Last updated: December 3, 2018
1. Acceptance of the Terms of Service
These Terms of Service (“Terms” or “Agreement”) set forth the legally binding terms and conditions between you, and your affiliates, if applicable (collectively “you” and “your”), and Deer Isle Group, LLC (“DI Group”) and those of its subsidiaries and affiliates, including Deer Isle Financial LLC (“DI Financial”) and Deer Isle Capital LLC (“DI Capital”) (DI Group, DI Financial and DI Capital and any future subsidiary or affiliate, collectively, “Deer Isle”, “we”, “us”, “our”, and each a “Deer Isle Entity”), for the use of the services provided by Deer Isle (the “Services”) and the website, located at www.deerislegroup.com and its subdomains (the “Site”).
Use of the Site or the Services, including by simply viewing any partial or complete content or information contained on the Site or about the Services provided by Deer Isle (“Content”), constitutes your acceptance of and agreement of these Terms. By using the Site and the Services, you represent and warrant that you have the right, authority, and capacity to enter into these Terms and to abide by all of the terms and conditions set forth herein. If you do not agree with these Terms, you must immediately cease using the Site and the Services.
These Terms are in addition to any other agreements between you and Deer Isle, including any services or financial advisor agreements, and any other agreements that govern your use of products, services, content, tools, and information available on or pursuant to the Site (collectively, “Separate Agreements”). This Agreement does not alter in any way the terms or conditions of any Separate Agreement you may have with a Deer Isle Entity. Separate Agreements signed by you shall detail relevant financial terms and termination provisions. In the event of a conflict between these Terms and any signed Separate Agreement, the terms of the Separate Agreement will govern.
2. Changes to the Terms of Service
Deer Isle reserves the right to amend these Terms, the Site, and the Services from time to time by posting changes on the Site. You acknowledge that continued use of the Services signifies acceptance of any revised Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and the Services. If Deer Isle modifies these Terms, it will update the “Last Updated Date” at the top of these Terms.
3. Accessing the Site and Profile Security
We reserve the right to withdraw or amend the Site, and any service or material we provide on the Site, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Site, or the entire Site, to certain users.
If you are under the age of 16, you may not use the Site or the Services. You must be at least 18 years of age, or the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years of age, to use the Services. If you do not qualify under these Terms, you must not use the Site or the Services.
Any use of the Services is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.
In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration or subscription forms on the Site (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information that you provide to Deer Isle, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to Deer Isle.
Your Registration Data will be used by Deer Isle to create an appropriate profile (“Profile”) based on your classification as further explained in these Terms. You are responsible for any activities or actions taken under your Profile. You should immediately notify Deer Isle of any unauthorized use of your Profile. Deer Isle reserves the right, at any time and without prior notice, to remove or disable access to any Profile for any reason, in its sole discretion.
To the extent that Deer Isle is transmitting your information pursuant to one or more of the Services, you authorize Deer Isle to transmit your information. Deer Isle does not assume any liability for the transmitted information unless Deer Isle has expressly assumed such liability under a Separate Agreement with you. To the extent any of the Services generate investment interest in a particular investment opportunity, you agree that all activity to facilitate any investment will occur pursuant to a Separate Agreement with DI Capital or another licensed broker-dealer and you will provide all required due diligence and suitability information that is required under broker-dealer regulations and other Applicable Law (as defined herein).
4. Use of Brokerage Services
The Services provided by Deer Isle may be facilitated by its affiliates. In particular, DI Capital, a registered broker-dealer with the U.S. Securities and Exchange Commission (“SEC”) and a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), or another licensed broker-dealer will facilitate securities transactions. You acknowledge that DI Capital and other third parties, including authorized agents and licensees, may act as a broker, placement agent, solicitor or introducer (or in a similar capacity) for any of the Capital Seekers (as defined below) and may be separately compensated in such capacity (generally through a fixed amount or, if such entity is a licensed broker-dealer, a fee based on a percentage of certain investments into the applicable Capital Seekers). Neither DI Group nor DI Financial shall be held responsible for the activities of DI Capital or any other entity.
