confidential Information for any purpose except to exercise your
rights under these Terms and not to disclose any Confidential Information to
third parties. You shall not reverse engineer, disassemble or decompile any
prototypes, software or other tangible objects which embody Confidential
Information. You agree to take reasonable measures to protect the secrecy of
and avoid disclosure and unauthorized use of the Confidential Information
provided to you. You shall not make any copies of the Confidential Information
unless previously approved in writing by The Coterie.
10.
Third
Party Terms
10.1
Third
Party Services and Linked Websites. The Coterie may provide tools through
the Service that enable you to export information, including User Content, to
third party services. By using one of these tools, you agree that The Coterie
may transfer that information to the applicable third party service. Third
party services are not under The Coterie’s control, and, to the fullest extent
permitted by law, The Coterie is not responsible for any third party service’s
use of your exported information. The Service may also contain links to third
party websites. Linked websites are not under The Coterie’s control, and The
Coterie is not responsible for their content.
10.2
Third
Party Software.
The Service may include or incorporate third party software components that are
generally available free of charge under licenses granting recipients broad
rights to copy, modify, and distribute those components (“Third Party
Components”). Although the Service is provided to you subject to these
Terms, nothing in these Terms prevents, restricts, or is intended to prevent or
restrict you from obtaining Third Party Components under the applicable third
party licenses or to limit your use of Third Party Components under those third
party licenses.
10.3
Links
to Third-Party Web Sites. We may provide links to third-party web sites and
their related content for your convenience. Such content is for informational
purposes only, and you should not construe any such information or other
materials as legal, tax, investment, financial or other advice. We have no
control over such third-party sites or of their content, and we do not adopt or
endorse any such third-party content. We disclaim any and all liability for (i)
the content on any such sites, including any advertising, products or other
materials that appear on or are made available through such sites and (ii) any
loss or damages incurred in connection therewith.
YOUR
USE OF THIRD-PARTY WEB SITES AND OF THEIR CONTENT, INCLUDING WITHOUT
LIMITATION, YOUR USE OF ANY INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER
MATERIALS ON OR MADE AVAILABLE THROUGH SUCH SITES, IS AT YOUR OWN RISK AND IS
SUBJECT TO THE TERMS OF USE OF SUCH SITES.
11.
User
Content
11.1
User
Content Generally.
Certain features of the Service may permit users to upload content to the
Service, including financial information such as brokerage and bank accounts,
data, text, and other types of works (“User Content”). You retain any
copyright and other proprietary rights that you may hold in the User Content
that you post to the Service.
11.2
Limited
License Grant to The Coterie. By providing User Content to or via the
Service, you grant The Coterie a worldwide, non-exclusive, royalty-free, fully
paid right and license (with the right to sublicense) to host, store, transfer,
display, perform, reproduce, modify for the purpose of formatting for display,
and distribute your User Content, in whole or in part, in any media formats and
through any media channels now known or hereafter developed to provide the
Service to you.
11.3
User
Content Representations and Warranties. The Coterie disclaims any and all
liability in connection with User Content. You are solely responsible for your
User Content and the consequences of providing User Content via the Service. By
providing User Content via the Service, you affirm, represent, and warrant
that:
a.
you
are the creator and owner of the User Content, or have the necessary licenses,
rights, consents, and permissions to authorize The Coterie and users of the
Service to use and distribute your User Content as necessary to exercise the
licenses granted by you in this Section, in the manner contemplated by The
Coterie, the Service, and these Terms; and
b.
your
User Content, and the use of your User Content as contemplated by these Terms,
does not and will not: (i) infringe, violate, or misappropriate any third party
right, including any copyright, trademark, patent, trade secret, moral right,
privacy right, right of publicity, or any other intellectual property or
proprietary right; (ii) slander, defame, libel, or invade the right of privacy,
publicity or other property rights of any other person; or (iii) cause The
Coterie to violate any law or regulation.
11.4
Monitoring
Content.
The Coterie does not control and does not have any obligation to monitor: (a)
User Content; (b) any content made available by third parties; or (c) the use
of the Service by its users. You acknowledge and agree that The Coterie
reserves the right to, and may from time to time, monitor any and all
information transmitted or received through the Service for operational and
other purposes. If at any time The Coterie chooses to monitor the content, The
Coterie still assumes no responsibility or liability for content or any loss or
damage incurred as a result of the use of content. During monitoring,
information may be examined, recorded, copied, and used in accordance with our Privacy
Policy.
