NOTICE: THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, INDEMNIFICATION PROVISIONS, A BINDING ARBITRATION AGREEMENT AND WAIVERS OF CLASS ACTION AND TRIAL BY JURY.
THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT. NEW JERSEY STATE RESIDENTS ARE ENCOURAGED TO REVIEW THEIR RIGHTS UNDER THE AGREEMENT, AS PROVIDED UNDER THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT WARRANTY AND NOTICE ACT (“TCCWNA”).
1. Your Consent to the Agreement; Modification. The MS Microcaps LLC Offerings (as defined below) are owned and operated by MS Microcaps, LLC (“MS Microcaps LLC,” “we,” “our” or “us”). You agree to the terms and conditions contained in the Agreement, in their entirety, when you (“User”): (a) access and/or use the MS Microcaps LLC websites located at https://msmicrocaps.net and https://msmicrocap-active.com (the “Site(s)”); (b) access certain text, images, video, audio, testimonials, blog posts and other content and information relating to investment opportunities, financial data and analysis, as well as information relating to the MS Microcaps LLC Offerings, generally, as made available by: (i) MS Microcaps LLC (collectively, “MS Microcaps LLC Content”); (ii) Members (as defined below) (“Member Content”); and (iii) other third-parties (“Third-Party Content,” and together with the MS Microcaps LLC Content and Member Content, the “Content”); (c) access links to third-party websites and resources (“Third-Party Links”); (d) access, view and/or download videos featuring executives from third-party companies; (e) register, for a fee, to establish a MS Microcaps LLC account (“Account”) as a premium member (“Membership”) of the Site (“Member”), which enables Members to: (i) receive exclusive access to a model active portfolio (“Active Portfolio”) ; (ii) receive exclusive email alerts delivered by MS Microcaps LLC from time-to-time (“Special Email,”); and (iii) obtain access to the MS Microcaps LLC exclusive Slack channels, which contains the active portfolio alongside other exlcusive content (“MS Slack Channel”); (f) access certain message boards, comment sections, messaging functionality and other interactive features of the MS Microcaps LLC Offerings (“Interactive Services”); (g) register for the free email newsletter available to all Users (“Newsletter”); (h) access links to the MS Microcaps LLC and/or User social media pages/accounts appearing on third-party social media websites (collectively, “Social Media Pages”), such as Facebook®, LinkedIn® and Twitter® (collectively, “Social Media Websites,” and together with the Site, Content, Active Portfolio, Special Email, MS Slack Channel, Interactive Services and Newsletter, the “MS Microcaps LLC Offerings”); and/or (i) otherwise affirmatively consent to these Terms and/or the Agreement.
These Terms are effective as of the date set forth above. Please print the Agreement for your records. A printed version of the Agreement will be valid, enforceable, and admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as a paper agreement that you sign manually. Violations of the Agreement may result in suspension or termination of your Account.
We may amend the Agreement from time to time in our sole discretion, without specific notice to our Users; provided, however, that: (i) any amendment or modification to the arbitration provisions, prohibition on class action Provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (ii) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site, and Users should review the Agreement in its entirety prior to using any MS Microcaps LLC Offerings. By a User’s continued use of any MS Microcaps LLC Offerings, that User hereby agrees to comply with all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
Facebook® is a registered trademark of Facebook, Inc. (“Facebook”). LinkedIn® is a registered trademark of LinkedIn Corporation (“LinkedIn”). Twitter® is a registered trademark of Twitter, Inc. (“Twitter”). Please be advised that Company is not in any way affiliated with Facebook, LinkedIn or Twitter, nor are the Site Offerings endorsed, administered or sponsored by any of the foregoing entities.
Please be advised that MS Microcaps LLC is a research and publishing firm, of general and regular circulation, which falls within the publisher’s exemption to the definition of an “investment advisor” under Section 202(a)(11)(A) – (E) of the Securities Act (15 U.S.C. 77d(a)(6) (the “Securities Act”). MS Microcaps LLC is not registered as an investment advisor under the Securities Act or under any state laws. None of our trading or investing information, including the Content, MS Microcaps LLC Email and/or content or communication (collectively, “Information”) provides individualized trading or investment advice and should not be construed as such. Accordingly, please do not attempt to contact MS Microcaps LLC, its members, partners, affiliates, employees, consultants and/or hedge funds managed by partners of MS Microcaps LLC (collectively, the “MS Microcaps LLC Parties”) to request personalized investment advice, which they cannot provide. The Information does not reflect the views or opinions of any other publication or newsletter.
We publish Information regarding certain stocks, options, futures, bonds, derivatives, commodities, currencies and/or other securities (collectively, “Securities”) that we believe may interest our Users. The Information is provided for information purposes only, and MS Microcaps LLC is not engaged in rendering investment advice or providing investment-related recommendations, nor does MS Microcaps LLC solicit the purchase of or sale of, or offer any, Securities featured by and/or through the MS Microcaps LLC Offerings and nothing we do and no element of the MS Microcaps LLC Offerings should be construed as such. Without limiting the foregoing, the Information is not intended to be construed as a recommendation to buy, hold or sell any specific Securities, or otherwise invest in any specific Securities. Trading in Securities involves risk and volatility. Past results are not necessarily indicative of future performance.
