Terms and Conditions
Note: these Terms contain a dispute resolution and arbitration provision, including class action waiver that affects your rights under these Terms and with respect to disputes you may have with TCG. You may opt out of the binding individual arbitration and class action waiver as provided below.
TCG may make changes to the content and Services offered on the Sites at any time. TCG may changes to the Terms at any time by posting the updated Terms on the applicable Site(s). By using any Site after TCG has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Sites.
By using a Site, you represent, acknowledge, and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to agree to these Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless TCG if the Minor breaches any of these Terms. Our Sites are not targeted toward, nor intended for use by, anyone under the age of 13. If you are not at least 13 years old, you may not use our Sites at any time or in any manner or submit any information to TCG, or the Sites.
TCG provides content through the Sites that includes one or more copyright-protected works and trademarks and service marks of TCG, TCG’s third-party licensors and suppliers, or other users of the Sites (collectively, the “Materials”). Materials may include logos, graphics, video, images, software, and other content. Subject to the terms and conditions of these Terms, and your compliance with these Terms, TCG hereby grants you a limited, personal, non-exclusive, non-sublicensable, and non-transferable license to use and to display the Materials and to use the Sites solely for your personal use. Except for the foregoing limited license, you have no other rights in the Sites or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, or in any way exploit any Site or Materials in any manner.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
By using a Site and/or the Services, you consent to receiving electronic communications from TCG. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Site and/or Services provided on or through the Site. These electronic communications are part of your relationship with TCG. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
LINKS TO THIRD-PARTY SITES
Our Sites may be linked to other websites that are not TCG sites, including, without limitation, social networking, blogging, and similar websites through which you are able to log into using your existing account and log-in credentials for such third-party sites, and websites with content that you may find interesting (collectively, “Third-Party Sites”). Certain areas of a Site may allow you to interact and/or conduct transactions with such Third-Party Sites and/or allow you to configure your privacy settings in your Third-Party Site account to permit your activities on our Site to be shared with your contacts in your Third-Party Site account. In certain situations, you may be transferred to a Third-Party Site through a link but it may appear that you are still on our Site. In any case, you acknowledge and agree that the Third-Party Sites may have different privacy policies and terms and conditions of use from those found on our Sites, and you further acknowledge and agree that, in such cases, your use of such Third-Party Sites is governed by such third party privacy policies and terms and conditions of use. TCG provides links to Third-Party Sites to you as a convenience, and we do not verify, make any representations about, or take responsibility for such Third-Party Sites, including, without limitation, the truthfulness, accuracy, quality, or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites. YOU AGREE THAT TCG WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES, AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES, FOR YOUR DEALINGS OR COMMUNICATIONS WITH ANY THIRD PARTIES, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT, PRODUCTS, SERVICES OR BUSINESS PRACTICES OF ANY THIRD PARTY. Unless specifically stated on our Site, we do not endorse any such Third-Party Sites, the products, services, or materials found there, or any results that may be obtained from using them.
When using the Sites, you agree to abide by common standards of decency and act in accordance with the law. By way of example and not limitation, you agree not to:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access the Site or Mobile Application.
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- Alter the opinions or comments posted by others on a Site or via a Mobile Application.
- Post anything contrary to our public image, goodwill, or reputation, provided that the foregoing will not apply to you if applicable law prohibits such limitations and restrictions.
This list of prohibitions provides examples and is not complete or exclusive.TCG may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at TCG’s discretion, TCG will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Sites or on the Internet.
Unauthorized use of any Materials contained on the Sites may violate certain laws and regulations.
You agree to indemnify and hold harmless TCG and any other Licensee and their respective officers, directors, employees and agents from any actual or threatened claim, suit, and action related to the use of a Site, Service or violation of these Terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.
The trademarks, logos, and service marks displayed on the Sites (collectively, the “Trademarks”) are and remain the registered and/or common law marks of TCG, our affiliates, our licensors, or our partners in the United States and other countries, and are protected by laws of the governing jurisdictions.
Unless otherwise specified in these Terms, all information and screens appearing on the Sites, including documents, services, site designs, texts, graphics, logos, images, and icons, as well as the arrangement thereof, are the sole property of TCG, our affiliates, our licensors, or our partners. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any Trademark or copyrighted material is strictly prohibited without the express written consent of the owner.
INTELLECTUAL PROPERTY INFRINGEMENT
TCG respects the intellectual property rights of others, and we ask you to do the same. TCG may, in appropriate circumstances and at our discretion, terminate service and/or access to and use of the Sites for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on a Site, please provide TCG’s designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit TCG to locate the material.
