Welcome to dv01, the one-stop shop for accessing and analyzing standardized loan-level data.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
If you agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
We reserve the right, at our sole discretion, to modify, discontinue, or terminate the Services, or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on the Site and the Platform, or provide you with notice of the modification at the last email address you gave us. By continuing to access or use the Services after we have modified the Agreement, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, then your only recourse is to cease using the Services.
In addition to this Agreement, your use of and access to the Platform may be subject to the terms and conditions of a Master Subscription Agreement or Master Services Agreement between each User and dv01 (each, an “MSA”). If you have entered into an MSA with dv01, then in the event any provision of this Agreement conflicts with any provision of the MSA, the provision of the MSA will prevail and govern to the extent of such conflict.
The Services are available only to individuals aged 18 years or older. If you are 18 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.
As a User of the Services, you hereby represent and warrant to dv01 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.
We reserve the right, in our sole and absolute discretion, to deny you access to the Services or any portion thereof, without notice and without reason, subject to any overriding rights you may have in your MSA (if any).
USERS; ACCESS TO THE SERVICES
Subject to User’s compliance with the terms and conditions of this Agreement, dv01 grants User a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services during the term of this Agreement solely for the internal business purposes of User and as expressly provided for herein. Users of our various Services include Visitors and Registered Users. “Visitors,” as the term implies, are people who do not register with us, but want to explore the Site. No login to the Site is required for Visitors, but Visitors will not have access to the Platform. Visitors can: (i) view all content and access all publicly-available features and functionality on the Site; (ii) subscribe to dv01 communications, alerts, and other notifications; and (iii) contact us. “Registered Users” can do all the things that Visitors can do, and additionally have access to the Platform and Platform Data subject to their applicable MSAs. Registered Users are prohibited from allowing any third party to access or use the Platform under such Registered User’s account, and each Registered User is responsible for the acts and omissions of any person who accesses or uses the Platform using any such Registered User’s login credentials. You are solely responsible for maintaining the confidentiality of your username and password. You agree to notify dv01 immediately of any unauthorized use of your username, password, or account.
The data maintained or displayed on, or made accessible by or through, the Platform (the “Platform Data”) may not be publicly available, and in many cases may contain confidential information. Accordingly, Users may not disclose the Platform Data to any third party without dv01’s prior written consent unless otherwise expressly permitted in your MSA (if any).
Your access to the Platform Data may require the consent of a third party, such as the loan originator or issuer (each, a “Data Provider”). Accordingly, Registered Users may be required to submit a request for access to such Platform Data to dv01 in our capacity as loan data agent for the applicable transaction. By sending this request, the User hereby certifies that it is (i) an investor in the selected transaction, (ii) a potential investor in the selected transaction, or (iii) a party to the selected transaction. If you are an investor or potential investor in the selected transaction, you hereby agree to use the applicable Platform Data solely to evaluate your investment or possible investment in the securities issued by the selected transaction and will otherwise (i) keep the information confidential, (ii) disclose it only to those individuals within your organization (or its advisors) with a need to know such Platform Data as it relates to such transaction (provided that you shall be liable for any unauthorized use or disclosure thereof by any such individual), and (iii) comply with all applicable federal and state laws and regulations and as otherwise specified in the deal documents for the selected transaction. With respect to each specific transaction for which you request access to Platform Data, you hereby certify that you are an investor or potential investor regularly investing in asset backed securities and that you maintain a combined capital and surplus of at least fifty million U.S. dollars (US$50,000,000). Further, in your capacity as a participant in any applicable transaction and to the extent you have requested Platform Data related to such transaction, you hereby represent and warrant to dv01 that you are one of the following:
a) Qualified Institutional Buyer;
b) Non-U.S. Person Under Regulation S; or
c) Government Sponsored Regulatory Body
In each instance, dv01 shall disclose Platform Data to you solely in accordance with the express permission provided to us by the applicable third party with respect to such Platform Data. For the avoidance of doubt, dv01 shall have no obligation to disclose any Platform Data to you unless dv01 has received express permission from the applicable third party to disclose such Platform Data in each instance.
CONTENT; OWNERSHIP; FEEDBACK
The Services may contain material including, without limitation, text, videos, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, artwork, algorithms, functionalities, features and computer code, including but not limited to design, structure, “look and feel” and arrangement of the content available through the Services (collectively, “Content”). Elements of the Content are protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws (both U.S. and foreign laws), and unauthorized use of the Content may violate such laws.
Except as otherwise expressly permitted in your MSA, you may view all Content solely for your own personal, non-commercial use. As between the parties, dv01 retains all right, title, and interest in and to the Services, the Content, and all software, works, and other intellectual property rights related thereto or created, used, or provided by dv01, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly set forth in this Agreement. In connection with your permitted use of the Content, you must retain all copyright and other proprietary notices contained in the original Content. The use or posting of the Content on any other website for any purpose is expressly prohibited.
Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors.
The trademarks, service marks, and logos of dv01 (the “dv01 Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of dv01. Other company, product, and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with dv01 Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of dv01 Trademarks inures to our benefit.
RESTRICTIONS ON USE
Except as expressly set forth in this Agreement or your MSA, if applicable, User shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services or any information contained or displayed therein including Content and Platform Data (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services, or any Content, Platform Data, or information contained or displayed therein; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Content, Platform Data, or information contained or displayed therein; (iv) use the Services or any Content, Platform Data, or information contained or displayed therein for the benefit of a third party; (v) remove or alter any proprietary notices or labels from the Services or any Content, Platform Data, or information contained or displayed therein; (vi) use the Services or any Content, Platform Data, or information contained or displayed therein to build an application or product that is competitive with any dv01 product or service; (vii) interfere or attempt to interfere with the proper working of the Services; (viii) bypass any measures dv01 may use to prevent or restrict access to the Services or any Content, Platform Data, or information contained or displayed therein; (ix) benchmark the Services, or publish or disclose any performance information with respect to the Services to any third party; (x) resell, disclose, publish, disseminate or redistribute the Services or any Content, Platform Data, or information contained or displayed therein for external commercial purposes; (xi) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Services; or (xii) sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. Further, User (a) shall use the Services and all Content, Platform Data, and information contained or displayed therein in compliance with all applicable local, state, national and foreign laws, treaties and regulations (including those related to data privacy, international communications, export laws and the transmission of technical or personal data), and (b) shall not use the Services or any Content, Platform Data, or information contained or displayed therein in a manner that violates any third party intellectual property, contractual or other proprietary rights.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES, CONTENT, PLATFORM DATA, AND ALL OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND DV01 HEREBY DISCLAIMS (FOR ITSELF, ITS LICENSORS AND DIRECT AND INDIRECT SUPPLIERS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, CONTENT, PLATFORM DATA, AND ALL OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN, INCLUDING ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY, ACCURACY, COMPLETENESS, TIMELINESS, CURRENTNESS, OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. DV01 AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE SERVICES, CONTENT, PLATFORM DATA, AND ALL OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (II) THE SERVICES, CONTENT, PLATFORM DATA, OR ANY OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN, WILL MEET ANY USER’S OR THIRD PARTY’S REQUIREMENTS OR EXPECTATIONS, OR (III) THE SERVICES, CONTENT, PLATFORM DATA, AND ALL OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN, OR THE SERVER(S) THAT MAKE THEM AVAILABLE ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES, CONTENT, PLATFORM DATA, AND ALL OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN ARE FOR INFORMATIONAL PURPOSES ONLY. DV01 OFFERS OPINIONS, NOT STATEMENTS OF FACT, BY AND THROUGH THE SERVICES. THEY ARE NOT, AND SHOULD NOT BE CONSTRUED AS, RECOMMENDATIONS OR SUGGESTIONS, DIRECTLY OR INDIRECTLY, TO USER OR ANY OTHER PERSON, TO BUY, SELL, MAKE OR HOLD ANY INVESTMENT, LOAN OR SECURITY OR TO UNDERTAKE ANY INVESTMENT STRATEGY WITH RESPECT TO ANY INVESTMENT, LOAN OR SECURITY OR ANY ISSUER. USER ACKNOWLEDGES THAT DV01 IS NOT USER’S ADVISOR AND IS NOT PROVIDING USER ANY FINANCIAL OR INVESTMENT ADVICE (INCLUDING WITHIN THE MEANING OF 29 C.F.R. § 2510.3-21(c)), OR ANY LEGAL, AUDITING, ACCOUNTING, APPRAISAL, VALUATION OR ACTUARIAL SERVICES. THE SERVICES, CONTENT, PLATFORM DATA, AND ALL OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN SHOULD NOT BE VIEWED AS A REPLACEMENT FOR SUCH ADVICE. NOTHING IN THIS AGREEMENT SHOULD BE CONSTRUED AS CREATING A FIDUCIARY RELATIONSHIP BETWEEN USER AND DV01. ANY RELIANCE UPON THE SERVICES, CONTENT, PLATFORM DATA, OR ANY OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN, AND ALL RESPECTIVE PARTS OF EACH OF THE FOREGOING, IS AT YOUR OWN DIRECTION AND YOUR OWN RISK. THE SERVICES, CONTENT, PLATFORM DATA, AND ALL OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH ERRORS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, USER UNDERSTANDS AND AGREES THAT DV01 HAS NOT CONSENTED TO, AND WILL NOT CONSENT TO, (A) BEING NAMED AN “EXPERT” UNDER THE FEDERAL SECURITIES LAWS INCLUDING SECTION 7 OF THE SECURITIES ACT OF 1933, OR (B) IDENTIFICATION OF DV01 IN ANY REGISTRATION STATEMENT OR PROSPECTUS (INCLUDING THROUGH INCORPORATION) WITHIN THE MEANING OF SECTION 7 OF THE SECURITIES ACT OF 1933 SUCH THAT DV01 COULD REASONABLY BE EXPECTED TO BE CONSIDERED AN “EXPERT” UNDER THE FEDERAL SECURITIES LAWS INCLUDING SECTION 7 OF THE SECURITIES ACT OF 1933. USER ACKNOWLEDGES THAT SERVICES, CONTENT, PLATFORM DATA, AND ALL OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN MAY BE SUBJECT TO SUCH LAWS AND REGULATIONS AND USER AGREES TO COOPERATE WITH DV01 IF USER’S COOPERATION IS NECESSARY FOR DV01’S COMPLIANCE. USER ALSO ACKNOWLEDGES THAT DV01 MAY BE REQUIRED TO DISCLOSE CERTAIN USER INFORMATION IF REQUIRED BY LAW OR REGULATORY AUTHORITY.
