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These Terms of Use (this “Agreement”) and the Privacy Policy (the “Privacy Policy”) are the policies of Kolter (as defined below) that apply to your use of our websites (including www.kolter.com, sub-domains, affiliated sites, and any mobile sites and/or applications provided by Kolter), any Kolter controlled social media pages, any email messages Kolter may send to you, and all other Kolter information, services, software functionality, and/or materials located thereon or available therefrom (collectively, the “Services”) and they govern your use of the Services. By accessing, visiting, using and/or submitting information to any of our Services, you agree to be bound by the terms and conditions of this Agreement and our Privacy Policy. For purposes of this Agreement and the Privacy Policy, the terms “Kolter,” “we,” “us,” or “our” include The Kolter Group LLC and all of its affiliates including, but not limited to, Kolter Homes LLC, Kolter Urban LLC, Kolter Land Partners LLC, Kolter Hospitality LLC, Kolter Mixed-Use LLC, Kolter Multifamily LLC, and all of their respective subsidiaries, parent companies, affiliates, related entities, predecessors, successors, and assigns (collectively “Kolter Affiliates”). However, please note that where a Kolter Affiliate has individually adopted a different Privacy Policy and/or Terms of Use, such Privacy Policy and/or Terms of Use will supersede Kolter’s Privacy Policy and/or Terms of Use for purposes of that Kolter Affiliate.
This Agreement contains an agreement to arbitrate all claims and disclaimers of warranties and liability.
PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.
Kolter is providing you with the Services to familiarize you with Kolter, its products, and its services. The Services are not intended to constitute an offer or solicitation. Because some jurisdictions require prior registration or other qualifications of real estate before solicitation is allowed, Kolter’s responses to your inquiries may be prohibited or limited. You agree that any content or information provided to you on or via the Services is void where prohibited by law.
You acknowledge that this Agreement is supported by reasonable and valuable consideration, the receipt and adequacy of which is hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your ability to access, visit, use and/or submit information to or from the Services.
You represent that you have the capacity to be bound by this Agreement, or if you are acting on behalf of a company or other entity, you have the authority to bind such company or entity. In order to determine your compliance with this Agreement, Kolter may monitor your access and use of the Services in accordance with the Privacy Policy.
Your right to access and use the Services is personal to you and is not transferable by you to any other person or entity. You are only entitled to access and use the Services for lawful purposes and pursuant to the terms and conditions of this Agreement and the Privacy Policy.
Your access and use of the Services may be interrupted from time to time for any reason including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Services, and/or any other actions that Kolter, in its sole discretion and without prior notice, may elect to take. Kolter reserves the right to suspend or discontinue the availability of the Services and/or any portion or feature of the Services at any time in its sole discretion and without prior notice.
Any action by you that, in Kolter’s sole discretion: (i) violates the terms and conditions of this Agreement and/or the Privacy Policy; (ii) restricts, inhibits or prevents any access, use or enjoyment of the Services; or (iii) through the use of the Services, defames, abuses, harasses, offends or threatens, shall not be permitted, and may result in your loss of the right to access and use the Services. You shall not meta-tag, provide links to, or frame the Services without Kolter’s prior express written permission.
The information contained on the Services is for informational purposes only and shall not be construed or deemed to: (i) constitute an offer to sell any of the homes, services, or communities described or referred to on the Services, or (ii) be an offering or a solicitation in those states where prior registration is required. Offers to purchase our homes may only be made and accepted at the sales center located at the applicable community by execution of a written purchase contract by the parties thereto. In addition, if prior registration under the laws of your state is required, please understand that we may not be able to provide you with information.
The Services are intended to be accessed and used only by adults and are not directed to children under the age of 18. We do not knowingly collect personally identifiable information from anyone under the age of 18 and you should not provide us with any information regarding any individual under the age of 18. You warrant that you are at least 18 years of age or, if living in a jurisdiction that maintains an older age of majority, at least such an age.