- Information reasonably sufficient to permit TCG to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
TCG’s agent for notice of claims of copyright or trademark infringement on the Sites can be reached as follows:
Transom Capital Group
100 N Pacific Coast Hwy
El Segundo, CA 90245
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing shall be liable for any damages, including costs and attorneys’ fees incurred as a result of such misrepresentation.
Submitting a Digital Millennium Copyright Act (“DMCA”) Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to TCG’s designated agent that includes all of the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good-faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which TCG may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
TCG reserves the right, in its sole discretion, to terminate the account or access of any user of our Sites and/or Services who is the subject of repeated DMCA or other infringement notifications.
DISCLAIMER OF WARRANTIES
Your use of the Sites and Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by TCG, and they may include inaccuracies or typographical or other errors. TCG does not warrant the accuracy or timeliness of the Materials contained on the Sites. TCG has no liability for any errors or omissions in the Materials, whether provided by TCG, our licensors or suppliers or other users.
TCG, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITES, THE MOBILE APPLICATIONS, THE SERVICES, OR ANY MATERIALS, OR RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED OR PRESENTED ON THE SITES OR MOBILE APPLICATIONS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITES, THE MOBILE APPLICATIONS, THE SERVICES, THE MATERIALS, AND ANY INFORMATION CONTAINED OR PRESENTED ON THE SITES AND/OR MOBILE APPLICATIONS IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. TCG DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
LIMITATION OF LIABILITY
TCG SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USE OF THE SITES, MOBILE APPLICATIONS OR ANY SERVICES, OR FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE SITES. IN NO EVENT SHALL TCG BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF TCG KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
TCG controls and operates the Sites from its offices in the United States of America, and the Services and Materials may not be appropriate or available for use in other locations. If you use a Site and/or Services outside the United States of America, you are solely responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to TCG, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to a Site, any Services, or any Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and TCG is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that TCG is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution. To the extent the foregoing assignment of rights, title, and interest in and to your Feedback is prohibited by applicable law, you hereby grant TCG and any other Licensee a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to fully use, practice, and exploit those non-assignable rights, title, and interest, including, but not limited to, the right to use, reproduce, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit, and distribute your Feedback, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, for any purpose, and to develop, manufacture, have manufactured, license, market, and sell, directly or indirectly, products and services using such Feedback.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at [email protected]. This Dispute Resolution and Arbitration; Class Action Waiver provision (this “Provision”) facilitates the efficient resolution of any disputes that may arise between you and TCG. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes (as defined below) between you and TCG shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorneys’ fees).
For the purpose of this Provision, “TCG” means Transom Capital Group and its parents, subsidiaries, and affiliates, and each of their respective shareholders, members, officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and TCG regarding any aspect of your relationship with TCG, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability, or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as TCG’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
YOU AND TCG EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give TCG an opportunity to resolve the Dispute. You must commence this process by mailing written notification to TCG at Transom Capital Group, 23 Barry Place, Stamford, CT 06902. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If TCG does not resolve the Dispute within forty-five (45) days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt-Out
Notwithstanding the above, you or TCG may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Transom Capital Group, 100 N Pacific Coast Hwy, Suite 1725, El Segundo, CA 90245. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with TCG through arbitration. Your decision to opt out of this Arbitration Provision will have no adverse effect on your relationship with TCG. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution), either you or TCG may initiate arbitration proceedings. JAMS, www.jamsadr.com will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
The JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing, but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or TCG may initiate arbitration in either Los Angeles, California, or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, TCG may transfer the arbitration to Los Angeles, California, in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – TCG will pay arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. Notwithstanding the foregoing, you are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and TCG specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site or a Mobile Application can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this Agreement you and TCG are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and TCG might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with TCG or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if TCG makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require TCG to adhere to the language in this Provision if a dispute between us had arisen prior to the change.
TCG prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by TCG, may result in immediate termination of your access to the Sites without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms, the Sites or the Services will be heard in the courts located in Los Angeles County in the State of California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. TCG’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and TCG and supersede all prior or contemporaneous negotiations, discussions or agreements between you and TCG about the Sites and/or any Services. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If you have any questions about these Terms, you can reach us by email at [email protected] or by mail at Transom Capital Group, 100 N Pacific Coast Hwy, Suite 1725, El Segundo, CA 90245.