Welcome to www.highpointweb.com (the “Website”). By using any website, mobile application, software, phone, email, text, communication, service of or with HighPoint (collectively, the “Service”), you hereby agree to these Terms of Use between you and HighPoint (“HighPoint,” “Company”, we,” “our” or “us”), which includes our Privacy Policy (the “Agreement”). This Agreement applies to all visitors, users, and others who access or use the Service (“Users”). Please read these Terms of Use carefully. If you do not agree to these Terms of Use, you are not authorized to use any HighPoint website or Service of HighPoint.
HighPoint is a website that enables Users to compare various financial products and services from third party financial institutions such as lenders, banks, credit card issuers, and others (“Provider” or “Providers”). We are not a lender, broker, advisor, issuer or financial institution. HighPoint has entered into contractual relationships with Providers, pursuant to which HighPoint may link to or display information, advertisements, discounts, products, goods, or services offered by the Providers (“Provider Content”). HighPoint does not guarantee the availability or accuracy of any such Provider Content or offers, nor does it endorse, guarantee nor insure any Provider products or services. HighPoint shall not be held liable, directly or indirectly, for any loss or damage caused by your use of any external website linked to the Service, (b) Provider Content, or (c) Provider products or services.
You may use the Service only if you are a natural person and can form a legally binding contract with HighPoint. Any use or access to the Service by anyone under the age of majority in the State in which they reside is strictly prohibited and in violation of this Agreement. You must act in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. You are prohibited from using the Service if you have previously been removed from the Service by HighPoint. The Website is operated within the United States and is not intended for use outside of the United States. If you access the Website from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
HighPoint reserves the right, at its sole discretion, to revise the terms of this Agreement and/or change, suspend, discontinue or modify any aspect of the Website. Such modifications may include, without limitation, changes in content or features of the Website. Your continued use of the Website after any such revisions to the Website and/or Terms of Use shall constitute your acceptance to be bound by the express terms of any such revisions.
HighPoint, including its affiliates and subsidiaries, shall have no responsibility to provide you access to the Website. Further, HighPoint, including its affiliates and subsidiaries, shall not be liable to you for any loss or liability resulting, directly or indirectly, from delays, inaccuracies, errors, omissions or interruptions of the Service for any reason, including, without limitation, due to electronic or mechanical equipment failures, telephone problems, defects, weather, strikes, walkouts, fire, acts of God, riots, armed conflicts, acts of war, acts of terrorism, or to other like causes.
To use our Service, you must agree to receive all important information from us and our Providers electronically (by us posting it on our Website or us or our Providers sending you an e-mail or other forms of electronic communication), instead of receiving paper copies in the mail.
Copyright, Patent and Trademark Notice: All content of the Website provided by HighPoint, including, but not limited to, all text, photos, graphics, audio, software, webpage layouts or configurations, presentations in any format and/or video is copyrighted by HighPoint, or its affiliates or subsidiaries. Copyright © 2016. All rights reserved.
No portion of the Content or other materials may be directly or indirectly copied, published, reproduced, modified, performed, displayed, sold, transmitted, published, broadcast, rewritten for broadcast or publication or redistributed in any medium, whether now known or hereafter created. The foregoing prohibition includes, but is not limited to “screen scraping” or “database scraping” to obtain lists of users or other Information. Nor may any portion of the Information or other materials be stored in a computer or distributed over any network, except that you may download or print one copy of pages strictly for personal and non-commercial use; however, any print out of any page of the Website or portion thereof, must include HighPoint’s copyright notice.
HighPoint, and its associated logos, page headers, custom graphics, buttons, and other icons are service marks, trademarks, registered service marks, registered trademarks, and/or trade dress of HighPoint. All other content product names and company logos are trademarks of their respective owners. Neither these materials, nor any portion thereof, may be stored in a computer except as reasonably necessary for personal and non-commercial use; however, any print out of any page of the Website or portion thereof, must include HighPoint’s copyright notice and/or trademark registration notice as appropriate.
