IMPORTANT! READ THIS ENTIRE AGREEMENT CAREFULLY
THESE ARE THE GENERAL TERMS AND CONDITIONS GOVERNING YOUR USE OF GIBRALTAR BUSINESS CAPITAL, LLC’S WEBSITE AND OUR SERVICES
IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS THE SITE OR USE ANY OF THE SERVICES
1. Company Reserves the Right to Revise this Agreement. Company reserves the right, at any time and from time to time, to update, revise, supplement and to otherwise modify this Agreement and to impose new or additional rules, policies, terms or conditions on your use of the Site. Such updates, revisions, supplements, modifications and additional rules, polices, terms and conditions (collectively referred to in this Agreement as “Additional Terms”) shall be effective immediately and incorporated into this Agreement upon notice thereof, which may be given by any reasonable means including by posting to this Site. Your continued use of the Services following such notice shall be deemed to conclusively indicate your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.
2. Company May Revise or Terminate Any Part of the Information Posted on its Site at Any Time. Company reserves the right, at any time and from time to time, to modify or discontinue, temporarily or permanently, any or all of the information posted on its Site with or without notice and in its sole discretion. This includes the right to modify, discontinue or remove any content, postings, links, pages, services, or other materials at any time and for any reason. You agree that Company shall not be liable to you for any modification, general suspension or discontinuance of any of the information posted on its Site. Company may, in its sole discretion, refuse or restrict anyone from access to any or all areas of the Site at any time.
3. Security, Cracking and Hacking. You shall not violate or attempt to violate the security of the Site. Accordingly, you shall not: (i) access data or materials not intended for you; (ii) log into a server or account which you are not authorized to access; (iii) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (iv) attempt to interfere with service to any user, host or network, including without limitation, via means of submitting a virus to the Site, overloading, “flooding”, “mailbombing” or “crashing” the Site. Violations of system or network security may result in civil or criminal liability. Company reserves the right to investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You agree that it is your responsibility to install anti-virus software and related protections against viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines or engines that are intended to damage, destroy, disrupt or otherwise impair a computer’s functionality or operation which may be transferred to your computer via the Site.
5. You Are Responsible For All of Your Activities and All of The Content You Post. You are responsible for your communication content and transmissions. You agree NOT to use the Site for, or in connection with, transmitting material that contains viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines or engines that are intended to damage, destroy, disrupt or otherwise impair a computer’s functionality or the operation of Company’s Site, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, or transmit any materials that otherwise violate Company’s rules or policies.
6. Ownership. All information, content, materials and software posted to or used in conjunction with the Site including, without limitation, text, graphics, logos, button icons, images and audio clips, and the underlying computer program (including but not limited to HTML code) are the property of Company or its licensors and are protected by U.S. and international copyright, trademarks and other proprietary rights and intellectual property rights laws. The compilation of all content on this Site is the exclusive property of Company and is protected by U.S. and international copyright laws. Except to the minimum extent otherwise expressly permitted under copyright law, no copying or exploitation of material from the Site is permitted without the express written permission of Company and any other applicable copyright owner. You acknowledge that you do not acquire any ownership rights by virtue of downloading copyrighted material from the Site. All rights not expressly granted hereunder are expressly reserved to Company.
8. Claims of Copyright Infringement. If you believe in good faith that materials available on this Site infringe your copyright, you (or your agent) may send Company a notice requesting us to remove the material or block access to it.
9. Termination. Company may and will terminate your access to the Site immediately, if, in its sole discretion, Company believes that your conduct fails to conform to requirements of this Agreement. Without limiting the foregoing, if you use, or attempt to use any or all of the Site for any purposes other than its intended purposes (including without limitation by tampering, hacking, modifying or otherwise corrupting the security or functionality of the Site), you may also be subject to civil and criminal liability.
10. Disclaimer of Warranties. YOU ACCESS AND USE THE SITE AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION. COMPANY DOES NOT WARRANT THAT THE SITE WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. IN ADDITION, COMPANY DOES NOT WARRANT THAT INFORMATION AVAILABLE ON OR THROUGH THE SITE ARE APPROPRIATE, ACCURATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION, AND ACCESSING THEM FROM JURISDICTIONS WHERE THEIR CONTENTS ARE ILLEGAL IS EXPRESSLY PROHIBITED. Some jurisdictions do not allow exclusion of implied warranties, so the above exclusions may not apply to you.
11. Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF ANY OR ALL OF THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS, IN WHOLE OR IN PART, HELD TO BE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF COMPANY FOR ANY REASON AND UPON ANY CAUSE OF ACTION (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY AND OTHER ACTIONS IN CONTRACT OR TORT) ARISING OUT OF OR IN ANY WAY RELATED TO THE SITE OR THIS AGREEMENT SHALL BE LIMITED TO YOUR DIRECT DAMAGES ACTUALLY INCURRED UP TO TWO HUNDRED FIFTY DOLLARS ($250). THE LIMITATION OF LIABILITY HEREIN APPLIES TO ALL LIABILITIES IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM YOUR USE OR YOUR INABILITY TO USE THE SITE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE A COMPANY DOING BUSINESS IN CALIFORNIA, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “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.”
12. Indemnity of Company. Except where the Company is liable, you agree to indemnify and hold Company harmless, and, at Company’s request, to defend Company from and against any claim, demand, cause of action, debt, loss or liability, including reasonable attorneys’ fees, to the extent that such action is based upon, arises out of, or relates to: (i) your use of (or inability to use) any and all portions of the Site; (ii) your violation of the terms and conditions of this Agreement; (iii) the infringement by you, or any other person using your password and account, of any right of any person or entity; or (iv) any other of your activities relating to your use of this Site.
13. Order of Precedence. This Agreement governs your use of this Site and access to the Services. This Agreement does not modify, alter or amend any other agreement you have entered or will enter into with Company or any of its related or affiliated entities. To the extent that any provision of this Agreement, or any agreement offered as part of any services offered to you by the Company, conflicts with any provision of your other agreements with Company or any of its related or affiliated entities, the terms of such other agreement, shall, as to the subject matter of that other agreement, take precedence over the conflicting term(s) of this Agreement.
14. Dispute Resolution. If a dispute arises out of or relates to the Site or this Agreement or its breach (with the exception of rights to injunctive relief with respect to intellectual property rights), and the parties have not been successful in resolving the dispute through direct negotiation, then the dispute will be resolved in binding arbitration as follows: (i) the arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules; (ii) any judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction; (iii) the location of the arbitration will be Chicago, Illinois, U.S.A. or such other location as the parties may mutually agree; and (iv) the parties will have the right to take discovery of the other party by any method allowed by the Federal Rules of Civil Procedure. The arbitrator(s) will each be a natural person who has never been employed (either as an employee or as an independent consultant) by either of the parties, or any parent, subsidiary or affiliate thereof, and will be familiar with the business of the parties. The arbitrator(s) may upon request exclude from use in the arbitration proceeding any evidence not made available to the other party pursuant to a proper discovery request. The arbitrator(s) will issue a reasoned award. The cost of the arbitration will be borne equally by the parties pending the award. Upon the decision of the arbitrator(s), the prevailing party will be entitled to receive from the other party its reasonable attorneys’ fees and costs. The parties, their representatives, other participants, the arbitrator(s) and the administrator(s) of the arbitration will hold in confidence the existence, content and outcome of the arbitration.
15. Choice of Law and Forum. The Site is controlled by Company from within the State of Illinois, U.S.A., although it may be accessed and used throughout the world. Subject to Section 13 herein, by accessing or using the Site, you and Company each agree that the internal laws of the State of Illinois, U.S.A., without regard to its conflict of laws provisions will govern with respect to all matters relating to or arising from this Agreement, or the use (or inability to use) any or all of the Site. Subject to the dispute resolution procedures set forth above, you and Company agree and hereby submit to the exclusive jurisdiction and venue of the appropriate State and Federal courts located in the State of Illinois, U.S.A., with respect to such matters. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Site must be filed or otherwise commenced within one (1) year after such claim or cause of action arose or be forever barred.
YOU HAVE READ, AND UNDERSTAND, AND BY USING OR ACCESSING THIS SITE, AGREE TO BE LEGALLY BOUND BY ALL OF THE FOREGOING TERMS AND CONDITIONS, ALL OF WHICH ARE INCORPORATED FULLY INTO THESE TERMS AND CONDITIONS.