12.1
Text
Messaging.
The Coterie and those acting on our behalf may send you text (SMS) messages at
the phone number you provide us. These messages may include operational
messages about your use of the Service, as well as marketing messages. You may
opt out of receiving marketing text messages at any time by sending an email to
help@thecoterie.me indicating that
you no longer wish to receive marketing texts along with the phone number of
the mobile device receiving the texts. You may continue to receive text
messages for a short period while we process your request, and you may also
receive text messages confirming the receipt of your opt-out request. Operational
text messages are essential to the Service. If you do not wish to receive
operational text messages from us, do not use the Service. Text messages may be
sent using an automatic telephone dialing system. Your agreement to receive marketing
text messages is not a condition of any purchase or use of the Service. Standard
data and message rates may apply whenever you send or receive such messages, as
specified by your carrier.
12.1
Push
Notifications.
When you install our app on your mobile device, you agree to receive push
notifications, which are messages an app sends you on your mobile device when
the app is not on. You can turn off notifications by visiting your mobile
device’s “settings” page.
12.2
Email. We may send you
emails concerning out products and services, as well as those of third parties.
You may opt out of promotional emails by following the unsubscribe instructions
in the promotional email itself.
13.
Prohibited
Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
a.
use
the Service for any illegal purpose or in violation of any local, state,
national, or international law;
b.
violate,
or encourage others to violate, any right of a third party, including by
infringing or misappropriating any third party intellectual property right;
c.
interfere
with security-related features of the Service, including by: (i) disabling or
circumventing features that prevent or limit use or copying of any content; or
(ii) reverse engineering or otherwise attempting to discover the source code of
any portion of the Service except to the extent that the activity is expressly
permitted by applicable law;
d.
interfere
with the operation of the Service or any user’s enjoyment of the Service,
including by: (i) uploading or otherwise disseminating any virus, adware,
spyware, worm, or other malicious code; (ii) making any unsolicited offer or
advertisement to another user of the Service; (iii) collecting personal
information about another user or third party without consent; or (iv)
interfering with or disrupting any network, equipment, or server connected to
or used to provide the Service;
e.
perform
any fraudulent activity including impersonating any person or entity, claiming
a false affiliation, accessing any other Service account without permission, or
falsifying your age or date of birth;
f.
sell
or otherwise transfer the access granted under these Terms or any Materials (as
defined in Section 8) or any right or
ability to view, access, or use any Materials; or
g.
attempt
to do any of the acts described in this Section 13 or assist or permit any
person in engaging in any of the acts described in this Section 13.
14. Modification of
these Terms. We reserve the right to change these Terms on a
going-forward basis at any time upon 7 days’ notice. Please check these Terms
periodically for changes. If a change to these Terms materially modifies your
rights or obligations, we may require that you accept the modified Terms in
order to continue to use the Service. Material modifications are effective upon
the date specified in the notice to you or the date of your acceptance of the
modified Terms, whichever is earlier. Immaterial modifications are effective
upon publication. Except as expressly permitted in this Section 14,
these Terms may be amended only by a written agreement signed by authorized
representatives of the parties to these Terms. Disputes arising under these
Terms will be resolved in accordance with the version of these Terms that was
in effect at the time the dispute arose.
15.
Term,
Termination and Modification
of the Service
15.1
Term. These Terms are
effective beginning when you accept the Terms or first download, install,
access, or use the Service, and ending when terminated as described in Section 15.2.
15.2
Termination. If you violate
any provision of these Terms, your authorization to access the Service and
these Terms automatically terminate. In addition, The Coterie may, at its sole
discretion, terminate these Terms or your account on the Service, or suspend or
terminate your access to the Service, at any time for any reason or no reason,
with or without notice. You may terminate your account and these Terms at any
time by contacting customer service at help@thecoterie.me.