The Information represents an expression of our opinions, which we have based upon generally available information, field research, inferences and deductions through our due diligence and analytical processes. Due to the fact that opinions and market conditions change over time, opinions made available by and through the MS Microcaps LLC Offerings may differ from time-to-time, and varying opinions may also be included in the MS Microcaps LLC Offerings simultaneously. To the best of our ability and belief, all Information is accurate and reliable, and has been obtained from public sources that we believe to be accurate and reliable, and who are not insiders or connected persons of the applicable Securities covered or who may otherwise owe any fiduciary duty or duty of confidentiality to the issuer. However, such Information is presented on an “as is,” “as available” basis, without warranty of any kind, whether express or implied. MS Microcaps LLC makes no representation, express or implied, as to the accuracy, timeliness or completeness of any such Information or with regard to the results to be obtained from its use. All expressions of opinion are subject to change without notice, and MS Microcaps LLC does not undertake to update or supplement any of the Information.
The Information may include, or may be based upon, “Forward-Looking” statements as defined in the Securities Litigation Reform Act of 1995. Forward-Looking statements may convey our expectations or forecasts of future events, and you can identify such statements: (a) because they do not strictly relate to historical or current facts; (b) because they use such words such as “anticipate,” “estimate,” “expect(s),” “project,” “intend,” “plan,” “believe,” “may,” “will,” “should,” “anticipates” or the negative thereof or other similar terms; or (c) because of language used in discussions, broadcasts or trade ideas that involve risks and uncertainties, in connection with a description of potential earnings or financial performance. There exists a variety of risks/uncertainties that may cause actual results to differ from the Forward-Looking statements. We do not assume any obligation to update any Forward-Looking statements whether as a result of new information, future events or otherwise, and such statements are current only as of the date they are made.
You acknowledge and agree that use of MS Microcaps LLC Information is at your own risk. In no event will MS Microcaps LLC or any affiliated party be liable for any direct or indirect trading losses caused by any Information featured by and through the MS Microcaps LLC Offerings. You agree to do your own research and due diligence before making any investment decision with respect to Securities featured by and through the MS Microcaps LLC Offerings. You represent to MS Microcaps LLC that you have sufficient investment sophistication to critically assess the Information. If you choose to engage in trading or investing that you do not fully understand, we may not advise you regarding the applicable trade or investment. We also may not directly discuss personal trading or investing ideas with you. The Information made available by and through the MS Microcaps LLC Offerings is not a substitute for professional financial advice. You should always check with your professional financial, legal and tax advisors to be sure that any Securities, investments, advice, products and/or services featured by and through the MS Microcaps LLC Offerings, as well as any associated risks, are appropriate for you.
You further agree that you will not distribute, share or otherwise communicate any Information to any third-party unless that party has agreed to be bound by the terms and conditions set forth in the Agreement including, without limitation, all disclaimers associated therewith. If you obtain Information as an agent for any third-party, you agree that you are binding that third-party to the terms and conditions set forth in the Agreement.
Unless otherwise noted and/or explicitly disclosed, you should assume that as of the publication date of the applicable Information, MS Microcaps LLC (along with or by and through any MS Microcaps LLC Party(ies)), together with its clients and/or investors, has an investment position in all Securities featured by and through the MS Microcaps LLC Offerings, and therefore stands to realize significant gains in the event that the price of such Securities change in connection with the Information. We intend to continue transacting in the Securities featured by and through the MS Microcaps LLC Offerings for an indefinite period, and we may be long, short or neutral at any time, regardless of any related Information that is published from time-to-time.
Maj Soueidan, our President, publishes certain Content on his page of the Site. Any statement regarding his, or any other MS Microcaps LLC Party’s, willingness to share her/his/its personal investing strategies should not be construed or interpreted: (a) to require the disclosure of investment and strategies that are personal in nature, part of their respective estate or tax planning; or (b) as immaterial to the scope and nature of our educational philosophy and vision.
If you are located in the United Kingdom, you confirm that you are accessing research and materials as or on behalf of: (i) an investment professional falling within Article 19 of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “FPO”); or (ii) high net worth entity falling within Article 49 of the FPO.
Please be advised that Users may post information, opinions and other materials by and through the Interactive Services that is/are misleading, deceptive and/or inaccurate. The U.S. Securities and Exchange Commission (“SEC”) has published examples of Securities-related Cyberfraud. The Financial Industry Regulatory Authority (“FINRA”) has provided information regarding how to invest carefully in the digital space and the North American Securities Administrators Association (“NASAA”) also provides information on online investment schemes. The SEC, FINRA and NASAA websites are located at: http://www.sec.gov, http://www.finra.org, and http://www.nasaa.org, respectively.
By subscribing to MS Microcaps LLC’s product, you accept the following terms.
The Web Site makes information from third parties available, including articles, news reports, calculation tools, company information and data about financial markets, including the New York Stock Exchange and other financial markets and other data (the “Third Party Content”).
You acknowledge and agree that the Third Party Content is not created or endorsed by MS Microcaps LLC. The provision of Third Party Content is for general informational purposes only and does not constitute a recommendation or solicitation to purchase or sell any security or make any other type of investment or investment decision. In addition, the Third Party Content is not intended to provide tax, legal or investment advice.