If you transmit, submit or post information to the Services that is not federally trademarked and/or copyrighted, you automatically grant Kolter the worldwide, fully-paid, royalty-free, exclusive right and license to use, copy, format, adapt, publish and/or incorporate any or all such information in any media whatsoever, including, without limitation, the Content (as defined below). Provided that you have obtained prior written permission from Kolter to transmit, submit or post information to the Services that is federally trademarked and/or copyrighted, you automatically grant Kolter and its affiliates the worldwide, fully-paid, royalty-free right to use, copy, format, adapt, publish and/or incorporate any or all such information in any media whatsoever, including, without limitation the Content.
You shall not transmit, submit or post the following to the Services:
Although Kolter does not regularly review your transmissions, submissions and/or postings, Kolter reserves the right (but not the obligation) to edit, refuse to post or remove your transmissions, submissions and/or postings. Pursuant to the Privacy Policy, Kolter may review transmissions, submissions and/or postings made by you to determine, in its sole discretion, your compliance with this Agreement.
You shall be solely responsible for your transmissions, submissions and/or postings (i.e., your own user generated content) and the consequences of your user generated content.
The names “The Kolter Group”, “Kolter Group”, “Kolter”, “Kolter Homes”, “Kolter Signature Homes”, ” Kolter Land Partners”, “Kolter Land”, “Kolter Hospitality”, “Kolter Urban”, “Kolter Tower”, “Kolter Multifamily”, “Kolter Mixed-Use”, “Clearway Capital”, “Cresswind”, “CTC”, “CTC Mortgage”, “CTC Mortgage Company”, “K Mortgage”, “K Mortgage Company”, “Kolter Financial Services”, “K Title Company”, “K Title”, “Eco-Nomics”, the name of each Kolter community, and Kolter’s graphics, logos, page headers, button icons, scripts, and service names are trademarks and/or trade dress of Kolter, in the United States and/or other countries (collectively, the “Proprietary Marks”). You may not use the Proprietary Marks without the prior express written permission of Kolter, which permission may be withheld in Kolter’s sole discretion. Kolter makes no proprietary claim to any third-party names, trademarks or service marks appearing on the Services. Any third-party names, trademarks or service marks are the property of their respective owners.
For purposes of the Services, the names “Kolter”, “Kolter Group”, or “The Kolter Group” shall be deemed to refer to “The Kolter Group LLC”, the names “Kolter Homes” or “Kolter Signature Homes” shall be deemed to refer to “Kolter Homes LLC”, the names “Kolter Land Partners”, “Kolter Land” or “KLP” shall be deemed to refer to “Kolter Land Partners LLC”, the name “Kolter Hospitality” shall be deemed to refer to “Kolter Hospitality LLC”, the name “Kolter Urban” or “Kolter Tower” shall be deemed to refer to “Kolter Urban LLC”, the names “CTC”, “CTC Mortgage”, or “CTC Mortgage Company” shall be deemed to refer to “CTC Mortgage Company LLC”, the names “K Title Company” or “K Title” shall be deemed to refer to “K Title Company LLC”, the names “K Mortgage Company” or “K Mortgage” shall be deemed to refer to “K Mortgage Company LLC.”, the name “Kolter Mixed-Use” shall be deemed to refer to “Kolter Mixed-Use LLC”, and the name “Kolter Multifamily” shall be deemed to refer to “Kolter Multifamily LLC”.
The information, advice, data, software and content viewable on, contained in, or downloadable from, the Services (collectively, the “Content”), including, without limitation, all text, graphics, charts, pictures, photographs, images, line art, icons, renditions and floor plans, are copyrighted by, or otherwise licensed to, Kolter or its Content suppliers. Kolter may also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and/or enhancement of the Content (the “Collective Work”). All software used on the Services (the “Software”) is the property of Kolter or its software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using the Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to the Content, the Collective Work or the Software.
You are solely responsible for any damage resulting from your infringement of Kolter’s or any third party’s intellectual property rights regarding the Proprietary Marks, the Content, the Collective Work, the Software and/or any other harm incurred by Kolter or any third parties as a direct or indirect result of your copying, distributing, redistributing, transmitting, publishing and/or using the same for purposes that are contrary to the terms and conditions of this Agreement.