15.3
Effect
of Termination. Upon
termination of these Terms: (a) your license rights will terminate and you must
immediately cease all use of the Service; (b) you will no longer be authorized
to access your account or the Service; (c) you must pay The Coterie any unpaid
amount that was due prior to termination; and (d) all
payment obligations accrued prior to termination and Sections 7.3, 8, 15.3, 16, 17, 18, 19 and 20 will survive.
15.4
Modification
of the Service.
The Coterie reserves the right to modify or discontinue the Service at any time
(including by limiting or discontinuing certain features of the Service),
temporarily or permanently, without notice to you. The Coterie will have no
liability for any change to the Service or any suspension or termination of
your access to or use of the Service.
16.
Indemnity. To
the fullest extent permitted by law, you are responsible for your use of the
Service, and you will defend and indemnify The Coterie
and its officers, directors, employees, consultants, affiliates, subsidiaries
and agents (together, the “The Coterie
Entities”) from and against every claim brought by a third party, and any
related liability, damage, loss, and expense, including reasonable attorneys’
fees and costs, arising out of or connected with: (a) your unauthorized use of,
or misuse of, the Service; (b) your violation of any portion of these Terms,
any representation, warranty, or agreement referenced in these Terms, or any
applicable law or regulation; (c) your violation of any third party right,
including any intellectual property right or publicity, confidentiality, other
property, or privacy right; or (d) any dispute or issue between you and any
third party. We reserve the right, at our own expense, to assume the exclusive
defense and control of any matter otherwise subject to indemnification by you
(without limiting your indemnification obligations with respect to that
matter), and in that case, you agree to cooperate with our defense of those
claims.
THE SERVICE AND ALL MATERIALS AND CONTENT
AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE”
BASIS. THE COTERIE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE
THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT;
AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE
COTERIE DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY
MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED,
SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS,
AND THE COTERIE DOES NOT WARRANT THAT ANY OF
THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR
WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR THE COTERIE ENTITIES OR ANY
MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY
REGARDING ANY OF THE COTERIE ENTITIES OR THE
SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT
RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING
WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION
OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE
FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE
USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER
CONTENT.
THE LIMITATIONS, EXCLUSIONS AND
DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. The
Coterie does not disclaim any warranty or other right that The Coterie is
prohibited from disclaiming under applicable law.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN
NO EVENT WILL THE COTERIE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES
FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR
RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE
SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON
WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL
THEORY, AND WHETHER OR NOT ANY THE COTERIE ENTITY HAS BEEN INFORMED OF THE
POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 19.5 AND TO THE
FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE COTERIE ENTITIES
TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE
ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT,
TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID
TO THE COTERIE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO
THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT
PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION
OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER
THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE
BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND
INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS
SECTION 18 WILL APPLY EVEN
IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
19.1
Generally. In the interest
of resolving disputes between you and The Coterie in the most expedient and
cost effective manner, and except as described in Section 19.2 and 19.3, you and The
Coterie agree that every dispute arising in connection with these Terms will be
resolved by binding arbitration. Arbitration is less formal than a lawsuit in
court. Arbitration uses a neutral arbitrator instead of a judge or jury, may
allow for more limited discovery than in court, and can be subject to very
limited review by courts. Arbitrators can award the same damages and relief
that a court can award. This agreement to arbitrate disputes includes all
claims arising out of or relating to any aspect of these Terms, whether based
in contract, tort, statute, fraud, misrepresentation, or any other legal
theory, and regardless of whether a claim arises during or after the
termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO
THESE TERMS, YOU AND THE COTERIE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY
OR TO PARTICIPATE IN A CLASS ACTION.
19.2
Exceptions. Despite the
provisions of Section 19.1, nothing in these
Terms will be deemed to waive, preclude, or otherwise limit the right of either
party to: (a) bring an individual action in small claims court; (b) pursue an
enforcement action through the applicable federal, state, or local agency if
that action is available; (c) seek injunctive relief in a court of law in aid
of arbitration; or (d) to file suit in a court of law to address an
intellectual property infringement claim.
19.3
Opt-Out. If you do not wish
to resolve disputes by binding arbitration, you may opt out of the provisions
of this Section 19 within 30 days
after the date that you agree to these Terms by sending a letter to The
Coterie.Me, Inc., Attention: Legal Department – Arbitration Opt-Out, 1448
Hamilton Avenue, Palo Alto, California 94301 that specifies: your full legal
name, the email address associated with your account on the Service,, and a
statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once
The Coterie receives your Opt-Out Notice, this Section 19 will be void and any
action arising out of these Terms will be resolved as set forth in Section 20.2. The remaining
provisions of these Terms will not be affected by your Opt-Out Notice.