You acknowledge that the Third Party Content provided to me is obtained from sources believed to be reliable and that no guarantees are made by the Web Site or the providers of the Third Party Content as to its accuracy, completeness, timeliness. You agree not to hold MS Microcaps LLC, any business offering products or services through the Web Site or any provider of Third Party Content liable for any investment decision or other transaction you may make based on your reliance on or use of such data, or any liability that may arise due to delays or interruptions in the delivery of the Third Party Content for any reason.
As a condition of your use of products from MS Microcaps LLC, you agree to indemnify, defend and hold us, our officers, directors, employees, agents and representatives harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), or other expenses that arise directly or indirectly out of or from (a) your violation of the TOU; (b) your use of the Site; (c) your violation of the rights of any third party, or (d) any claim that one of Your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these TOU and your use of the Site.
THERE IS NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS FOR A PARTICULAR USE, AND NO WARRANTY OF NON-INFRINGEMENT. THERE IS NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THIRD PARTY CONTENT.
3. Requirements; Necessary Equipment; Data Charges. The Site Offerings are available only to individuals who: (a) can enter into legally binding contracts under applicable law; (b) are eighteen (18) years of age or older (or the applicable age of majority, if greater than eighteen (18) years of age in their jurisdiction of residence); and (c) are either acting in their individual capacity or are acting in their capacity as duly authorized representatives of a valid business entity (“Entity”) (collectively, “Usage Requirements”). The Site Offerings are not intended for individuals who do not satisfy the Usage Requirements, including individuals under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in their jurisdiction of residence), individuals who cannot enter into legally binding contracts under applicable law and/or individuals attempting to register on behalf of an Entity who are not duly authorized representatives of that Entity. If a User does not satisfy the Usage Requirements in their entirety, that User does not have permission to access or use the Site Offerings. If you do not satisfy all of the Eligibility Requirements, you may not access the MS Microcaps LLC Offerings.
You shall be responsible, at all times, for ensuring that you have an Internet connection, computer/mobile device, mobile telephone number, up-to-date Internet browser versions, a functioning e-mail account, applicable software, applicable hardware and/or other equipment necessary to access the MS Microcaps LLC Offerings. MS Microcaps LLC does not guarantee the quality, speed or availability of the Internet connection associated with your mobile device and/or computer. MS Microcaps LLC does not guarantee that the MS Microcaps LLC Offerings can be accessed: (i) on all Mobile Devices; (ii) through all wireless service plans; (iii) in connection with all Internet browsers; and/or (iv) in all geographical areas. Standard messaging, data and wireless access fees may apply to your use of the MS Microcaps LLC Offerings. You are fully responsible for all such charges and MS Microcaps LLC has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier.
4. Registration; Termination of Accounts. In order to open an Account and utilize certain of the MS Microcaps LLC Offerings, you may be required to submit one or more registration forms (each, a “Form”). The information that you must supply on a Form may include, without limitation: (a) your full name; (b) your mailing/billing address; (c) your e-mail address; (d) your telephone number; (e) your credit card information (where purchasing a Membership subscription); and/or (f) any other information requested by us on the applicable registration Form (collectively, “Registration Data”). Each User agrees to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain it in an up to date and accurate fashion.
MS Microcaps LLC may reject a prospective Member’s Form and/or terminate a Member’s Account at any time and for any reason, in its sole discretion. Such reasons may include, without limitation, where: (i) MS Microcaps LLC believes that such prospective Member/Member is in any way in breach of the Agreement; (ii) MS Microcaps LLC believes that such prospective Member/Member is engaged in any improper and/or unauthorized conduct in connection with the MS Microcaps LLC Offerings; and/or (iii) MS Microcaps LLC believes that such prospective Member/Member is, at any time, engaged in any activity by and/or through the MS Microcaps LLC Offerings that may violate any applicable law.
As part of the registration process, prospective Members will be provided with, or must select, a user name and/or password for their Account. If the user name(s)/password(s) that a prospective Member requests is/are not available, that prospective Member will be asked to supply another user name/password. If MS Microcaps LLC provides a prospective Member with a user name/password, that prospective Member can change that user name and/or password, or the one that the prospective Member selected during registration, at any time through her/his Account settings. We may, in our sole discretion, reject, change, suspend and/or terminate any user name. Profanity, obscenities, or the use of **asterisks** or other “masking” characters to disguise such words, is not permitted. Impersonating other Members is prohibited. Each Member agrees to notify MS Microcaps LLC of any known or suspected unauthorized use(s) of her/his Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of her/his user name(s)/password(s). Each Member shall be responsible for maintaining the confidentiality of her/his user name(s)/password(s) and Account. Each Member agrees to accept responsibility for all activities that occur through use of her/his user name(s)/password(s) and Account, including any charges incurred therethrough. Any fraudulent, abusive or otherwise illegal activity engaged in by any Member, or any entity or person with access to that Member’s user name(s)/password(s) and/or Account may be grounds for termination of that Member’s Account, in MS Microcaps LLC’s™ sole discretion, and that Member may be reported to appropriate law enforcement agencies.
5. Compliance with Applicable Law. Each User represents and warrants that it and its use of the MS Microcaps LLC Offerings shall fully comply with all applicable local, state, national, federal and international laws including, without limitation, the Securities Act, the Securities Exchange Act of 1934, the Securities Litigation Reform Act of 1995 and any and all other applicable state and federal securities and banking laws (collectively, “Applicable Law”).