You agree to use the Website and information contained herein for lawful purposes only. You agree not to post or transmit any information through the Website that: (a) infringes any patent, trademark or copyright rights of others or violates their privacy or publicity rights, (b) is unlawful, threatening, abusive, defamatory, libelous, vulgar, obscene, profane, indecent or otherwise objectionable, or (c) is protected by patent, copyright, trademark or other proprietary right without the express permission of the owner of such right. You shall be solely liable for any damages resulting from any infringement of patent, copyright, trademark or other proprietary rights, or any other harm resulting from your use of the Service.
You hereby grant to HighPoint a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and use for any purpose all messages or other materials posted by you on the Service or any e-mail sent by you to HighPoint (in whole or in part) and to incorporate any such messages or other materials or e-mails in any form, into other media or technology whether now known or hereafter developed. We want you to provide feedback about the Website, Providers, products and services. In order to display, share and otherwise make that information you share with us useful, you grant us the rights to “Use” that information, including, editing it, reproducing it and displaying it. We appreciate any feedback or ideas that you share with us about HighPoint, our website, products or services, but we cannot compensate you monetarily or otherwise as a result. Before posting or providing any content, please review these requirements carefully:
You own and are solely responsible for any content including testimonials, images, text, audio or other materials that you submit (“User Content”). By submitting User Content, you grant Us or our sub-licensee or assignees a non-exclusive, worldwide, perpetual (or for the duration of any copyright or other rights in such content), irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) right to use, reproduce, distribute, create derivative works from, publicly perform, display, store, or publish in any way, in any media known now or in the future (“Use”).
You grant Us or our sub-licensee or assignees the right to use your name or image in association with your User Content, if we so choose.
Further, to the fullest extent permitted under applicable law, you waive your moral rights in the content and promise not to assert such rights against Us, our sub-licensees or assignees.
You represent and warrant that the User Content you provide (a) is owned by you or you control all necessary rights to it; (b) does not violate, misappropriate or infringe on the rights of any third-party including intellectual property rights, privacy rights or publicity rights; (c) is accurate, not obscene, false, libelous or defamatory; and (d) will not cause injury to any person, entity or system.
HighPoint has the right but not the obligation to monitor, edit or remove the User Content you provide, for any reason, or no reason. Any User Content you provide is non-confidential and HighPoint will not be liable for its use or disclosure.
If you submit ideas, suggestions, documents, and/or proposals (“Ideas”) to HighPoint, you do so voluntarily and with no expectation of confidentiality. By submitting Ideas, you grant us ownership of the Ideas to use for any purpose, in any way, in any media now known or in the future and throughout the universe without any obligation or payment. You understand that HighPoint may have something similar to the Ideas under consideration or in development.
The comments or responses that HighPoint posts under its official account are not provided, reviewed or endorsed by any Provider unless specifically stated otherwise in the response. Please keep in mind that the Provider has no obligation to monitor any of the comments, questions or reviews posted (yours or ours), and is therefore not responsible to ensure that your posts and/or questions are answered.
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “HighPoint Content”), and all Intellectual Property Rights related thereto, are the exclusive property of HighPoint and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any HighPoint Content. Use of the HighPoint Content for any purpose not expressly permitted by this Agreement is strictly prohibited. Use of any HighPoint Content as part of a link to or from any site is prohibited unless establishment of such link is approved in advance by HighPoint in writing.
Since we respect artist and content owner rights, it is HighPoint’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify HighPoint’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
HighPoint
Email: contact [at] highpointweb [dot] com
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying HighPoint and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with HighPoint’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
Without the prior written consent of HighPoint, you may not use any of HighPoint’s proprietary logos, marks, or other distinctive graphics, video, or audio material in your links. You may not link to the Website or to any page thereof or engage in the practice of “deep linking” in any manner reasonably likely to: (a) imply affiliation with or endorsement or sponsorship of or by HighPoint; (b) cause confusion, mistake, or deception; (c) dilute HighPoint's trademarks or service marks; (d) otherwise violate state or federal law; or (e) constitute improper disparagement or disclosure concerning HighPoint or any of its respective affiliates, or their respective officers, directors or agents. You may not frame or otherwise incorporate into another Website any of the Information or other materials on this Website without the prior written consent of HighPoint. HighPoint shall not be held liable, directly or indirectly, for any loss or damage caused by your use of any external site linked to the Service, including, without limitation, any external site’s information, content, products or services.