19.4
Arbitrator. Any arbitration
between you and The Coterie will be settled under the Federal Arbitration Act
and administered by the American Arbitration Association (“AAA”) under
its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified
by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the
AAA at 1-800-778-7879, or by contacting The Coterie. The arbitrator has
exclusive authority to resolve any dispute relating to the interpretation,
applicability, or enforceability of this binding arbitration agreement.
19.5
Notice
of Arbitration; Process. A party who intends to seek arbitration must first
send a written notice of the dispute to the other party by certified U.S. Mail
or by Federal Express (signature required) or, only if that other party has not
provided a current physical address, then by electronic mail (“Notice of
Arbitration”). The Coterie’s address for Notice is: The Coterie.Me, Inc., 1448
Hamilton Avenue, Palo Alto, California 94301. The Notice of Arbitration must:
(a) describe the nature and basis of the claim or dispute; and (b) set forth
the specific relief sought (“Demand”). The parties will make good faith
efforts to resolve the claim directly, but if the parties do not reach an
agreement to do so within 30 days after the Notice of Arbitration is received,
you or The Coterie may commence an arbitration proceeding. All arbitration
proceedings between the parties will be confidential unless otherwise agreed by
the parties in writing. During the arbitration, the amount of any settlement
offer made by you or The Coterie must not be disclosed to the arbitrator until
after the arbitrator makes a final decision and award, if any. If the
arbitrator awards you an amount higher than the last written settlement amount
offered by The Coterie in settlement of the dispute prior to the award, The
Coterie will pay to you the higher of: (i) the amount awarded by the
arbitrator; or (ii) $10,000.
19.6
Fees. If you commence
arbitration in accordance with these Terms, The Coterie will reimburse you for
your payment of the filing fee, unless your claim is for more than $10,000, in
which case the payment of any fees will be decided by the AAA Rules. Any
arbitration hearing will take place at a location to be agreed upon in Santa
Clara County, CA, but if the claim is for $10,000 or less, you may choose
whether the arbitration will be conducted: (a) solely on the basis of documents
submitted to the arbitrator; (b) through a non-appearance based telephone
hearing; or (c) by an in-person hearing as established by the AAA Rules in the
county (or parish) of your billing address. If the arbitrator finds that either
the substance of your claim or the relief sought in the Demand is frivolous or
brought for an improper purpose (as measured by the standards set forth in
Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be
governed by the AAA Rules. In that case, you agree to reimburse The Coterie for
all monies previously disbursed by it that are otherwise your obligation to pay
under the AAA Rules. Regardless of the manner in which the arbitration is
conducted, the arbitrator must issue a reasoned written decision sufficient to
explain the essential findings and conclusions on which the decision and award,
if any, are based. The arbitrator may make rulings and resolve disputes as to
the payment and reimbursement of fees or expenses at any time during the
proceeding and upon request from either party made within 14 days of the
arbitrator’s ruling on the merits.
19.7
No
Class Actions.
YOU AND THE COTERIE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN
YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and The Coterie
agree otherwise, the arbitrator may not consolidate more than one person’s
claims, and may not otherwise preside over any form of a representative or
class proceeding.
19.8
Modifications
to this Arbitration Provision. If The Coterie makes any future change
to this arbitration provision, other than a change to The Coterie’s address for
Notice of Arbitration, you may reject the change by sending us written notice
within 30 days of the change to The Coterie’s address for Notice of
Arbitration, in which case your account with The Coterie will be immediately
terminated and this arbitration provision, as in effect immediately prior to
the changes you rejected will survive.
19.9
Enforceability. If Section 19.7 or the entirety
of this Section 19 is found to be
unenforceable, or if The Coterie receives an Opt-Out Notice from you, then the
entirety of this Section 19 will be null and
void and, in that case, the exclusive jurisdiction and venue described in
Section 20.2 will govern any
action arising out of or related to these Terms.