(a) General Terms. Subject to the terms and conditions of the Agreement, Users that possess the requisite technology shall have the opportunity to view, download and/or interact with all or some of the Content made available by and through the Site and/or other MS Microcaps LLC Offerings. The Content shall at all times remain subject to the disclaimers set forth in Section 2 of these Terms, as well as elsewhere on the Site and in the Agreement. The Content is compiled, distributed and displayed by MS Microcaps LLC, as well as third-party content providers, such as Members and third-party entities/individuals (collectively, “Third-Party Providers”). MS Microcaps LLC does not control the Content provided by Third-Party Providers that is made available by and through the MS Microcaps LLC Offerings. Please be advised that MS Microcaps LLC does not verify or fact-check statements made by Third-Party Providers in connection with the Content. Such Third-Party Providers are solely responsible for the accuracy, completeness, appropriateness, safety and/or usefulness of such Content. The Content should not necessarily be relied upon. MS Microcaps LLC does not represent or warrant that the Content and other information posted by and/or through the MS Microcaps LLC Offerings is accurate, complete, up-to-date or appropriate. Users understand and agree that MS Microcaps LLC will not be responsible for, and MS Microcaps LLC undertakes no responsibility to monitor or otherwise police, Content provided by Third-Party Providers. Users agree that MS Microcaps LLC shall have no obligation and incur no liability to such Users in connection with any Content. Users may find certain Content to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety when using the Content.
(b) Member Content. From time-to-time, MS Microcaps LLC may publish articles, text, graphics, video and other Member Content by and through the MS Microcaps LLC Offerings. Please be advised that MS Microcaps LLC may offer a free Membership to certain individuals in exchange for the submission of Member Content. Each Member who makes Member Content available to MS Microcaps LLC for publication by and through the MS Microcaps LLC Offerings hereby irrevocably grants to MS Microcaps LLC, for good and valuable consideration, the receipt of which is hereby acknowledged, the worldwide right and license to use, reuse and publish any and all Member Content, in any and all forms of marketing and promotional material including, without limitation, print advertisements (“ads”), online ads, ads and other promotions appearing on MS Microcaps LLC’s™ Social Media Pages and other Social Media Websites, email ads, television ads, radio ads, interactive media, as well as printed extracts and reproductions of any portion thereof (collectively, “Ads”), and for any and all other uses. Each Member who makes Member Content available to MS Microcaps LLC for publication by and through the MS Microcaps LLC Offerings represents and warrants to MS Microcaps LLC that: (i) such Member has all of the rights and authority necessary to submit the Member Content for the uses contemplated hereunder, including the right to publish the Member Content; and (ii) the publication of the Member Content by such Member, as well as MS Microcaps LLC as contemplated hereunder, will not infringe upon or violate the rights of any third-party. Each Member who makes Member Content available to MS Microcaps LLC for publication by and through the MS Microcaps LLC Offerings understands and agrees that: (A) the Member Content, in whole or in part, may be edited and/or dramatized, and that any part of the Member Content may be used without compensation to such Member; and (B) no Ad or other material incorporating or making reference to the Member Content need be submitted to such Member for approval and MS Microcaps LLC shall be without liability to such Member for any distortion or illusionary effect resulting from its publication of the Member Content. Each Member who posts Member Content expressly: (I) releases MS Microcaps LLC from any and all claims that such Member has or may have for breach of right of publicity, invasion of privacy, defamation, copyright infringement or any other claim or cause of action arising out of or in connection with any production, distribution, duplication, broadcast, exhibition, publication, Ad or promotion utilizing or incorporating the subject Member Content, or any other use of the subject Member Content whatsoever; and (II) acknowledges and agrees that MS Microcaps LLC shall not be liable for any causes of action or claims related to the applicable Member’s decision to provide the Member Content to MS Microcaps LLC.
(c) Non-Endorsement. The publication of any Content provided by Third-Party Providers (including Member Content) by and through the MS Microcaps LLC Offerings does not constitute and endorsement by MS Microcaps LLC of the subject Third-Party Provider.
8. Active Model Portfolio. The Site provides Users with the ability to register for the MS Microcaps LLC Active Model Portfolio. In connection with the Portfolio, MS Microcaps LLC shall send registered Users e-mail Content that MS Microcaps LLC believes will be of interest to those Users. The Content in the Portfolio shall at all times remain subject to the disclaimers set forth in Section 2 of these Terms, as well as elsewhere on the Site and in the Agreement. You understand and agree that MS Microcaps LLC shall not be liable to you, any other User, Member or any third-party for any claim in connection with your use of, or inability to use, the Newsletter.
9. Slack Channel. Members will have access to the exclusive MS Microcaps LLC Slack Channel. The Channel shall contain a catalogue of changes to MS Microcaps LLC Active Portfolio, as well as other exclusive Content that MS Microcaps LLC believes will be of interest to those Members. The Content made available by and through the Slack Channel shall at all times remain subject to the disclaimers set forth in Section 2 of these Terms, as well as elsewhere on the Site and in the Agreement. You understand and agree that MS Microcaps LLC shall not be liable to you, any other Member, User or any third-party for any claim in connection with your use of, or inability to use, the Slack Channel.