Although the Site may provide data, information or content provided by other parties relating to investment strategies and/or opportunities to buy and/or sell securities, you should not construe any such content as tax, legal, financial, or investment advice. Unless we provide you with specific advice that is clearly identified as an individualized recommendation specifically addressed to you, (which is not expected to take place), you represent that any decision to invest is based solely on your consideration of the risks involving a particular security or those of a third-party (i.e. your personal financial advisor) and is made at your own risk. All investments involve a degree of risk, and unless we provide you with individualized recommendation addressed to you (which is not expected to take place) you acknowledge and agree that you are solely responsible for determining the suitability of an investment or strategy and accept the risks associated with such decisions that may include the risk of complete loss of your investment. You understand and acknowledge that past performance of any Capital Seeker is not indicative of future performance. You agree and acknowledge that you are solely responsible for conducting legal, accounting or due diligence review on any of the Capital Seekers listed on the Site. You are advised to consult with a licensed legal professional and investment advisor for any legal, tax, insurance, or investment advice.
5. User Classification
Upon opening a Profile, you will be asked to specify whether you are a “Capital Seeker” or an “Investor”.
A Capital Seeker is a private company seeking investments and potentially offering securities through a broker-dealer, such as DI Capital. All Capital Seekers must execute a Separate Agreement with Deer Isle and provide the required due diligence documents according to such Separate Agreement prior to being listed as a Capital Seeker on the Site.
An Investor is an individual or entity who has created a Profile with the intent to invest in a Capital Seeker. Certain of the Services are available only to Investors that are “Accredited Investors” (as defined under Rule 501 of SEC Regulation D promulgates under the Securities Act of 1933, as amended). Under current U.S. securities laws, you are an Accredited Investor if you fall under one of the following categories:
- a natural person who has individual net worth, or joint net worth with the person’s spouse (including all assets, such as cash, stock, personal property and real estate based on the fair market value of such property MINUS all debts and liabilities other than a mortgage or other debt secured by your primary residence), that exceeds $1 million at the time of the purchase, excluding the value of your primary residence;
- a natural person with income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year;
- a bank, insurance company, registered investment company, business development company, or small business investment company;
- an employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5 million;
- a charitable organization, corporation, limited liability company or partnership with assets exceeding $5 million;
- a director, executive officer, or general partner of the issuing Capital Seeker;
- a business in which all the equity owners are Accredited Investors; or
- a trust with assets in excess of $5 million, not formed to acquire the securities offered, whose purchases a sophisticated person makes.
You acknowledge and agree that the foregoing provisions shall be automatically amended to match the definition of “accredited investor” pursuant to Regulation D if such definition is amended after the date hereof.
If you are not an Accredited Investor, you will only be permitted to log on to the Site and access certain Content on the Site which is made publicly available and expressly excludes any offers for the sale of securities. You are prohibited from investing in any offering on the Site or reviewing any offer or solicitation for the sale of securities.
6. User Content
User Content in General
You are responsible for your User Content uploaded to the Site. In publishing User Content to the Site, you represent and warrant that you have all rights necessary to grant the foregoing license, that neither the permission nor consent of any other person or entity is required to enable Deer Isle to legally use the User Content in accordance with this license; that all User Content provided to the Site by you or anyone else using your Profile complies with all Applicable Laws, rules and regulations, including all privacy laws in each jurisdiction in which you operate; and that Deer Isle’s use of the User Content in accordance with this license will not violate or infringe upon the rights of any person or entity. You agree that all of your User Content will be accurate, truthful, not misleading in any sense whether by omission or commission, to the extent any information is given about performance or possible future activities be supported by models and other information, and be regulatory as well as legally compliant. YOU AGREE TO INDEMNIFY, RELEASE, AND HOLD DEER ISLE, TO THE FULLEST DEGREE POSSIBLE, HARMLESS FROM ANY AND ALL LIABILITY, CLAIMS, ACTIONS, LOSS, HARM, DAMAGE, INJURY, COST OR EXPENSE ARISING OUT OF ANY USER CONTENT THAT YOU POST.
Deer Isle makes no representations or warranty that the information contained in the Services are accurate, reliable or up-to-date or complete. Deer Isle or any third-party providing Content through the Site, including Capital Seekers and Investors, cannot guarantee the accuracy of the underlying Content.
Furthermore, by contributing, amending and/or verifying data and information, you acknowledge that Deer Isle may use this data and information across its products.
In contributing such data and information, you warrant that:
- The data and information does not breach any agreement, any intellectual property rights or any law to which it is subject; and
- The data and information is accurate.
Deer Isle is not responsible for, and does not endorse, Content posted by any non-Deer Isle Entity. Accordingly, Deer Isle may not be held liable, directly or indirectly, for any loss or damage caused in connection with any Content posted by any non-Deer Isle Entity.