You assume all risk of errors and/or omissions in the Website, including the transmission or translation of data. You assume full responsibility for implementing sufficient procedures and checks to satisfy your requirements for the accuracy and suitability of the Website, including its content and information, and for maintaining any means which you may require for the reconstruction of lost data or subsequent manipulations or analyses of the content and information provided under this Agreement.
HighPoint may develop and participate in electronic direct marketing to users of the Website who elect to receive electronic mail, text or similar communication (“Electronic Communication”). HighPoint does not authorize anyone to use the Service to broadcast, distribute, transmit or retransmit unsolicited commercial, non-commercial, bulk, or junk electronic mail, including email (“SPAM”). In keeping with this Agreement, HighPoint does not forward the names and addresses (electronic or otherwise) to third parties. Users may elect to not receive similar Electronic Communication by requesting that their contact information be removed from the mailing list by selecting the appropriate option included with each communication sent by HighPoint. In addition, users may elect to be removed from such lists at any time by sending a message to contact [at] highpointweb [dot] com. Users who receive SPAM or any threatening or offensive e-mail through the Services may report it to HighPoint by forwarding the unedited message with the full message header to contact [at] highpointweb [dot] com. HighPoint reserves the right to take all legal or technical steps that it deems necessary to prevent the broadcast, distribution, transmission, or retransmission over the Service of SPAM, junk e-mail, threatening or offensive e-mail, or e-mail otherwise determined by HighPoint, in its sole discretion, to be objectionable. HighPoint reserves the right to suspend or terminate any person or entity’s use of or access to the Service if it determines, in its sole and absolute discretion, that such person has used or intends to use the Service in violation of this policy. A failure of HighPoint to exercise any right provided for herein shall not be deemed to be a waiver of such right.
These Terms of Use include our Privacy Policy as contained on our website, which is incorporated fully herein. Please read it carefully so you know how we collect, use, share, and secure your information. You understand that by using the Service, you consent to the collection, use and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Policy, and to have your personally identifiable information collected, used, transferred to and processed, as contemplated by our Privacy Policy.
We have set forth the rules for using the Service, including your responsibilities and obligations in this Terms of Use and the Privacy Policy. If you violate any of these terms and you get into legal trouble for them, or it results in legal trouble for us, you are legally responsible for any of the ramifications, not us.
You agree that you will be personally liable for your use of the Service. You agree to defend, indemnify and hold harmless Company and its subsidiaries, officers, directors, agents and employees, Providers (and their officers, directors, agents and employees), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties; (iii) your violation of any third party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any User Content that is submitted via your Account; or (vi) any other party’s access and use of the Service with your unique username, password or other security code. Company reserves the right but not the obligation, at our expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
THE SERVICE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (i) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; OR (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USEAGE OR TRADE. YOU UNDERSTAND AND AGREE THAT NOTHING RELATED TO THE SERVICE CONSTITUTES INVESTMENT, LEGAL AND/OR OTHER PROFESSIONAL ADVICE.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, IN NO EVENT WILL HIGHPOINT, ITS PARENT, SUBSIDIARIES, OR PROVIDERS OR THEIR RESPECTIVE AGENTS, DIRECTORS, OR EMPLOYEES, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICE OR ANY OF THE SITE CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SITE, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO THE COMPANY FOR THE SERVICE OR $100, WHICHEVER IS GREATER.