Kolter grants you a limited license to access, print, download or otherwise make personal use of the Content and the Collective Work in the form of: (i) one machine-readable copy; (ii) one backup copy; and (iii) one print copy, for your non-commercial use; provided, however, that you shall not delete any proprietary notices or materials with regard to the foregoing manifestations of the Content and the Collective Work. You shall not (i) modify the Content or the Collective Work, (ii) utilize the Content or the Collective Work for any commercial purpose or any other public display, performance, sale, or rental, (iii) decompose, reverse engineer or disassemble the Content or the Collective Work, or (iv) transfer the Content or the Collective Work to another person or entity.
Except as otherwise permitted under the copyright laws of the United States, no other copying, distribution, redistribution, transmission, publication or use, other than the non-commercial use of the Content and the Collective Work as permitted by this Agreement, is permitted by you without the express prior written permission of Kolter, which permission may be withheld in Kolter’s sole and absolute discretion.
You may not use any meta-tags or any other “hidden text” utilizing the Proprietary Marks, the Content, and/or the Collective Work without the express written permission of Kolter, which permission may be withheld in Kolter’s sole and absolute discretion.
You agree that you will not use any robot, spider, scraper, deep link or other automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Services or any portion of the Services or for any other purpose, without Kolter’s express written permission, which may be withheld in Kolter’s sole and absolute discretion. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in Kolter’s sole and absolute discretion, an unreasonable or disproportionately large load on Kolter’s infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content from the Services without the prior written permission of Kolter and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (iv) bypass Kolter’s robot exclusion headers or other measures Kolter may use to prevent or restrict access to the Services. Notwithstanding the foregoing, Kolter grants the operators of public search engines permission to use spiders to copy materials from the Services 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. Kolter reserves the right to revoke these exceptions either generally or in specific cases in its sole discretion. You shall not collect or harvest any personally identifiable information, including account names, from the Services. You shall not use any communications systems provided on the Services (e.g., forums or email) for any commercial or solicitation purposes. You agree not to solicit for commercial purposes any users of the Services without Kolter’s prior written consent, which may be withheld in our sole discretion.
When you visit the Services or send email to Kolter, you are communicating with Kolter electronically. You consent to receive communications from Kolter electronically. Although Kolter may choose to communicate with you by regular mail, Kolter may also choose to communicate with you by e-mail or by posting notices on the Services. You agree that all agreements, notices, disclosures and other communications that Kolter provides to you electronically satisfy any legal requirement that such communications be in writing.
You are responsible for obtaining and maintaining all telephone, computer hardware, internet access services and other equipment or services needed to access and use the Services, and for all costs and fees (e.g., internet access or long-distance charges) incurred relating to your access and use of the Services.
On the Services there may be links to other websites, applications and/or services belonging to Kolter’s advertisers, business partners, and/or other third parties. Such links shall not constitute an endorsement by Kolter of those websites, applications or services. Kolter is not responsible for the activities or policies (including without limitation the privacy policies) of those websites, applications or services. Kolter does not endorse or recommend the products or services of any particular advertiser, business partner, or other third party.
If Kolter provides aspects of the Services on and/or via an application for your mobile or other device, please be aware that your carrier’s normal rates and fees may apply and that the terms of this Agreement and, as applicable, other agreements within an application, shall apply.
Many of Kolter’s communities are subject to developer agreements for, without limitation, gas, cable, television, security monitoring, high-speed internet, broadband, digital and other services, which provide for credits, allowances, and/or rebates, and in some cases provide for revenue sharing between the service provider and Kolter and/or reimbursement for certain costs to Kolter. In certain Kolter communities, Kolter may be or become the sole supplier of certain services.
In certain Kolter communities, if you purchase a lot (or resale lot) or home from an approved builder other than Kolter, Kolter may be entitled to a marketing fee and/or brokerage commission from the approved builder, which may be paid by the approved builder or may be charged to the purchaser. Prospective purchasers should check with their builder as to payment of this fee/commission.
Kolter welcomes and encourages broker participation but will only honor agreements with brokers or sales agents that are printed, written agreements, signed by a duly authorized officer of Kolter. Nothing on the Services or within this Agreement shall (i) entitle any person to any fee, compensation, commission or renumeration, or (ii) constitute any agreement, promise, covenant or undertaking with respect to brokers or sales agents representing potential buyers or sellers.
Certain references to clubs, golf clubs, homeowners’ association memberships, condominium association memberships, and other membership opportunities and amenities may be subject to applications, fees, dues, periodical regular assessments, special assessments, capital contributions upon purchase or sale, and availability. Such limitations are subject to change.
