Last Updated: August 20th, 2021
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF BRACE SOFTWARE, INC., ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”), AND THE INFORMATION ON IT ARE CONTROLLED BY BRACE. THESE TERMS FORM A BINDING CONTRACT BETWEEN YOU AND BRACE SOFTWARE, INC. (“BRACE“) AND GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE OR ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH, A “SERVICE” AND COLLECTIVELY, THE “SERVICES“). BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BRACE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 12 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT-OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”
The Services consist of the following, without limitation: [a platform that integrates with our third-party partners in order to enable mortgage servicers to react promptly to a delinquency event and quickly determine the best available outcome for all parties, and software streamlining content and messaging while reducing errors and accelerating the decision-making process].
PLEASE NOTE THAT The Terms are subject to change by Brace in its sole discretion at any time. When changes are made, Brace will make a new copy of the Terms of Use available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the “Last Updated” date at the top of the Terms of Use. Any changes to the Terms will be effective immediately for new Users of the Website and/or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an email notice of such changes to Registered Users (defined in Section 2.1 below). Brace may require you to provide consent to the updated Terms in a specified manner before further use of the Website and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application, and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
The Website and the Services, and the information and content available on the Website and the Services (as these terms are defined herein) (collectively, the “Brace Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Brace grants you a limited license to reproduce portions of Brace Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Brace in a separate license, your right to use any Brace Properties is subject to the Terms.
1.1.Updates. You understand that Brace Properties are evolving. As a result, Brace may require you to accept updates to Brace Properties that you have installed on your computer or mobile device. You acknowledge and agree that Brace may update Brace Properties with or without notifying you. You may need to update third-party software from time to time in order to use Brace Properties.
1.2. Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Brace Properties or any portion of Brace Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Brace Properties (including images, text, page layout or form) of Brace; (c) you shall not use any metatags or other “hidden text” using Brace’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Brace Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Brace Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Brace Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Brace Properties. Any future release, update, or other addition to Brace Properties shall be subject to the Terms. Brace, its suppliers, and service providers reserve all rights not granted in the Terms. Any unauthorized use of Brace Properties terminates the licenses granted by Brace pursuant to the Terms.
1.3. Third-Party Materials. As a part of Brace Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Brace to monitor such materials and that you access these materials at your own risk.
2.1. Registering Your Account. In order to access certain features of Brace Properties, you will be required to become a Registered User as a Borrower, defined below. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Website (“Account“). Registered Users are borrowers (each, a “Borrower“), who receive invitations by a lender (“Lender“) to register an Account on the Website (which may be branded versions bearing the Lender’s name), pursuant to a specific registration number.
2.2. Third-Party Accounts. In order to take advantage of certain features and functions of the Services, you may be asked to connect your Account to bank accounts, personal financial mobile applications, and/or financial aggregators (“Third-Party Accounts“). You may link your account for the Services with your Third-Party Accounts for personal financial services platforms, only to the extent permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that if you allow us to access your Third-Party Account (i.e., by linking it with your account for the Services), you are entitled to disclose your third-party account login information to us and/or grant us access to your third-party account without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such third-party service providers. You acknowledge and agree that, by granting us access to any of your Third-Party Accounts, we may access, make available and store any information, data, text, sound, photographs, graphics, video, messages, tags, and/or other materials that you have provided to and/or stored in your third-party accounts relating to your use of our Services (collectively, “Third-Party Account Data“). Please note that if a Third-Party Account or associated service becomes unavailable or our access to such Third-Party account is terminated by the third-party service provider, then the Third-Party Account Data for that third-party service may no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of your Account. PLEASE NOTE THAT YOUR RELATIONSHIPS WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS ARE GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND WE DISCLAIM ANY AND ALL LIABILITY FOR INFORMATION THAT MAY BE PROVIDED BY SUCH THIRD-PARTY SERVICE PROVIDERS. Unless otherwise specified in the Terms, all Third-Party Account Data shall be considered to be Content (as defined in Section 3.1) for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Brace Properties. Brace makes no effort to review any Third-Party Account Data for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Brace is not responsible for any Third-Party Account Data.
2.3. Registration Data. In registering an account on the Website, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Brace Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Brace immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Brace has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Brace has the right to suspend or terminate your Account and refuse any and all current or future use of Brace Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time. You agree not to create an Account or use Brace Properties if you have been previously removed by Brace, or if you have been previously banned from any of Brace Properties.
2.4. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Brace.