Limitation of Liability
USER ACKNOWLEDGES AND AGREES THAT IT SHALL ASSUME SOLE RESPONSIBILITY FOR EVALUATING THE MERITS AND RISKS ASSOCIATED WITH ANY INVESTMENT DECISION THAT USER MAY MAKE BASED ON INFORMATION OBTAINED THROUGH THE SERVICES, CONTENT, PLATFORM DATA, OR ANY OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN. USER ACKNOWLEDGES THAT NEITHER DV01 NOR ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES SHALL HAVE ANY LIABILITY TO USER OR ANY OTHER USER FOR ANY CLAIM OR DAMAGES THAT ARISE FROM OR RELATE TO ANY DECISION BASED ON INFORMATION RECEIVED THROUGH THE SERVICES, CONTENT, PLATFORM DATA, OR ANY OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN.
WITHOUT LIMITING THE FOREGOING, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE MSA (IF ANY), AND TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) IN NO EVENT WILL DV01 BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE, PLATFORM, OR SERVICES, THE INABILITY TO USE THE SERVICES, CONTENT, PLATFORM DATA, AND ALL OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN, OR ANYTHING ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF REVENUE OR ANTICIPATED PROFITS, OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF DV01 HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, AND (II) THE TOTAL LIABILITY OF DV01 FOR ANY DIRECT DAMAGES NOT ATTRIBUTABLE TO PERSONAL INJURIES THAT YOU MAY SUFFER IN CONNECTON WITH THE SERVICES, CONTENT, PLATFORM DATA, AND ALL OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN OR OTHERWISE ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED, IN THE AGGREGATE, US$500.00. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES, CONTENT, PLATFORM DATA, AND ALL OTHER MATERIAL CONTAINED OR DISPLAYED THEREIN MUST BE BROUGHT BY YOU WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
This Agreement shall commence on User’s indication of User’s acceptance of this Agreement (or, with respect to Visitors, upon first visiting and using the Site), and will continue unless this Agreement is terminated in accordance herewith. If applicable, this Agreement shall automatically terminate upon the termination of dv01’s agreement with the lead investor or loan servicer of any transaction whose data you are permissioned to access hereunder. Without limiting the foregoing, (a) either party may terminate this Agreement immediately upon written notice to the other, for any or no reason at all; and (b) dv01 may suspend or limit User’s access to or use of the Services if User’s use of the Services results in (or in dv01’s judgement is reasonably likely to result in) damage to or material degradation of the Services that could interfere with dv01’s ability to provide access to the Services to others. All provisions of this Agreement which by their nature should survive termination shall survive, including without limitation, ownership provisions, warranty disclaimers and limitations of liability.
LINKS TO OTHER SITES
The Services may contain links to other independent third-party websites, and we provide links to third-party websites as part of the Services (in all cases, “Linked Sites”). These Linked Sites are provided solely as a convenience to you. Such Linked Sites are not under our control, and we are not responsible for and do not endorse the content of such Linked Sites, including any products, information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of third party websites, including, without limitation, Linked Sites and websites linking to the Site or Platform. You should review applicable terms and policies, including privacy and data gathering practices, of third party websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
COMPLIANCE WITH APPLICABLE LAWS
The Site, Platform and Services are based in the United States. We make no claims concerning whether any Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Site, Platform, or Services from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
COMMUNICATIONS WITH AND SUBMISSIONS TO US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, ratings, feedback, questions, comments, suggestions, and the like (collectively, “Feedback”) you hereby grant to dv01 a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit such Feedback for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such Feedback, without compensation or attribution to you.