20.1
General Terms. These Terms,
together with the Privacy Policy and any other agreements expressly
incorporated by reference into these Terms, are the entire and exclusive
understanding and agreement between you and The Coterie regarding your use of
the Service. You may not assign or transfer these Terms or your rights under
these Terms, in whole or in part, by operation of law or otherwise, without our
prior written consent. We may assign these Terms at any time without notice or
consent. The failure to require performance of any provision will not affect
our right to require performance at any other time after that, nor will a
waiver by us of any breach or default of these Terms, or any provision of these
Terms, be a waiver of any subsequent breach or default or a waiver of the
provision itself. Use of section headers in these Terms is for convenience only
and will not have any impact on the interpretation of any provision. Throughout
these Terms the use of the word “including” means “including but not limited to”.
If any part of these Terms is held to be invalid or unenforceable, the
unenforceable part will be given effect to the greatest extent possible, and
the remaining parts will remain in full force and effect.
20.2
Governing
Law.
These Terms are governed by the laws of the State of California without regard
to conflict of law principles. You and The Coterie submit to the personal and
exclusive jurisdiction of the state courts and federal courts located within Santa
Clara County, CA for resolution of any lawsuit or court proceeding permitted
under these Terms. We operate the Service from our offices in California, and
we make no representation that Materials included in the Service are
appropriate or available for use in other locations.
20.3
Privacy
Policy.
Please read the The Coterie Privacy Policy carefully for
information relating to our collection, use, storage, disclosure of your personal
information. The The Coterie Privacy Policy is incorporated by this reference
into, and made a part of, these Terms.
20.4
Consent
to Electronic Communications. By using the Service, you consent to
receiving certain electronic communications from us as further described in our
Privacy Policy. Please read our Privacy Policy to learn more about our
electronic communications practices. You agree that any notices, agreements,
disclosures, or other communications that we send to you electronically will
satisfy any legal communication requirements, including that those
communications be in writing.
20.5
Contact Information. The Service is
offered by The Coterie.Me, Inc., located at 1448 Hamilton Avenue, Palo Alto,
California 94301. You may contact us by sending correspondence to that address
or by emailing us at help@thecoterie.me.
20.6
Notice
to California Residents. If you are a California resident, under California
Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the
Division of Consumer Services of the California Department of Consumer Affairs
in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834,
or by telephone at (800) 952-5210 in order to resolve a complaint regarding the
Service or to receive further information regarding use of the Service.
20.7
No
Support.
We are under no obligation to provide support for the Service. In instances
where we may offer support, the support will be subject to published policies.
20.8
International
Use.
The Service is intended for visitors located within the United States. We make
no representation that the Service is appropriate or available for use outside
of the United States. Access to the Service from countries or territories or by
individuals where such access is illegal is prohibited.
21. Notice Regarding
Apple. This Section 21
only applies to the extent you are using our mobile application on an iOS device.
You acknowledge that these Terms are between you and The Coterie only, not with Apple
Inc. (“Apple”),
and Apple is not responsible for the Service or the content
thereof. Apple has no obligation to furnish any
maintenance and support services with respect to
the Service. If the Service fails to conform to any
applicable warranty, you may notify Apple and Apple will refund any applicable
purchase price for the mobile application to you; and, to the maximum extent
permitted by applicable law, Apple has no other warranty obligation with
respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the
Service or your possession and/or use of the
Service, including: (a) product liability
claims; (b) any claim that the Service fails to conform to any applicable
legal or regulatory requirement; or (c) claims arising under consumer
protection or similar legislation. Apple is not responsible for the
investigation, defense, settlement and discharge of
any third party claim that the Service and/or your
possession and use of the Service
infringe a third party’s intellectual property rights. You agree to comply with
any applicable third party terms when using the Service. Apple and Apple’s subsidiaries
are third party beneficiaries of these Terms, and upon your acceptance of these
Terms, Apple will have the right (and will be deemed to have accepted the
right) to enforce these Terms against you as a third party beneficiary of these
Terms. You hereby represent and warrant that: (i) you are not located in a
country that is subject to a U.S. Government embargo, or that has been
designated by the U.S. Government as a “terrorist supporting” country; and
(ii) you are not listed on any U.S. Government list of prohibited or
restricted parties.