11. Account and Billing Provisions.
(a) Purchasing Membership Subscriptions. Where a User wishes to become a Member, and upon completing the applicable Form associated with registering as a Member, will be charged either the bi-annual or annual Membership fee, as applicable, on a recurring basis for as long as that Member’s Account remains active (the “Fees”). Such Fees will be charged in advance and you acknowledge and agree that MS Microcaps LLC will not obtain any additional authorization from you for the recurring Fees. Every time that you use your Member Account, you re-affirm that MS Microcaps LLC is authorized to charge your Payment Method and to have the Fees applied to same.
Charges will appear on your Payment Method statement through the identifier “MS Microcaps LLC.” By providing us with a Payment Method, you: (i) represent that you are authorized to use the Payment Method that you provided and that any payment information that you provide is true and accurate; and (ii) authorize us to charge the Fees to your Payment Method. You must promptly notify us of any changes to your Payment Method. Any attempt to defraud through the use of any Payment Method, regardless of the outcome, or any failure by you to honor legitimate charges or requests for payment, will result in immediate termination of your Account and pursuit of civil litigation and/or criminal prosecution. UNLESS OTHERWISE INDICATED ON THE SITE, ALL FEES ARE FINAL AND NON-REFUNDABLE.
(b) General Billing Provisions. Subject to the conditions set forth herein, you agree to be bound by the Billing Provisions of MS Microcaps LLC in effect at any given time. Upon reasonable prior written notice to you (with e-mail sufficing), MS Microcaps LLC reserves the right to change its Billing Provisions whenever necessary, in its sole discretion. Subsequent payment of Fees after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any Fees incurred prior to the applicable amendment or modification. MS Microcaps LLC’s authorization to bill for purchases is obtained by way of your electronic signature. Once an electronic signature is submitted, the electronic order constitutes an electronic letter of agency. MS Microcaps LLC’s reliance upon your electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively. Both laws specifically preempt all state laws that recognize only paper and handwritten signatures.
(c) Cancellation of Your Account. You may cancel your Account at any time and for any reason by requesting a closure of your Account by emailing us at: email@example.com. The subject line for such Account closure should read “Re: Account Closure.” Upon cancellation or termination of your Account for any reason, you must immediately cease all use of those MS Microcaps LLC Offerings that are available to Members only. All terms and conditions contained in the Agreement that are unrelated to MS Microcaps LLC Offerings including, without limitation, disclaimers, limits of liability, dispute resolution, indemnity, copyright notice, and your obligation to pay any amounts due hereunder, will survive any cancellation or termination of your Account. MS Microcaps LLC will retain pertinent Account information for as long as required by law.
12. Interactive Services.
(a) Subject to the restrictions contained herein including, without limitation, those contained below, the Interactive Services may allow Users to post comments, text, video, and content and engage in other interactive communication, by and through the MS Microcaps LLC Offerings. In connection with the Interactive Services, each User shall be solely responsible for the comments, opinions, statements, offers, propositions, feedback and other content (collectively, “Feedback”) posted by and through the Interactive Services. MS Microcaps LLC reserves the right to prohibit any conduct by Users, or to remove any materials or Feedback posted by Users by and through the Interactive Services, that MS Microcaps LLC deems, in its sole and absolute discretion, to be in violation of the Agreement and/or which MS Microcaps LLC believes to be illegal, potentially harmful to others, otherwise objectionable or that same may expose MS Microcaps LLC to harm, damage to reputation or liability. Notwithstanding the foregoing, MS Microcaps LLC undertakes no responsibility to monitor or otherwise police the actions of Users, Feedback and/or other material posted by Users and/or other third parties. MS Microcaps LLC shall have no obligation and incur no liability to such Users in connection with any Feedback. Users may find certain Feedback to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety when viewing Feedback. You agree to use the Interactive Services in a manner consistent with, and in full compliance with, any and all applicable laws and regulations.
(b) In connection with your use of the Interactive Services and other of the MS Microcaps LLC Offerings, you agree not to: (i) display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third party; (ii) display any audio files, text, photographs, videos or other images containing confidential information; (iii) display any audio files, text, photographs, videos or other images that may be deemed indecent or obscene in your community, as defined under applicable law; (iv) impersonate any person or entity; (v) “stalk” or otherwise harass any person; (vi) engage in unauthorized advertising to, or commercial solicitation of, other Users; (vii) transmit any chain letters, spam or junk e-mail to other Users; (viii) express or imply that any statements that you make are endorsed by MS Microcaps LLC, without MS Microcaps LLC’s specific prior written consent; (ix) harvest or collect personal information of other Users whether or not for commercial purposes, without their express consent; (x) use any robot, spider, 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 MS Microcaps LLC Offerings; (xi) post, distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (xii) remove any copyright, trademark or other proprietary rights notices contained on the Site; (xiii) interfere with or disrupt the MS Microcaps LLC Offerings and/or the servers or networks connected to same; (xiv) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xv) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to mobile networks; (xvi) “frame” or “mirror” any part of the Site without MS Microcaps LLC’s prior written authorization; (xvii) use metatags or code or other devices containing any reference to any MS Microcaps LLC Offerings in order to direct any person to any other mobile application or website for any purpose; and/or (xviii) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the MS Microcaps LLC Offerings or any software used in or in connection with the MS Microcaps LLC Offerings. MS Microcaps LLC reserves the right to pursue any and all legal remedies against Users that engage in the aforementioned prohibited conduct.