CERTAIN FEDERAL AND STATE LAWS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HIGHPOINT AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
The following in no way limits the preceding disclaimers of guarantees or warranties and limitation of liabilities, but shall serve as examples of what is disclaimed/limited:
YOU ASSUME ALL RISK AND ANY AND ALL DAMAGES ASSOCIATED WITH YOUR USE OF THE SERVICE. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE. COMPANY IS NOT LIABLE OR RESPONSIBLE FOR ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICE.
COMPANY DOES NOT GUARANTEE THE CONTINUOUS OPERATION OR ACCESS TO THE SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (III) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD-PARTY; (V) THAT THE SITE OR SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND/OR (VI) THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED.
COMPANY DOES NOT GUARANTEE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY ERRORS, MISTAKES OR OTHER INACCURACIES IN THE INFORMATION, CONTENT OR MATERIALS MADE AVAILABLE THROUGH THE SERVICE. IT IS YOUR RESPONSIBILITY TO CONFIRM THE ACCURACY OF THE INFORMATION DISPLAYED ON THE SITE OR PROVIDED THROUGH THE SERVICE DIRECTLY WITH THE PROVIDERS.
THE CONTENT, INFORMATION AND SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. ALL FINANCIAL DECISIONS MADE BY YOU ARE YOUR RESPONSIBILITY AND YOU SHOULD CONSULT A FINANCIAL ADVISER WHO UNDERSTANDS AND KNOWS YOUR SPECIFIC FINANCIAL CIRCUMSTANCES BEFORE MAKING ANY FINANCIAL DECISIONS. NOTHING ON THE SITE SHOULD BE INTERPRETED AS A FINANCIAL RECOMMENDATION FOR YOU.
WE MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING ANY PROVIDER OR OTHER THIRD-PARTY, INCLUDING THOSE THAT ARE HYPERLINKED TO OR FROM OUR SITE OR SERVICES. THE COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ASSOCIATED WITH PROVIDERS’ OR OTHER THIRD-PARTIES’ SITES, INFORMATIONAL MATERIALS, PRODUCTS OR SERVICES INCLUDING BUT NOT LIMITED TO OFFERS, PREQUALIFIED RATES, OR QUOTES. YOU UNDERSTAND AND AGREE THAT THIS AGREEMENT, HIGHPOINT’S PRIVACY POLICY AND OTHER COMPANY TERMS AND POLICIES DO NOT APPLY TO YOUR USE OF PROVIDERS’ OR OTHER THIRD-PARTIES’ WEBSITES. COMPANY IS NOT A PARTY TO ANY TRANSACTION BETWEEN YOU AND A PROVIDER OR OTHER THIRD-PARTY. YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT ALL TRANSACTIONS RELATED TO THE PRODUCTS OR SERVICES FROM OR WITH ANY PROVIDER OR OTHER THIRD PARTY, INCLUDING BUT NOT LIMITED TO, PAYMENT TERMS, PURCHASE TERMS, RATES, QUOTES, WARRANTIES, GUARANTEES, MAINTENANCE AND DELIVERY ARE AGREED TO SOLELY BETWEEN YOU AND PROVIDER OR OTHER THIRD-PARTY WHETHER OR NOT SUCH TRANSACTION WAS COMMENCED ON OUR SITE OR USING OUR SERVICE AND YOU EXPRESSLY RELIEVE COMPANY FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY PROVIDER OR THIRD-PARTY SITES, PRODUCTS OR SERVICES. COMPANY DOES NOT ENDORSE ANY PARTICULAR PROVIDER OR OTHER THIRD-PARTY.