Capital Seeker Content
Certain of the Services allow Capital Seekers to publish information about their history, business and products. Deer Isle reserves the right to remove any content at its sole discretion that may be deemed to be a general public solicitation for the sale of securities. Capital Seekers are advised to consult legal counsel before engaging in any securities offering. Each Capital Seeker is solely responsible for the material such Capital Seeker provides to be posted on the Site and represents that (i) it has complied in all material respects with all applicable rules and regulations and (ii) such information will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make such statements not misleading in light of the circumstances under which they are made. Capital Seekers should note that some of the Content provided on the Site is viewable by the general public.
Investors should conduct their own investigation and analysis of the Capital Seekers and the User Content provided by them. Investors should be aware that Deer Isle cannot guarantee that Capital Seekers will use the proceeds of their offerings in accordance with the Capital Seeker’s stated purpose.
Deer Isle does not undertake any obligation to update the Capital Seekers’ information on the Site or to provide each Investor with additional evaluation materials regarding the Capital Seekers.
7. Content Standards and Prohibited Use
You may not use the Site or the Services to, nor allow any third‐party to use the Site or the Services to:
- Generate or facilitate unsolicited commercial email (spam). Such prohibited activity includes, but is not limited to:
- sending communications or email in violation of the CAN‐SPAM Act or any other applicable anti‐spam law or regulation;
- imitating or impersonating Deer Isle, or any Deer Isle Entity, another person or his, her or its email address, or creating false accounts for the purpose of sending spam;
- data mining or harvesting any web property (including any External‐Facing Service) to find email addresses or other user account information;
- sending unauthorized mail via open, third‐party servers;
- sending email to users who have requested to be removed from a mailing list;
- selling to, exchanging with, sharing with or distributing to a third-party personal information, including the email addresses of any person without such person’s knowing and continued consent to such disclosure; or
- sending unsolicited emails to significant numbers of email addresses belonging to individuals and/or entities with whom you have no preexisting relationship;
- Conduct or forward multi‐level marketing, such as pyramid schemes and the like;
- Generate or facilitate SMS, MMS, or other text messages or push notifications in violation of the Telephone Consumer Protection Act, the Do‐Not‐Call Implementation Act, or any other Applicable Law, including anti‐spam, telemarketing or telephone consumer protection laws or regulations;
- Use the Services in any manner that violates any applicable industry standards, third party policies or requirements that Deer Isle may communicate to its customers, Capital Seekers or Investors;
- Transmit material that may be harmful to minors;
- Illegally transmit another’s intellectual property or other proprietary information without such owner’s or licensor’s permission;
- Impersonate another person, entity or Deer Isle (via the use of an email address or otherwise) or otherwise misrepresent themselves or the source of any email;
- Violate the rights (such as rights of privacy or publicity) of others;
- Promote, facilitate or encourage illegal activity;
- Interfere with other users’ enjoyment of a service;
- Engage in activity in connection with illegal peer‐to‐peer file sharing;
- Engage in or promote gambling, or run a gambling operation;
- “Mine” bitcoins and other cryptocurrencies;
- Sell, distribute or export illegal or prescription drugs or other controlled substances or paraphernalia;
- Access (including through any interfaces provided with a service), any Deer Isle Entity product or service, or other service or website, in a manner that violates the terms for use of or access to such service or website;
- Operate an “open proxy” or any other form of Internet proxy service that is capable of forwarding requests to any end user or third party‐supplied Internet host;
- Perform significant load or security testing without first obtaining Deer Isle’s written consent;
- Remove any copyright, trademark or other proprietary rights notices contained in or on the service or reformat or frame any portion of the web pages that are part of the service’s administration display;
- Access a third-party web property for the purposes of web scraping, web crawling, web monitoring, or other similar activity through a web client that does not take commercially reasonable efforts to identify itself via a unique User-Agent string describing the purpose of the web client and obey the robot’s exclusion standard (also known as the robots.txt standard), including the crawl‐delay directive;
- Use the Site or Services in any manner that would disparage Deer Isle; or
- Use the Einstein Bot feature to communicate with any third party without clearly communicating that the individual is speaking with a bot
Furthermore, you may not, and may not allow any third party, to use the Site or the Services to display, store, process or transmit, or permit use of the Services to display, store, process or transmit:
- Material that infringes or misappropriates a third party’s intellectual property or proprietary right;
- Hate-related or violent material, and/or material advocating discrimination against individuals or groups;
- Obscene, excessively profane material or otherwise objectionable material;
- Material advocating or advancing criminal hacking, cracking, or phishing;
- Material related to illegal drugs or paraphernalia;
- Malicious material;
- Unlawful software;
- Malicious code, such as viruses, worms, time bombs, Trojan horses and other harmful or malicious files, scripts, agents or programs;
- Material that violates, encourages or furthers conduct that would violate any Applicable Laws, including any criminal laws, or any third‐party rights, including SEC, FINRA, publicity or privacy rights; or
- Material that is promotional in nature, including solicitations for funds or business, without the prior written authorization of Deer Isle.