13. Social Media Pages. The Site contains links to the various MS Microcaps LLC Social Media Pages. The Social Media Pages are hosted and made available on third-party Social Media Websites by third-party entities. Your use of Social Media Pages and Social Media Websites shall be governed by those Social Media Websites’ applicable agreements, terms and conditions. You understand and agree that MS Microcaps LLC shall not be liable to you, any other User or any third-party for any claim in connection with your use of, or inability to use, the Social Media Pages and/or Social Media Websites.
14. Ownership. The MS Microcaps LLC Offerings, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to same, and all MS Microcaps LLC logos, symbols, expansion names and symbols, play level symbols, trade dress or “look and feel,” and all derivative works or modifications of/to any of the foregoing, and all related and underlying intellectual property (including, without limitation, patents, trademarks, trade secrets and copyrights), are the sole and exclusive property of MS Microcaps LLC. We reserve all rights not expressly granted herein. Except as expressly set forth herein, no right or license is granted hereunder, express or implied or by way of estoppel, to any intellectual property rights and your use of the MS Microcaps LLC Offerings does not convey or imply the right to use the MS Microcaps LLC Offerings in combination with any other information or products. The posting of information or material by and through the MS Microcaps LLC Offerings does not constitute a waiver of any right in or to such information and/or materials. The “MS Microcaps LLC” name and logo are trademarks of MS Microcaps LLC, LLC. The use of any MS Microcaps LLC trademark without MS Microcaps LLC’s™ express written consent is strictly prohibited.
15. License. Each User is granted a non-exclusive, non-transferable, revocable and limited license to access and use the MS Microcaps LLC Offerings. MS Microcaps LLC may terminate this license at any time for any reason. Unless otherwise expressly authorized by MS Microcaps LLC in writing in each instance, Users may only use the MS Microcaps LLC Offerings for their own personal, non-commercial use. No part of the MS Microcaps LLC Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. No User or other third-party may use any automated means or form of scraping or data extraction to access, query or otherwise collect material from the MS Microcaps LLC Offerings except as expressly permitted by MS Microcaps LLC. No User or other third-party may use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the MS Microcaps LLC Offerings, or any portion thereof. No User or other third-party may create any “derivative works” by altering any aspect of the MS Microcaps LLC Offerings. No User or other third-party may use the MS Microcaps LLC Offerings in conjunction with any other third-party content. No User or other third-party may exploit any aspect of the MS Microcaps LLC Offerings for any commercial purposes not expressly permitted by MS Microcaps LLC. Each User further agrees to indemnify and hold MS Microcaps LLC harmless for that User’s failure to comply with this Section 15. MS Microcaps LLC reserves any rights not explicitly granted in the Agreement.
16. Prohibited Conduct.
(a) Abuse. In accessing the MS Microcaps LLC Offerings, you represent and warrant to us that you: (i) will not engage in any activity that interrupts or attempts to interrupt the operation of the MS Microcaps LLC Offerings; (ii) will not engage in any money laundering or similar behavior; (iii) will not engage in the sale or brokering of any securities, debt instruments, investment opportunities or similar commercial endeavors; and (iv) will comply with the rules, regulations and policies applicable to any applicable Social Media Websites.
(b) Hacking, Tampering or Unauthorized Access. Any attempt to gain unauthorized access to our systems or any other User’s Account, interfere with procedures or performance of any MS Microcaps LLC Offerings, or deliberately damage or undermine any MS Microcaps LLC Offerings is subject to civil and/or criminal prosecution and will result in immediate termination of your Account. You acknowledge that we are not responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access to or use of the MS Microcaps LLC Offerings or your Account.
(c) Restrictions. Any use, reproduction or redistribution of the MS Microcaps LLC Offerings, or related services not expressly authorized by the Agreement is expressly prohibited. You may not engage in, or assist others in engaging in, conduct that would damage or impair our property including, without limitation: (i) copying, distributing, transmitting, displaying, performing, framing, linking, hosting, caching, reproducing, publishing, licensing, or creating derivative works from any information, software, products or services obtained from us; (ii) providing unauthorized means through which others may use the MS Microcaps LLC Offerings, such as through server emulators; (iii) taking actions that impose an unreasonable or disproportionately large load on our or our suppliers’ network infrastructure, or that could damage, disable, overburden or impair the MS Microcaps LLC Offerings; (iv) interfering with any other party’s use and/or enjoyment of the MS Microcaps LLC Offerings; and/or (v) attempting to gain unauthorized access to third-party Accounts and/or the MS Microcaps LLC Offerings.
17. Disclaimers. WITHOUT LIMITING ANY OF THE DISCLAIMERS SET FORTH IN SECTION 2 OF THESE TERMS, OR APPEARING ELSEWHERE ON THE SITE AND/OR IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LEGALITY OF YOUR USE OF THE MS Microcaps LLC OFFERINGS, OR RELATED SERVICES, AND NO PERSON AFFILIATED, OR CLAIMING AFFILIATION, WITH US SHALL HAVE THE AUTHORITY TO MAKE ANY SUCH REPRESENTATIONS OR WARRANTIES.