Kolter is committed to equal housing opportunities and encourages and supports eliminating barriers to obtaining housing due to race, color, religion, sex, handicap, familial status, or national origin. Kolter will not knowingly publish or accept any advertising for real estate which is in violation of the law. All persons are hereby informed that all dwellings advertised by Kolter are available on an equal opportunity basis.
While Kolter uses reasonable efforts to include accurate and up to date information on the Services, Kolter makes no representations or warranties as to the accuracy or completeness of any information, graphics, text, links, or other materials contained on the Services. Without limitation, Kolter is not liable or responsible for any errors or omissions in the information on the Services. All information must be verified at the particular community of the home about which the information is desired. All prices, features, specifications, renderings, pictures, floor plans, site plans, community maps, dimensions, and other descriptions of products and/or services provided on the Services are subject to change without notice to you. Without limiting the generality of the foregoing:
The above paragraph and all applicable disclaimers herein relating to marketing materials shall apply to the entire contents of the Services and all other informational materials regarding Kolter and their products and services, including, but not limited to any collateral materials, price lists, lotting plans, maps, specs and floor plans that are viewed, printed or sent directly or indirectly from the Services, all of which remain subject to change without notice. Further, these Terms of Use apply to such information regardless of whether or not such disclaimers (or any portions thereof) again appear on the individual content viewed, printed or distributed by Kolter.
Certain statements contained on the Services may be “forward-looking statements” ” as defined in the Private Securities Litigation Reform Act of 1995 and/or within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Exchange Act. Such statements involve known and unknown risks; uncertainties and other factors that may cause actual results to differ materially from those that are anticipated. With regard to Kolter, these factors include, but are not limited to, changes in general economic conditions, the market for homes generally and in areas where Kolter has developments, the availability and cost of land suitable for residential development, material prices, labor costs, interest rates, consumer confidence, competition, environmental factors and government regulations affecting Kolter.
Market condition statements on the Services are based on available information at time of posting and should never be relied upon. Market rates are based on market trends and other factors, and they involve risks, variables and uncertainties that can cause predictive statements to differ materially. Market condition statements are no guarantee of the present or future market conditions and/or market values. No statement contained on the Services should be construed as investment advice. You should conduct your own independent analysis and consult your own accounting, legal and tax advisors to evaluate risks, consequences, and suitability of a home purchase.
It is Kolter’s policy to comply with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512, including, without limitation, responding to notices of alleged copyright infringement, and other applicable intellectual property laws. Kolter shall in appropriate circumstances disable and/or terminate the accounts of users who may infringe or repeatedly infringe the copyrights or other intellectual property rights of Kolter and/or others.
Notifications (each a “Notification”, as further defined below) of claimed copyright infringement should be sent by either express mail or U.S. mail to Kolter’s designated agent. Kolter’s designated agent contact information to which notification should be sent is set forth below:
105 NE 1st Street
Delray Beach, FL 33444
Email address of designated agent: legalnotice@kolter.com
Pursuant to Title 17, United States Code, Section 512(c)(3), to be effective, the Notification must include the following:
Upon receipt of the written Notification containing the information as outlined in 1 through 6 above, and pursuant to Title 17, United States Code, Section 512:
Counter Notification:
Pursuant to Title 17, United States Code, Section 512(g)(3), a Subscriber may counter a Notification by providing a written communication (“Counter Notification”) to Kolter’s designated agent that includes substantially the following:
Upon receipt of a Counter Notification containing the information as outlined in 1 through 4 above, and pursuant to Title 17, United States Code, Section 512
THE CONTENT, THE SERVICES, AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. KOLTER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR ASSOCIATED WITH THE SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND ALL PRODUCTS AND SERVICES INCLUDED ON OR ASSOCIATED WITH THE SERVICES IS AT YOUR SOLE RISK. ANY REFERENCE TO THE HISTORICAL OR PROFORMA SIZE, PERFORMANCE, OR FINANCIAL PROJECTIONS OF THE KOLTER GROUP LLC, KOLTER HOMES LLC, KOLTER URBAN LLC, KOLTER LAND PARTNERS LLC, KOLTER HOSPITALITY LLC, KOLTER MIXED-USE LLC, KOLTER MULTIFAMILY LLC, OR ANY OF THEIR AFFILIATES, SUBSIDIARIES, OR PARENT ENTITIES, INCLUDING, BUT NOT LIMITED TO, ANY PREDECESSORS, SUCCESSORS, AFFILIATES, OR RELATED ENTITIES, IS DEEMED TO INCLUDE REFERENCE TO ALL SUCH ENTITIES AND THEIR RESPECTIVE PREDECESSORS AND AFFILIATES.