You may not and hereby agree that you will not without Deer Isle’s prior written consent: (1) use the Site or the Services in any manner or for any purpose other than those expressly specified in these Terms; (2) alter, reverse engineer, decompose, disassemble or otherwise seek to duplicate the Site or Services (or attempt to do any of the foregoing); or (3) rent, lease, lend, sell, sublicense, trade, assign, give or permit access to, disclose, transmit, use on behalf of, furnish, copy, modify, or distribute the Services or the Content or any part of the Site to any third party not expressly permitted in these Terms including but not limited to, any of your affiliates or any other department.
You will not copy, modify, duplicate, distribute (in any manner including hard copy, electronic or any other form) the Site or the Services in whole or in part, commercially to exploit or re-sell the same, and will not disclose or offer to disclose any Content received by you through your use of the Services to any third party.
You agree not to access, or attempt to access, monitor or copy any of the Services through any means (except as expressly permitted under these Terms or under signed Separate Agreements) including automated software of other automated means (including, but not limited to, the use of agents, robots, spiders, scripts or web crawlers). In addition, you agree that you will not interfere or attempt to interfere with the proper working of Services or any activities conducted by Deer Isle including, take or attempt any action, that in the sole discretion of Deer Isle imposes or may impose an unreasonable or disproportionally large load or burden on the Deer Isle infrastructure.
You may not use the Site or any Content contained therein, in whole or in part in any manner that either competes or is intended to compete with Deer Isle or its affiliates, including without limitation, any distribution of any Content or a derivative work based thereon or make any outreach that would circumvent any other Separate Agreements. You may not use the Services for any illegal purpose or in any manner inconsistent with these Terms. These Terms will survive any discontinuation of the Site or the Services.
8. Intellectual Property Rights
The Site is owned by Deer Isle Group, LLC. You acknowledge that the Site, the Services and any related confidential information and documentation, together with all intellectual property rights embodied therein: (i) are and shall remain the property of Deer Isle; (ii) are protected under the patent, trademark, copyright, trade secret, confidential information, and other intellectual property laws of the United States and other jurisdictions; and (iii) were created, compiled, prepared, selected and arranged by Deer Isle or its licensors or suppliers (as applicable) through the expenditure of substantial time, effort and resources and constitutes valuable intellectual property of Deer Isle or its suppliers (as applicable). Nothing in these Terms shall be construed as conferring expressly or by implication or estoppel or otherwise, any license or right to any trademark, copyright, patent or other intellectual property except as expressly permitted in these Terms.
Deer Isle grants you a limited, non-exclusive, non-transferable license without the right to sub-license, to access and utilize the Site and the Services including specific Content solely for your own information and in connection with your own internal business purposes in accordance with these Terms. The Services may include a facility enabling you to download or to use (“Content Usage”) certain Content (including, without limitation listings of names and/or email addresses of representatives of potential investors, investment opportunities or other third parties). The Content derived from such Content Usage is for your use exclusively in accordance with the license granted under these Terms and any signed Separate Agreements, and you may not disclose, transmit or pass such Content to any third party (or offer to do any of the foregoing) without the prior written approval of Deer Isle.
You agree that Deer Isle retains all rights not specifically granted to you including all rights to all Content including any Content provided by Deer Isle to you.
The trademarks, logo and slogans displayed on the Site, including the mark “Deer Isle” (collectively the “Trademarks”), are owned by Deer Isle and others. Nothing on the Site should be construed as granting any license or right to use the Trademarks without written permission of Deer Isle or such third-party owner of the Trademarks. Your misuse of the Trademarks, or any other content on the Site, except as provided in these Terms, is strictly prohibited. You are advised that Deer Isle will aggressively enforce its intellectual property rights to the fullest extent of the law.
10. Copyright Infringement
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any Content infringes your copyrights, you (or your agent) may send us a notice requesting that such Content be removed, or access to it blocked. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you with respect to the Content, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details.
