The Application Is Available “AS-IS”
Your access to and use of the Application is at your own risk. You understand and agree that the Application is provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing,OURAFFILIATESANDWEDISCLAIMANYWARRANTIES, EXPRESSOR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security or reliability of the Application or any content in the Application. We will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Application. Moreover, you agree that we do not have responsibility or liability for the deletion of, or the failure to store or to transmit, any material or content and other communications maintained in the Application. We make no warranty that the Application will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from the Application or our representatives, will create any warranty not expressly made in these Terms.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OFPROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF ANTICIPATED SAVINGS; ACCRUED BUT WASTED EXPENDITURE; COST OF PROCUREMENT OF SUBSTITUE GOODS OR SERVICES, LOSS OF GOODWILL; OR OTHER INTANGIBLE LOSSES RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATION;(ii)ANYCONDUCTORCONTENTOFANYTHIRD PARTYONTHEAPPLICATION, INCLUDING ANY DEFAMATORY, OFFENSIVE, OR ILLEGALCONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE APPLICATION; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF ANY MATERIAL OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. IN SOME JURISDICTIONS THE APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IN ALL CASES OUR MAXIMUM LIABILITY IS LIMITED TO ANY FEES PAID BY YOU TO US.
Governing Law and Resolution of Disputes
BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US.
(a) In this Arbitration Section:
(i) “You” and “your” mean the individual or legal entity entering into these Terms, as well as any person claiming through such individual;
(ii) “We” and “us” means Recomm, its affiliates, and each of their respective parents,subsidiaries, affiliates, predecessors, successors, and assigns, as well as the officers,directors, and employees of each of them;
(iii) “Claim” means any dispute, claim, or controversy (whether based on contract, tort, intentional tort, constitution, statute, ordinance, common law, or equity, whether pre-existing, present, or future, and whether seeking monetary, injunctive, declaratory, or any other relief) arising from or relating to these Terms or therelationship between us and you (including claims arising prior to or after the date ofthe Terms, and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class), and includes claims that are brought as counterclaims, crossclaims, third party claims or otherwise, aswell as disputes about the validity or enforceability of these Terms or the validity orenforceability of this Arbitration Section.
(b) Any Claim will be resolved by binding arbitration administered by the American Arbitration Association or JAMS, under the applicable arbitration rules of theadministrator in effect at the time a Claim is filed (“Rules”). Any arbitration under theseTerms will take place on an individual basis; class arbitrations and class actions are not permitted. You can obtain the Rules and other information about initiating arbitration by contacting the American Arbitration Association at 1633 Broadway, 10th Floor, New York,NY 10019, www.adr.org. The address for serving any arbitration demand or claim on us is ReNett, 1013 Centre Road, Suite 403-B, Wilmington, Newcastle, Delaware 19805, Attention: Legal.
(c) Claims will be arbitrated by a single, neutral arbitrator, who will be a retired judge or a lawyer with at least ten years’experience.
(d) Any in-person arbitration hearing will be held in the city with the federal district court closest to your residence, or in such other location as you and we may mutually agree. The arbitrator will apply applicable substantive law consistent with the Federal Arbitration Act,9 U.S.C. §§ 1-16, and, if requested by either party, provide written reasoned findings of fact and conclusions of law. The arbitrator will have the power to award any reliefauthorized under applicable law. Any appropriate court may enter judgment upon the arbitrator’s award. The arbitrator’s decision will be final and binding except that: (1) anyparty may exercise any appeal right under the FAA; and (2) any party may appeal any award relating to a claim for more than $100,000 to a three-arbitrator panel appointed bythe administrator, which will reconsider de novo any aspect of the appealed award. The panel’s decision will be final and binding, except for any appeal right under the FAA.
(e) YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise in writing, the arbitrator may notconsolidate more than one person’s claims. The arbitrator will have no power to arbitrate
any Claims on a class action basis or Claims brought in a purported representative capacityon behalf of the general public, other borrowers, or other persons similarly situated. The validity and effect of this paragraph (e) will be determined exclusively by a court, and not by the administrator or any arbitrator.
(f) If any portion of this Arbitration Section is deemed invalid or unenforceable for any reason, it will not invalidate the remaining portions of this section. The terms of thisArbitration Section will prevail if there is any conflict between the Rules and this section.
(g) YOU AND WE AGREE THAT, BY ENTERING INTO THESE TERMS, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE INA CLASS ACTION. YOU AND WE ACKNOWLEDGE THAT ARBITRATION WILL LIMIT OUR LEGAL RIGHTS, INCLUDING THE RIGHT TO PARTICIPATE IN ACLASS ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO CONDUCT FULL DISCOVERY, AND THE RIGHT TO APPEAL (EXCEPT AS PERMITTED IN PARAGRAPH (d) OR UNDER THE FEDERAL ARBITRATION ACT).
(h) You and we acknowledge and agree that the arbitration agreement set forth in this Arbitration Section is made pursuant to a transaction involving interstate commerce, andthus the Federal Arbitration Act will govern the interpretation and enforcement of thisArbitration Section. This Arbitration Section will survive the termination of these Terms.
(i) In the event that a dispute does not proceed to arbitration, these Terms and all other aspectsof your use of the Service will be governed by and construed in accordance with the laws of the United States and, to the extent applicable, to the laws of the State of New York,without regard to its conflict-of-laws principles. You agree that you will notify us in
writing of any claim or dispute concerning or relating to the Service and the information or services provided through it, and give us a reasonable period of time to address it before bringing any legal action, either individually, as a class member or representative, or as a private attorney general, against us.