WE ASSUME NO LIABILITY FOR THE RELATIONSHIP AND INTERACTIONS BETWEEN YOU AND A PROVIDER OR OTHER THIRD PARTY. WE DO NOT GUARANTEE THAT ANY PROVIDER WILL APPROVE YOUR REQUEST FOR CREDIT, PROVIDE YOU AN OFFER OF CREDIT OR OTHERWISE PROVIDE YOU THEIR PRODUCT OR SERVICE. IF THE PROVIDER DOES OFFER YOU A PRODUCT OR SERVICE, OR APPROVES YOUR REQUEST, WE DO NOT GUARANTEE THAT THE TERMS, RATES OR OFFER, IF ANY, ARE THE BEST TERMS OR LOWEST TERMS AVAILABLE IN THE MARKET OR FROM THAT PROVIDER. WE ARE NOT A PARTY TO THE DEALING, CONTRACTING, OR FULFILLMENT OF ANY OF PROVIDER’S PRODUCT OR SERVICES. WE ARE UNDER NO OBLIGATION TO VERIFY OR MONITOR, AND DO NOT GUARANTEE, ANY INFORMATION GIVEN TO US BY USERS, OR DISPLAYED TO YOU ON OUR SITE FROM PROVIDERS OR OTHER THIRD PARTIES. ANY CORRESPONDENCE YOU HAVE WITH PROVIDERS, AS WELL AS PROVIDER’S TERMS OF USE, POLICIES, DISCLOSURES, PRODUCTS, SERVICES OR OTHERWISE ARE SOLELY BETWEEN YOU AND THE PROVIDER AND WE ASSUME NO LIABILITY, OBLIGATION OR RESPONSIBILITY WITH RESPECT THERETO. WE DO NOT ACCEPT ANY OFFER ON YOUR BEHALF. ACCEPTING OFFERS IS SOLELY YOUR RESPONSIBILITY.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND HIGHPOINT HAVE AGAINST EACH OTHER ARE RESOLVED.
You and HighPoint agree that any claim or dispute at law or equity that has arisen, or may arise, between you and HighPoint that relates in any way to or arises out of this or previous versions of the Agreement, your use of or access to the Service, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
For any dispute with HighPoint, you agree to first contact us at contact [at] highpointweb [dot] com and attempt to resolve the dispute with us informally. In the unlikely event that HighPoint has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any HighPoint claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. Nothing in this Section 10 shall prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party’s data security, Intellectual Property Rights, or other proprietary rights.
Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
YOU AND HIGHPOINT AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND HIGHPOINT AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
Overview: Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
Rules and Procedures: The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word "arbitrator" in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA's rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
Notice: A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute ("Notice"). The Notice to HighPoint should be sent to HighPoint at contact [at] highpointweb [dot] com. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
Post-Notice Initiation of Proceedings: If you and HighPoint are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or HighPoint may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to HighPoint at the following address: contact [at] highpointweb [dot] com. Any settlement offer made by you or HighPoint shall not be disclosed to the arbitrator.
Arbitration Location: The arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or HighPoint may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and HighPoint subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or HighPoint may attend by telephone, unless the arbitrator requires otherwise.
Arbitrator Decision; Final and Binding: The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same HighPoint user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, HighPoint will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by HighPoint should be submitted by mail to the AAA along with your Demand for Arbitration and HighPoint will make arrangements to pay all necessary fees directly to the AAA. If (a) you willfully fail to comply with the Notice of Dispute requirement discussed above, or (b) in the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse HighPoint for all fees associated with the arbitration paid by HighPoint on your behalf that you otherwise would be obligated to pay under the AAA's rules.
With the exception of any of the provisions in this Section of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
YOU AND WE AGREE THAT, BY ENTERING INTO THIS AGREEMENT, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND WE ACKNOWLEDGE THAT ARBITRATION WILL LIMIT OUR LEGAL RIGHTS, INCLUDING THE RIGHT TO PARTICIPATE IN A CLASS ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO CONDUCT FULL DISCOVERY, AND THE RIGHT TO APPEAL (EXCEPT AS PERMITTED IN PARAGRAPH (e) OR UNDER THE FEDERAL ARBITRATION ACT).
IF YOU ARE A NEW HIGHPOINT USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE ("OPT-OUT") BY EMAILING US AT CONTACT [AT] HIGHPOINTWEB [DOT] COM A WRITTEN OPT-OUT NOTICE ("OPT-OUT NOTICE"). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE AGREEMENT FOR THE FIRST TIME (I.E., YOU ACCEPT THE AGREEMENT WHEN YOU USE THE WEBSITE).