2.5. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Brace Properties, including but not limited to, a mobile device that is suitable to connect with and use Brace Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Brace Properties. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Services. Brace will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply. You may opt out of receiving text messages from us by emailing [email protected].
3.1. Types of Content. You acknowledge that all Content, including Brace Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Brace, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available (“Make Available”) through Brace Properties (“Content”).
3.2. Storage. Unless expressly agreed to by Brace in writing elsewhere, Brace has no obligation to store any Content that you, as a Borrower, Make Available on Brace Properties. Brace has no responsibility or liability for the deletion or accuracy of any Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Brace Properties. You agree that Brace retains the right to create reasonable limits on Brace’s use and storage of the Content, such as limits on file size, storage space, processing capacity, and similar limits as determined by Brace in its sole discretion.
4.1. Brace Properties. Except with respect to Content that is Made Available through the Website or Services, you agree that Brace and its suppliers own all rights, title and interest in the Brace Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Brace Properties.
4.2. Trademarks. Brace’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with Brace Properties or in connection with the Services are the trademarks of Brace and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Brace Properties are the property of their respective owners.
4.3. Content. As a Borrower, you own all Content that you Make Available through the Services. Brace does not claim ownership of any Content. You acknowledge and agree that Make Available Content at your own risk.
4.4. License to Content. You grant Brace a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, the Content (in whole or in part) for the purposes of operating and providing Brace Properties to you. You agree that you, not Brace, are responsible for all of the Content that you Make Available on or in Brace Properties.
4.5. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Brace through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Brace has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Brace a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Brace Properties.
5.1. Cheating and Hacking. You agree that you will not, under any circumstances:
a. Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized software designed to modify or interfere with any Brace Properties;
b. Modify or cause to be modified any files that are a part of Brace Properties;
c. Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon Brace Properties, or other attempts to disrupt Brace Properties or any other person’s use or enjoyment of Brace Properties;
d. Attempt to gain unauthorized access to Brace Properties, accounts registered to others, or to the computers, servers, or networks connected to Brace Properties by any means other than the user interface provided by Brace, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of Brace Properties; or
e. Disrupt or interfere with the security of, or otherwise cause harm to, Brace Properties, systems, resources, accounts, passwords, servers, or networks connected to or accessible through Brace Properties or any affiliated or linked sites.
5.2. General. In connection with your use of Brace Properties, you shall not:
a. Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
b. Impersonate any person or entity, including, but not limited to, Brace personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
c. Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
d. Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
e. Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court; or
f. Register for more than one Account or register for an Account on behalf of an individual other than yourself.
You agree to indemnify and hold Brace, its parents, subsidiaries, affiliates, officers, employees, agents, partners, and licensors (collectively, the “Brace Parties”) harmless from any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) the Content you Make Available through the Services; (b) your use of, or inability to use, Brace Properties; (c) your violation of the Terms; (d) your violation of any rights of another party; or (e) your violation of any applicable laws, rules or regulations. Brace reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Brace in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Brace Properties.
7.1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF BRACE PROPERTIES IS AT YOUR SOLE RISK, AND BRACE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. BRACE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARISING FROM USE OF THE BRACE PROPERTIES.
a. BRACE PARTIES MAKE NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (1) BRACE PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF BRACE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF BRACE PROPERTIES WILL BE ACCURATE OR RELIABLE.
b. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH BRACE PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS BRACE PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
c. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. BRACE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BRACE OR THROUGH BRACE PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE SERVICES ARE A TECHNOLOGY PLATFORM DESIGNED TO ASSIST YOU, AS A BORROWER, IN AGGREGATING DOCUMENTS RELATING TO A POTENTIAL RESIDENTIAL HOME MORTGAGE LOAN FROM AN UNAFFILIATED THIRD-PARTY LENDER. THE SERVICES ARE NOT INTENDED TO PROVIDE AND DO NOT PROVIDE FINANCIAL, LEGAL, TAX, INVESTMENT OR INSURANCE ADVICE. YOU SHOULD CONSULT YOUR FINANCIAL, LEGAL OR TAX ADVISORS REGARDING ANY QUESTIONS RELATED TO ANY TRANSACTION OR INVESTMENT. THERE IS NO WARRANTY THAT YOUR USE OF THE SERVICES WILL RESULT IN ANY LENDER ACCEPTING YOUR APPLICATION FOR A LOAN.
8.1. No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF BRACE PROPERTIES. YOU UNDERSTAND THAT BRACE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF BRACE PROPERTIES.