KOLTER DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT, THE SERVICES AND/OR THE SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES, NOR THE SAFETY, RELIABILITY, TITLE, TIMELINESS, COMPLETENESS, MERCHANTABILITY, CONFORMITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT, THE SERVICES AND/OR THE SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES. IT IS YOUR SOLE RESPONSIBILITY TO INDEPENDENTLY EVALUATE THE ACCURACY, CORRECTNESS AND/OR COMPLETENESS OF THE CONTENT, THE SERVICES AND/OR THE SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES. KOLTER MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT CONTENT AVAILABLE FOR DOWNLOADING FROM THE SERVICES IS FREE OF INFECTION FROM ANY VIRUSES, WORMS, TROJAN HORSES, TRAP DOORS, BACK DOORS, EASTER EGGS, TIME BOMBS, CANCELBOTS OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
THE SERVICES ARE CONTROLLED AND OFFERED BY KOLTER FROM FACILITIES IN THE UNITED STATES OF AMERICA. KOLTER MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER JURISDICTIONS. IF YOU ACCESS OR USE THE SERVICES FROM OTHER JURISDICTIONS, THEN YOU DO SO BY YOUR OWN VOLITION, YOU DO SO AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS.
KOLTER (INCLUDING THEIR AFFILIATES, RELATED ENTITIES, SUBSIDIARIES, PARENT ENTITIES, PREDECESSORS, AND SUCCESSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, OWNERS, EMPLOYEES, REPRESENTATIVES AND AGENTS) SHALL IN NO EVENT BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF THIS AGREEMENT; (II) YOUR ACCESS, VISITATION, USE AND/OR SUBMISSION OF INFORMATION TO ANY OF THE SERVICES; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE THE SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF THE CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; (V) YOUR RELIANCE UPON OR USE OF THE CONTENT OR THE COLLECTIVE WORK, OR (VI) ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH THE SERVICES, OR OTHERWISE ARISING OUT OF OR RELATING TO THE USE OF THE SERVICES, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF KOLTER HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, AND EVEN IF KOLTER WAS NEGLIGENT IN WHOLE OR IN PART. THE LIABILITY OF KOLTER (INCLUDING THEIR AFFILIATES, RELATED ENTITIES, SUBSIDIARIES, PARENT ENTITIES, PREDECESSORS, AND SUCCESSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, OWNERS, EMPLOYEES, REPRESENTATIVES AND AGENTS) ARISING OUT OF OR RELATING TO THE SERVICES AND/OR THIS AGREEMENT SHALL NOT EXCEED $100.
YOU SPECIFICALLY ACKNOWLEDGE THAT KOLTER SHALL NOT BE LIABLE FOR USER GENERATED CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM SUCH USER GENERATED CONTENT AND THIRD-PARTY CONDUCT RESTS ENTIRELY WITH YOU.
YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you.
You shall defend, indemnify and hold harmless Kolter, their affiliates, related entities, subsidiaries, parent entities, predecessors, and successors, and their respective directors, officers, managers, owners, employees, representatives and agents, from and against all claims, damages, losses and expenses, including, but not limited to, attorneys’ fees, arising out of, relating to, or attributable to: (i) any breach or violation of this Agreement by you; (ii) your failure to provide accurate, complete and current personally identifiable information requested or required by Kolter; (iii) your access or use of the Services; (iv) access or use of the Services under any password that may be issued to you; and/or (v) your transmissions, submissions or postings (i.e., your own user generated content).
We reserve the right to update, amend and/or change the Terms of Use at any time in our sole discretion. Each time you access the Services, you consent to the current Agreement.