THE MS MICROCAPS LLC OFFERINGS, AND ALL RELATED DOWNLOADS, SERVICES, PRODUCTS, INFORMATION, CONTENT AND DATA MADE AVAILABLE BY OR THROUGH THE MS Microcaps LLC OFFERINGS ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE BASIS,” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR FREEDOM FROM VIRUS OR OTHER DISABLING ROUTINE, OR INTERRUPTION, OR NON-INFRINGEMENT, AND YOU ASSUME THE ENTIRE RISK WITH RESPECT THERETO. USE OF THE INTERNET AND TELECOMMUNICATIONS SYSTEMS IS INHERENTLY RISKY, AND YOU DO SO AT YOUR OWN RISK.
WITHOUT LIMITING THE FOREGOING, MS MICROCAPS LLC MAKES NO WARRANTY THAT: (A) THE MS MICROCAPS LLC OFFERINGS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (B) ANY INFORMATION OBTAINED THROUGH THE MS MS MICROCAPS LLC OFFERINGS (INCLUDING THE CONTENT) WILL BE ACCURATE OR RELIABLE; (C) ANY DEFECTS IN THE MS Microcaps LLC OFFERINGS WILL BE CORRECTED; (D) THE MS MICROCAPS LLC OFFERINGS WILL BE COMPATIBLE WITH ANY SPECIFIC PC, HARDWARE, MOBILE DEVICE, WIRELESS NETWORK OR SERVICE; (E) THE MS MICROCAPS LLC OFFERINGS WILL BE FREE FROM TECHNICAL ERROR, OR OTHER ERROR OF ANY KIND, WHETHER HUMAN, MECHANICAL OR ELECTRONIC; (F) THE MS MICROCAPS LLC OFFERINGS WILL RESULT IN ANY POSITIVE INVESTMENT OUTCOME, ECONOMIC BENEFIT OR GAIN; OR (G) THE MS MICROCAPS LLC OFFERINGS WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MS MICROCAPS LLC AND/OR THROUGH THE MS Microcaps LLC OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM, RELATING TO OR ARISING OUT OF VIOLATIONS OF THE AGREEMENT BY OTHER USERS AND/OR MEMBERS AND WE HAVE NO RESPONSIBILITY TO ENFORCE THE AGREEMENT FOR THE BENEFIT OF ANY USER.
SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. AS SUCH, THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU IN ITS ENTIRETY.
18. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE MS MICROCAPS LLC PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF THE APPLICABLE MS MICROCAPS LLC LLC PARTY(IES) HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY, ARISING OUT OF OR RELATING TO THE AGREEMENT, THE MS MICROCAPS LLC OFFERINGS, OR ANY INFORMATION, SERVICES, PRODUCTS OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU BY AND THROUGH SAME, INCLUDING, BUT NOT LIMITED TO, FOR: (A) THE USE OR THE INABILITY TO USE THE MS Microcaps LLC OFFERINGS; (B) UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR REGISTRATION DATA AND/OR ACCOUNT; (C) ANY ISSUE RELATED TO THE TIMELINESS, ACCURACY OR RELIABILITY OF THE MS MICROCAPS LLC OFFERINGS INCLUDING, WITHOUT LIMITATION, THE INFORMATION AND CONTENT; (D) YOUR FAILURE TO REALIZE ANY DESIRED INVESTMENT OUTCOME, ECONOMIC BENEFIT OR GAIN; (E) ANY TECHNICAL ERROR OR OTHER ERROR OF ANY KIND, WHETHER HUMAN, MECHANICAL OR ELECTRONIC, ASSOCIATED WITH ANY OF THE MS MICROCAPS LLC OFFERINGS; AND/OR (F) ANY OTHER MATTER RELATING TO THE MS MICROCAPS LLC OFFERINGS.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM LIABILITY OF THE MS MICROCAPS LLC PARTIES TO YOU ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT, THE MS MICROCAPS LLC OFFERINGS, OR ANY INFORMATION, SERVICES, PRODUCTS OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU BY AND THROUGH SAME SHALL NOT EXCEED FIVE HUNDRED DOLLARS ($500.00). THE EXISTENCE OF ONE OR MORE CLAIMS BY YOU WILL NOT INCREASE THE LIABILITY OF THE MS MICROCAPS LLC PARTIES.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES. AS SUCH, THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 18 MAY NOT APPLY TO YOU.
(a) Technical Difficulties. We are not responsible for delays, disruptions, malfunctions or other technical interruptions that affect the MS Microcaps LLC Offerings including, without limitation, problems with the Site, computer systems, telephone carriers or Internet service providers, or the quality of coverage, strength of signal, delays or outages in service.
(b) Third-Party Websites. You may be able to access third-party websites or services via the Site including, without limitation, Social Media Websites, the Third-Party Links and the websites of other Members. We are not responsible for third-party websites, services or content available through those third-party websites. You are solely responsible for your dealings with third-parties (including advertisers). Your use of third-party software, websites or services may be subject to those third-parties’ terms and conditions and privacy policies. Please review those legal policies before using any linked websites.
(d) Representations and Warranties. Each User hereby represents and warrants to MS Microcaps LLC as follows: (i) the Agreement constitutes such User’s legal, valid and binding obligation which is fully enforceable against such User in accordance with its terms; (ii) such User understands and agrees that such User has independently evaluated the desirability of utilizing the MS Microcaps LLC Offerings and that such User has not relied on any representation and/or warranty other than those set forth in the Agreement; (iii) the execution, delivery and performance by such User of the Agreement will not conflict with or violate: (A) any order, judgment or decree applicable to such User; or (B) any agreement or other instrument applicable to such User; (iv) such User’s performance under the Agreement, use of the MS Microcaps LLC Offerings, Member Content, if any, and Feedback, if any, will not: (A) invade the right of privacy or publicity of any third person; (B) involve any libelous, obscene, indecent or otherwise unlawful material; (C) violate any Applicable Law; and/or (D) otherwise infringe upon the rights of any third-parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity; and (v) such User shall not “stalk” or otherwise harass any person.