8.2. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL BRACE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH BRACE PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT BRACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF BRACE PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE BRACE PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH BRACE PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON BRACE PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO BRACE PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A BRACE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A BRACE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A BRACE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.3. Cap on Liability. UNDER NO CIRCUMSTANCES WILL BRACE PARTIES BE LIABLE TO YOU FOR MORE THAN ONE DOLLAR ($1). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A BRACE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A BRACE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A BRACE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.4. User Content. EXCEPT FOR BRACE’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN BRACE’S PRIVACY POLICY, BRACE ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
8.5. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BRACE AND YOU.
9. Remedies.
9.1. Violations. If Brace becomes aware of any possible violations by you of the Terms, Brace reserves the right to investigate such violations. If, as a result of the investigation, Brace believes that criminal activity has occurred, Brace reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Brace is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Brace Properties, including Content, in Brace’s possession in connection with your use of Brace Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Content you Made Available violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Brace, its users or the public, and all enforcement or other government officials, as Brace in its sole discretion believes to be necessary or appropriate.
9.2. Breach. In the event that Brace determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Brace Properties, Brace reserves the right to:
a. Warn you via email (to any email address you have provided to Brace) that you have violated the Terms;
b. Delete any Content provided by you, as a Borrower, to Brace Properties;
c. Discontinue your registration(s) with the any of Brace Properties, including any Services;
d. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
e. Pursue any other action which Brace deems to be appropriate.
10.1. Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Brace Properties, unless terminated earlier in accordance with the Terms.
10.2. Termination of Services by You. If you want to terminate the Services provided by Brace, you may do so by (a) notifying Brace at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Brace’s address set forth below.
10.3. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files, and Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Content associated therewith from our live databases. Brace will not have any liability whatsoever to you for any suspension or termination, including for deletion of Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
Brace Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Brace intends to announce such Services or Content in your country. Brace Properties are controlled and offered by Brace from its facilities in the United States of America. Brace makes no representations that Brace Properties are appropriate or available for use in other locations. Those who access or use Brace Properties from other countries do so at their own volition and are responsible for compliance with local law.
** ***Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Brace and limits the manner in which you can seek relief from us. ***
12.1. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Brace, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Brace may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH BRACE, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST BRACE ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST BRACE IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
12.2. Arbitration Rules and Forum The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Eric Rachmel, 10000 Washington Blvd, 6th Floor, Culver City, CA 90232. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at https://www.jamsadr.com/rules-streamlined-arbitration; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at https://www.jamsadr.com/rules-comprehensive-arbitration. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Brace will pay them for you. In addition, Brace will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Brace will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
12.3. Authority of Arbitrator. The arbitrator, and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Brace. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
12.4. Waiver of Jury Trial. YOU AND BRACE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Brace are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.5. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 12.7.
12.6. 30-Day Right to Opt-Out. You have the right to opt-out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt-out to the following address: Brace Software, Inc., Attn: Legal Department, 10000 Washington Blvd, 6th Floor, Culver City, CA 90232, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Brace username (if any), the email address you used to set up your Brace account (if you have one), and an unequivocal statement that you want to opt-out of this Arbitration Agreement. If you opt-out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
12.7. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
12.8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Brace.
12.9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Brace makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Brace.
13.1. Electronic Communications. The communications between you and Brace use electronic means, whether you visit Brace Properties or send Brace emails, or whether Brace posts notices on Brace Properties or communicates with you via email. For contractual purposes, you (1) consent to receive communications from Brace in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Brace provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
13.2. Release. You hereby release Brace Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Brace Properties, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Brace Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights, and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Brace Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
13.3. Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Brace’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.4. Force Majeure. Brace shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.5. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Brace Properties, please contact us at: [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
13.6. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Brace agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles, California.
13.7. Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
13.8. Notice. Where Brace requires that you provide an email address, you are responsible for providing Brace with your most current email address. In the event that the last email address you provided to Brace is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Brace’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Brace at the following address: 10000 Washington Blvd, 6th Floor, Culver City, CA 90232. Such notice shall be deemed given when received by Brace by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
13.9. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.10. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
13.11. Export Control. You may not use, export, import, or transfer Brace Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Brace Properties, and any other applicable laws. In particular, but without limitation, Brace Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Brace Properties, you represent and warrant 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. You also will not use Brace Properties for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons. You acknowledge and agree that products, services, or technology provided by Brace are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Brace products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations.
13.12. Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