Notices and counter-notices with respect to the Site should be sent to:
Designated Agent: Deer Isle Group, LLC
Address of Agent: 2 West 46th Street, Suite 402
New York, NY 10036
Telephone: (212) 488-0555
Email for notice: email@example.com
We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
In the event you believe in good faith that any Content is otherwise in error, please contact us at [firstname.lastname@example.org] with, if possible, a description of the Content to be checked and the location (URL) where such Content can be found on the Site, if applicable, as well as information sufficient to enable us to contact you. We will try to address your concerns as soon as reasonably practicable.
11. Monitoring and Enforcement; Termination
Deer Isle reserves the right to carry out audits to assess your use of the Services (“Service Audit”). The purpose of the Service Audit is to ensure that your usage is within the specified parameters set out in these Terms and any relevant Separate Agreements. To facilitate a Service Audit, you agree to provide (or procure the provision of) any information requested by Deer Isle and to allow Deer Isle physical access to your premises for the purpose of confirming the Service Audit information request.
Following such Service Audit, Deer Isle reserves the right to terminate the Services being provided to you.
Access to certain parts of the Site require a username and password that is assigned to you only after registration and opening a Profile as either an Investor or a Capital Seeker. The Site and the Services offered that require a username and password may contain sensitive or personal information (“Confidential Information”). You agree not to disclose any such Confidential Information to any person, and not to use any such confidential information for any purpose other than the purposes permitted in these Terms and in any signed Separate Agreement.
In all cases, any password-protected Confidential Information accessed by you or your authorized agents as permitted herein will be Confidential Information. Furthermore, you shall not disclose any Confidential Information received through the Services to any third parties or use such Confidential Information for any purpose other than seeking capital or assessing a potential investment. To the extent that you become aware of a Content breach or a threat to such Confidential Information, including copyright or other intellectual property owned by Deer Isle, you shall notify Deer Isle and cooperate with Deer Isle to protect its Confidential Information and other Content including assisting Deer Isle in identifying to whom the Confidential Information and Content have been supplied.
Notwithstanding the above, you or Deer Isle may disclose any Confidential Information to the extent: (i) such disclosure is required by Applicable Law or regulation; (ii) the information has come into the public domain through no fault of the party intending to make the disclosure; or (iii) the information was independently developed by such party without reference to the Content or Services provided by Deer Isle, as demonstrated by contemporaneous written evidence.
With the exception and only to the extent of any Separate Agreements, you agree that any information that you transmit to the Site or Deer Isle in any manner including, but not limited to, pictures, videos, questions, comments, suggestions, website addresses and links to other website/articles, etc. is non-confidential and non-proprietary and can be used by Deer Isle or its affiliates for any purpose. Deer Isle is free to use any idea, concepts, know-how, techniques, etc. contained in any communication to the Site of the Deer Isle for any purpose.
Electronic Communication Privacy Act Notice (18usc 2701-2711): Deer Isle makes no guaranty of confidentiality or privacy of any communication or information transmitted on the Site or any website linked to the Site. Deer Isle will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Deer Isle’s equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Service.
13. No Advice
Absent a Separate Agreement explicitly stating otherwise (which is not expected), nothing in the Services constitutes, nor should it be construed as, investment, legal, tax or other advice of any nature whatsoever and it should not be relied upon to be the basis for any outreach efforts. Furthermore, none of the information contained in the publicly available portions of the Site constitutes a recommendation, a “research report” or product developed by a “research department” under FINRA regulations, solicitation or offer to buy or sell any securities, options or other financial instruments or other assets or provide any investment advice or service. The information contained in the Site has been prepared without reference to any particular Investor’s investment requirements or financial situation.
14. Consent to Receive Notices Electronically
To the extent permitted by any law, statute, ordinary, rule, regulation or order of a government authority in an applicable jurisdiction (“Applicable Laws”), your use of the Site constitutes your consent to receive all communications from us, including general notices, notices of investment opportunities, agreements, legally required disclosures or other information in connection with Deer Isle or materials or services provided (collectively referred hereafter as “Notices”) electronically. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provided to us.
Any notice or other communication from you to Deer Isle shall be in writing and made by email (to be followed by a telephone call to [212-488-0555]) or by post delivered in person or by overnight or express mail or courier.
15. Links from the Site
Certain Content may contain links to external websites. Deer Isle makes no representation that it has reviewed any of the linked external websites and does not endorse or accept any responsibility for the content of such websites, nor the products or services or other items described on or offered by such websites, nor the Content protection practices or polices of such websites. Deer Isle is not liable for any loss or damage which may be incurred by you as a result of or in connection with any access to, or use of, such external websites.