You acknowledge that Kolter may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, Kolter shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of Palm Beach County, Florida, or the United States District Court, Southern District of Florida. You consent to the jurisdiction of such court and waive any objection to the laying of venue of any such action or proceeding in such court. You agree that service of any court paper may be effected on such party by mail or in such other manner as may be provided under applicable laws, rules of procedure or local rules.
You agree that: (i) the Services shall be deemed solely based in the State of Florida; and (ii) the Services shall be deemed a passive website that does not give rise to personal jurisdiction over Kolter, either specific or general, in jurisdictions other than the State of Florida. This Agreement is to be governed by and construed in accordance with the internal laws of the State of Florida, without regard for principles of conflicts of laws. Any civil action, claim, dispute or proceeding arising out of or relating to this Agreement, except for an injunctive action regarding a breach or threatened breach of any provision of this Agreement by you as provided above, shall be referred to final and binding arbitration, before a single arbitrator, under the commercial arbitration rules of the American Arbitration Association in Palm Beach County, Florida. In the event that any limitation on the period of time for bringing an action, claim, dispute or proceeding against us, located in the “Limitations on Kolter’s Liability” section of this Agreement above, is determined or held to be inapplicable or unenforceable by any court, arbitration panel or other tribunal, then the statute of limitations for the State of Florida, including but not limited to Florida Statutes Section 95, shall apply to any such action, claim, dispute or proceeding referred to final or binding arbitration.
TO THE FULLEST EXTENT ALLOWED BY LAW, YOU KNOWINGLY WAIVE ANY RIGHT: (A) TO PARTICIPATE IN ANY LITIGATION OR ARBITRATION OF ANY DISPUTE ON A CLASS, CONSOLIDATED, OR JOINT BASIS; OR (B) TO BRING ANY CLAIM IN ANY LITIGATION OR ARBITRATION ON BEHALF OF ANY PERSON OR ENTITY OTHER THAN YOURSELF (INCLUDING THE BRINGING OF ANY CLAIM IN ANY PRIVATE ATTORNEY GENERAL CAPACITY). THE ARBITRATOR’S AUTHORITY TO RESOLVE ANY DISPUTE AND TO MAKE WRITTEN AWARDS WILL BE LIMITED TO YOUR INDIVIDUAL CLAIMS.
THEREFORE, YOU DO NOT HAVE THE OPPORTUNITY TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS AND YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. BY USING THE SERVICES, YOU CONSENT TO THESE RESTRICTIONS.
You and Kolter shall select the arbitrator, and if you and Kolter are unable to reach agreement on selection of the arbitrator within thirty (30) days after the notice of arbitration is served, then the American Arbitration Association shall select the arbitrator. Arbitration shall not commence until the party requesting it has deposited One Thousand Dollars ($1,000) with the arbitrator for the arbitrator’s fees and costs. The party requesting arbitration shall advance such sums as are required from time to time by the arbitrator to pay the arbitrator’s fees and costs until the prevailing party is determined or the parties have agreed in writing to an alternate allocation of fees and costs.
Judgment upon any award rendered by the arbitrator shall be final, binding and conclusive upon you and Kolter and your and Kolter’s respective administrators, executors, legal representatives, successors and assigns, and may be entered in any court of competent jurisdiction. Notwithstanding the previous sentence, in no event shall either you or Kolter be entitled to punitive damages and both you and Kolter hereby waive your and Kolter’s respective rights to any punitive, special, incidental, indirect, or consequential damages, including, but not limited to, damages for any loss of profit, revenue or business.
Should the arbitration provisions herein become inapplicable or unenforceable, you agree that jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in Palm Beach County, Florida. You consent to the jurisdiction of such court and waive any objection to the laying of venue of any such action or proceeding in such court.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement, and shall not limit or otherwise affect in any way the meaning or interpretation of this Agreement.
All covenants, agreements, representations and warranties made in this Agreement, as may be amended by Kolter from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.
This Agreement and the Privacy Policy represent the entire understanding and agreement between you and Kolter regarding the subject matter of the same, and supersede all other previous agreements, understandings and/or representations regarding the same.
If you have questions, comments, concerns or feedback regarding this Agreement or the Services, please contact us at: legalnotice@kolter.com
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