Your Opt-Out Notice must include the following information: your name, address (including street address, city, state and zip code), and email address. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
Notwithstanding any provision in the Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against HighPoint prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and HighPoint. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on this Website at least 30 days before the effective date of the amendments. If you do not agree to these amended terms, you may deactivate your Account within the 30-day period and you will not be bound by the amended terms.
You agree that: (i) the Service shall be deemed solely based in the State of New York, USA; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over HighPoint, either specific or general, in jurisdictions other than New York. This Agreement shall be governed by the internal substantive laws of the State of New York, without regard to principles of conflict of law.
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and HighPoint must be resolved exclusively by a state or federal court located in New York, New York. You and HighPoint agree to submit to the personal jurisdiction of the courts located within New York, New York for the purpose of litigating all such claims or disputes. You agree to submit to the personal jurisdiction of the federal and state courts located in New York, New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights.
The Website may provide links to third-party websites, resources or services. You acknowledge and agree that HighPoint is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by HighPoint of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge that you have sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services. We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
YOU ACKNOWLEDGE AND AGREE THAT HIGHPOINT USES REASONABLE EFFORTS TO ASSURE THAT NO VIRUSES OR PROGRAMS WITH SIMILAR FUNCTIONS OPERATE ON, OR ARE PASSED THROUGH, THE WEBSITE OR THE INFORMATION. HOWEVER, YOU HEREBY ASSUME ALL RESPONSIBILITY (AND THEREBY HOLD HIGHPOINT HARMLESS), BY WHATEVER MEANS YOU DEEM MOST APPROPRIATE FOR YOUR NEEDS, FOR DETECTING AND ERADICATING ANY VIRUS OR PROGRAM.
We may access, use, preserve, transfer or disclose, at any time and without notice to you, any information (including Personal Information as defined in our Privacy Policy) as reasonably necessary to: (1) comply with any applicable law, regulation, subpoena, or legal process, or respond to any governmental request or cooperate with law enforcement, if we believe such action is required or permitted by law; (2) enforce the Agreement, including to investigate potential violations; (3) protect the safety, integrity, rights, or security of our users, our Services or equipment, or any third¬ party; or (4) detect, prevent, or otherwise address fraud, security, or technical issues related to our Service or the services of our Providers or other third-parties.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by HighPoint without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
This Agreement, together with the Privacy Policy and any other policies linked to in this Agreement, constitute the entire and exclusive understanding and agreement between you and HighPoint regarding your use of and access to the Service, and except as expressly permitted above may only be amended by a written agreement signed by authorized representatives of the parties. HighPoint may offer promotions from time to time.
If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall be given effect to the greatest extent possible and shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and HighPoint’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Headings are for reference purposes only and do not limit the scope or extent of such Section.
The following Sections survive any termination of this Agreement: Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, Legal Disputes, and General.
Neither this Agreement nor the use of the Service shall be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between you and HighPoint, except and solely to the extent expressly stated herein.
The Service may contain links to third-party and Provider websites, advertisers, services, or special offers that are not owned or controlled by HighPoint. HighPoint does not assume any responsibility for any third-party sites, information, materials, products, or services. In some instances, Providers require that HighPoint’s Users agree to be bound by some additional Terms of Use that are specific to particular products or services (“Provider Terms”). In the event of any conflict between the Provider Terms and HighPoint’s Terms of Use related to the Service, HighPoint’s Terms of Use govern and control. When you link to Provider or other third-party sites you do so at your own risk and you should be aware that our terms and policies do not govern, except to the extent expressly provided for herein. You should always review the third-party’s applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Website.
Please contact us at contact [at] highpointweb [dot] com with any questions regarding this Agreement.
Notice to California Residents: Under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the service or to receive further information regarding use of the service.
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You agree to print or save a copy of this Agreement for your records and you agree and acknowledge that you can access, receive and retain all Disclosures electronically sent via email or posted on the Website.
ANY RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY MAKE LEMONADE, LLC.