16. Disclaimer of Warranties
THE SITE AND THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND. DEER ISLE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF DEER ISLE CONTENT OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SERVICES. DEER ISLE SHALL NOT BE LIABLE FOR DELAYS OR INTERRUPTIONS OF ANY COMMUNICATION, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF DEER ISLE. DEER ISLE DOES NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE, OR THAT THE SERVICES ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, DEER ISLE MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICES OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DEER ISLE OR THROUGH THE SITE OR THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
17. Limitation on Liability
You hereby agree that you will not hold Deer Isle responsible in law or equity for any decisions of any nature that you make or refrain from making following your use of the Site or the Services.
You expressly agree that your use of the Services is at your own sole risk. Deer Isle has no special relationship with or fiduciary duty to you. You acknowledge that Deer Isle has no control over, and no duty to take any action regarding: who gains access to the Site; what Content you access via the Site; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. Accordingly, Deer Isle (and any of its affiliates) will not in any way be liable to you or any other entity for any inaccuracies, errors, interruptions, defects, omissions, delays, damages, claims, liabilities or losses, regardless of cause, in or arising directly or indirectly from the use of the Site, the Services (including for the avoidance of doubt any Content) or for any damage or delays to the your hardware, software or Content caused by or incidental to the use of the Site or the Services.
You release Deer Isle from all liability for you having acquired or not acquired Content through the Site. Deer Isle makes no representations concerning any Content contained in or accessed through the Site, and Deer Isle will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site or the Service.
While Deer Isle uses reasonable efforts to prepare and provide the Services to you, neither Deer Isle nor its affiliates shall be liable for any failure or inability to provide the Services due to any event, condition, or circumstances beyond Deer Isle’s reasonable control.
Deer Isle and its affiliates shall not be liable for any special, consequential, exemplary or punitive damages, including, but not limited to, loss of capital and lost profits, whether or not it or they are aware of the possibility thereof.
Notwithstanding the foregoing, if Deer Isle or any of its agents or service providers are deemed to be liable to you for any reason (whether arising in contract, tort, strict liability or otherwise), Deer Isle’s total liability, including any of its agents hereunder shall be limited to the lesser of (a) $5,000 and (b) an amount equal to the amount paid to the Deer Isle in the one year period preceding the event giving rise to the Claim of providing the Services.
You shall defend, indemnify, and hold harmless Deer Isle, its affiliates, their respective heirs, successors and assigns, and the employees, contractors, officers, directors, managers, owners, partners, agents, and representatives, suppliers and service providers of each of the foregoing from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Site, the Services, the Content or otherwise from your submissions, violation of this Agreement, or infringement by you, or any third party using your Profile, of any intellectual property or other right of any person or entity. Deer Isle reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Deer Isle in asserting any available defenses.
If you are a California resident, you waive California Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes, without limitation, any claim resulting from delay and the criminal acts of others.
19. Governing Law and Jurisdiction
These Terms shall be governed by and construed in accordance with the internal laws of the State of New York, except that the arbitration provision shall be governed by the Federal Arbitration Act. Any legal suit, action or proceeding arising out of, or related to, the Site or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the City of New York and County of New York. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
We make no representation that this Site is operated in accordance with the laws or regulations of, or governed by, nations other than those of the United States. If you are located outside of the United States, you use this Site at your own risk and initiative and you, not us, are responsible for compliance with any applicable local and national laws.
EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD-PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) (each a “Dispute”) between you and Deer Isle or their successors or assigns shall exclusively be settled through binding and confidential arbitration.
You are thus giving up your right to go to court to assert or defend your rights 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. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by a court.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be administered by Judicial Arbitration and Mediation Service Inc. (“JAMS”) pursuant to its Comprehensive Arbitration Rules and Procedures in New York City. The legal, filing, arbitration, and other fees and expenses arising out of such arbitration shall be borne by you.
You agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Deer Isle’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
21. Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
22. Waiver and Severability
No waiver by Deer Isle of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Deer Isle to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
23. Entire Agreement
These Terms combined with any signed Separate Agreements constitute the full Agreement between you and Deer Isle and may not be changed except with each parties’ signature, except that Deer Isle may amend these Terms, from time to time, as stated above by posting revisions on the Site.
24. Your Comments and Concerns
All other feedback, comments, requests for technical support and other communications relating to the Site should be directed to: [email@example.com].