ADDITIONAL PASS-THROUGH RESTRICTIONS FOR CERTAIN PLATFORM DATA
MBS Data and Loan Performance Data - Absolute Prohibition Against Correlation of the Data to Individuals. Under no circumstance will User, directly or indirectly, use, copy, modify, decompile, disassemble, scrape, cache, frame, mask, correlate, or apply any process to the Platform Data in order to misappropriate any information about the Platform Data or derive any information about any particular individual including but not limited to violation of applicable privacy laws or regulations and/or in any way that would be deemed an unlawful invasion of privacy, whether or not for internal or external use of the results of such correlation. User will comply with all federal, state and local laws and regulations governing the access, handling, and use of the Platform Data by User. User agrees and acknowledges that this Agreement maybe terminated without notice upon violation of this provision.
User agrees and acknowledges that the CUSIP Database and the information contained therein (collectively, “CUSIP Information”) is and shall remain valuable intellectual property owned by, or licensed to, CUSIP Global Services (“CGS”) and the American Bankers Association (“ABA”), and that no proprietary rights are being transferred to User in any CUSIP Information. Any use of CUSIP Information by User outside of the clearing and settlement of transactions requires a license from CGS, along with an associated fee based on usage. User agrees that misappropriation or misuse of any CUSIP Information will cause serious damage to CGS and ABA, and that in such event money damages may not constitute sufficient compensation to CGS and ABA; consequently, User agrees that in the event of any such misappropriation or misuse, CGS and ABA shall have the right to obtain injunctive relief in addition to any other legal or financial remedies to which CGS and ABA may be entitled.
User agrees that User shall not publish or distribute in any medium the CUSIP Information contained therein or summaries or subsets thereof to any person or entity except in connection with the normal clearing and settlement of security transactions. User further agrees that the use of CUSIP numbers and descriptions is not intended to create or maintain, and does not serve the purpose of the creation or maintenance of, a master file or database of CUSIP descriptions or numbers for itself or any third party recipient of such service and is not intended to create and does not serve in any way as a substitute for the CUSIP MASTER TAPE, PRINT, DB, INTERNET, ELECTRONIC, CD‐ROM Services and/or any other future services developed by the CGS.
NEITHER CGS, ABA NOR ANY OF THEIR AFFILIATES MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY OF THE CUSIP INFORMATION OR ANY OTHER INFORMATION CONTAINED IN THE CUSIP DATABASE. ALL SUCH MATERIALS ARE PROVIDED TO USER ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE NOR WITH RESPECT TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF SUCH MATERIALS. NEITHER CGS, ABA NOR THEIR AFFILIATES SHALL HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY ERRORS OR OMISSIONS NOR SHALL THEY BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF CGS, ABA OR ANY OF THEIR AFFILIATES PURSUANT TO ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEE PAID BY USER FOR ACCESS TO SUCH MATERIALS IN THE MONTH IN WHICH SUCH CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN. FURTHERMORE, CGS AND ABA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR DELAYS OR FAILURES DUE TO CIRCUMSTANCES BEYOND THEIR CONTROL.
RELATIONSHIP OF THE PARTIES
You agree that no joint venture, partnership, employment, or agency relationship exists between you and dv01 as a result of this Agreement or accessing or using the Services. Our performance under this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your access to or use of the Services, the Content, the Platform Data, or information provided to or gathered by us with respect to such use.
In the event of a dispute arising under or relating to this Agreement, and except as otherwise provided in your MSA, if any, the Services, the Content, the Platform Data, or any other information made accessible through the foregoing (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in the Section entitled “Equitable Relief” below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, dv01 will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York, Borough of Manhattan for purposes of any such action by us.
This Agreement represents the entire agreement between User and dv01 with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings with respect thereto; provided, however, that this Agreement does not supersede your MSA (if any) and such MSA shall remain in full force and effect in accordance with its terms. This Agreement shall be governed by the laws of the State of New York, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts in the Borough of Manhattan, City of New York. dv01 reserves the right, in its sole discretion, to change, suspend, or discontinue Services or any portion thereof at any time by posting a notice through the Services or by another appropriate means of electronic communication. This Agreement is personal to User and is not assignable, transferable or sublicensable except with dv01’s prior written consent. No agency, partnership, joint venture, or employment relationship may be implied as a result of this Agreement. If any provision herein is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement shall not constitute a waiver of such breach or any subsequent breaches.
May 4, 2023
Material revisions by Director of Legal