(e) Our Rights and Remedies; No Waiver. No MS Microcaps LLC right or remedy shall be exclusive of any other, whether at law or in equity including, without limitation, damages, injunctive relief, attorneys’ fees and expenses. Our failure to require or enforce strict performance by you of any of the terms and conditions contained in the Agreement, or to exercise any right under same, shall not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance.
(f) Assignment. We may assign the Agreement, and any rights and obligations hereunder, in whole or in part, at any time without notice to you. You may not assign the Agreement or transfer any rights to use the MS Microcaps LLC Offerings.
(g) Severability. The Agreement is intended to be severable. If for any reason any terms and/or conditions contained in the Agreement are held invalid or unenforceable in whole or in part by any court of competent jurisdiction, such terms and/or conditions shall, in such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Agreement, which shall continue to be binding.
(h) No Third-Party Beneficiaries. The Agreement is solely for your and our benefit, and not for the benefit of any other person, except for our successors and assigns.
(i) Indemnification. You agree, at your own cost and expense, to indemnify and hold the MS Microcaps LLC Parties harmless from and against any and all claims, disputes, liabilities, judgments, settlements, actions, debts or rights of action, losses of whatever kind, and all
and fees, including reasonable legal and attorneys’ fees, arising out of or relating to: (i) your breach of the Agreement; (ii) any unauthorized or improper use of your Account and/or the MS Microcaps LLC Offerings by any person, including yourself; (iii) your violation of Applicable Law; (iv) any failure by you to provide accurate and up-to-date Registration Data; (v) your Member Content and/or Feedback, if any; and/or (vi) your negligence or misconduct. If we instruct you in writing, you will, at your cost and expense, defend us from any of the foregoing using counsel reasonably acceptable to us.
(j) California User Consumer Rights. In accordance with Cal. Civ. Code Sec. 1789.3, California State resident Users may file grievances and complaints with the California Department of Consumer Affairs, 400 R Street, Ste. 1080, Sacramento, CA 95814; or by phone at 916-445-1254 or 800-952-5210; or by email to firstname.lastname@example.org.
(k) Conflicting Terms. To the extent that anything in or associated with the MS Microcaps LLC Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
20. Copyright Policy/DMCA Compliance. MS Microcaps LLC reserves the right to terminate the Account of any Member who infringes upon third-party copyrights. If any User or other third-party believes that a copyrighted work has been copied and/or posted via the MS Microcaps LLC Offerings in a way that constitutes copyright infringement, that party should provide MS Microcaps LLC with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location of the copyrighted work that such party claims has been infringed upon; (c) a written statement by such party that it has a good faith belief that the disputed use is not authorized by the owner, its agent or the law; (d) such party’s name and contact information, such as telephone number or e-mail address; and (e) a statement by such party that the above information in such party’s notice is accurate and, under penalty of perjury, that such party is the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for MS Microcaps LLC Copyright Agent for notice of claims of copyright infringement is as follows:
[Klein Moynihan Turco LLP
Attn: Copyright Attorney
450 Seventh Avenue, 40th Floor
New York, NY 10123
Fax: (212) 216-9559]
21. Dispute Resolution, Class Action Waiver and Arbitration. The Agreement shall be treated as though it were executed and performed in New York, NY and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). Should a dispute arise concerning the MS Microcaps LLC Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties agree to submit their dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties; and (b) each User agrees to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found Here. We may choose to provide petitioning Users with a final written settlement offer after receiving such User’s Initial Dispute Notice (“Final Settlement Offer”). If we provide a petitioning User with a Final Settlement Offer and that User does not accept it, or we cannot otherwise satisfactorily resolve that User’s dispute and that User wishes to proceed, that User must submit its dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in that User’s county of residence, by filing a separate Demand for Arbitration, which is available Here. If the arbitrator awards a User relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if that User retained an attorney to represent it in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that such User’s attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from any User unless the arbitrator determines that such User’s claim was frivolous.
To the extent permitted by law, each User agrees that it will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that it may have against MS Microcaps LLC and/or its employees, officers, directors, members, representatives and/or assigns. Each User agrees to the entry of injunctive relief to stop such a lawsuit or to remove it as a participant in the suit. Each User agrees to pay the attorney’s fees and court costs that MS Microcaps LLC incurs in seeking such relief. This provision preventing Users from bringing, joining or participating in class action lawsuits: (A) does not constitute a waiver of any User’s rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement. Any User may opt-out of these dispute resolution provisions by providing written notice of her/his decision within thirty (30) days of the date that it first accesses the Site.
22. Contact Us. Please send any questions or comments regarding the MS Microcaps LLC Offerings, or any other related matter (including all inquiries unrelated to copyright infringement): (a) by mail to: 300 SE 2ND STREET, FORT LAUDERDALE, FL 33301; (b) by email to: email@example.com; or (c) call us at: (267) 246-3236.