Welcome to Hadley! Hadley Investment Co. (“Hadley”) is a public benefit corporation and a registered investment adviser (“RIA”) with the United State Securities and Exchange Commission (“SEC”). Hadley was established to make higher education a more accessible and affordable reality for Americans.
This Agreement
Please read this Terms of Use agreement (the “Terms of Use” or “Agreement”) carefully. This website and any other websites of Hadley, its affiliates, or agents (collectively, the “Website”) and the information contained therein are controlled by Hadley. These Terms of Use govern the use of the Website, Hadley’s mobile application (“Application”), and apply to all internet users visiting the Website or the Application. These Terms apply to the Website and the Application, 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, completing the registration process, and/or browsing the Website or downloading Hadley’s Application, 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 Hadley, and (3) you have the authority to enter into the Terms of Use personally or on behalf of the entity you have named as the user, and to bind that entity 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, the Application or the Services.
The Services
The Services consist of the following, as may be updated by Hadley from time to time:
Hadley provides investment advice and recommendations geared towards helping you find a 529 plan (“New Plan”) and make contributions to the New Plan.
If you have an existing 529 plan (“Existing Plan”), Hadley also allows you to link your Existing Plan to the Application to make contributions to such Existing Plan.
Hadley also allows friends and family to send contributions (or set recurring contributions) into New or Existing Plans (each, a “Plan”).
The Application allows you to track your Plan savings, gifts, and goals.
Not Included in the Services
While the Services can be used to identify the right Plan for you, you must enroll in a Plan directly with the plan administrators (“Plan Administrators”). Hadley does not manage any Plans. Plans are managed by Plan Administrators and for all matters concerning the management, monitoring and administration of your Plan, you should deal directly with the Plan Administrators. Hadley is not affiliated with Plan Administrators. Hadley makes no warranties or representations whatsoever with regard to any services provided by Plan Administrators. When navigating to Plan Administrator websites or applications, understand that Hadley does not own or control (or purport to own or control) any such third-party content. You will not consider Hadley, nor will Hadley be construed as, a party to such transactions, whether or not Hadley may have received some form of revenue or other remuneration in connection with the transaction or be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transaction.
Hadley may communicate with the Plan Administrator about your transactions or account information only to the extent that such communication is necessary in order to deliver services to you.
Contact your Plan Administrator or your state’s program to confirm the most current tax laws and policies. Tax laws and regulations change frequently, and their application can vary widely based on the specific facts and circumstances involved. Hadley does not offer tax services or advice. Always consult your tax advisor regarding your specific tax situation before you make any tax-related decisions.
All investment carries risk of loss, including loss of principal. Past performance does not guarantee future results. There can be no assurance that any investment will achieve its objectives or avoid substantial losses. Ownership of all investment decisions undertaken by you shall vest with you after consideration of possible risks of such decisions. Plan participants should consult with tax and financial specialists prior to opening or modifying a Plan. Plan participants should consider contribution amounts in light of personal financial circumstances. Having a Plan may marginally impact the potential amount of financial aid granted through FAFSA.
The material contained on the Website is not intended to be a recommendation or investment advice, does not constitute a solicitation to buy, sell or hold a security or investment strategy and is not provided in a fiduciary capacity. The information provided on the Website does not take into account the specific objectives or circumstances of any particular investor or suggest any specific course of action. Investment decisions should be made based on an investor’s objectives and circumstances and in consultation with her or her financial professionals. All research and other information provided on the Website has been prepared for informational purposes only and Hadley assumes no liability or responsibility for any errors or omissions in the content of the Website or any Third-Party Websites (as defined in Section 13 (Third-Party Services).
Other Material Terms
Please be aware that Section 12 (Dispute Resolution) contains provisions governing how to resolve disputes between you and Hadley. Among other things, Section 12 includes an agreement to arbitrate which requires, with limited exceptions, that all disputes between you and Hadley shall be resolved by binding and final arbitration. Section 12 also contains a class action and jury trial waiver. Please read Section 12 carefully.
Unless you opt out of the agreement to arbitrate within 30 days: (1) you will only be permitted to pursue disputes or 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 you waive your right to participate in a class action lawsuit or class-wide arbitration; and (2) you are waiving your right to pursue disputes or claims and seek relief in a court of law and to have a jury trial.
Please be aware that Section 2.4 (Hadley Communications) of this Agreement, below, contains your opt-in consent to receive communications from us, including via e-mail, text message, calls and push notification.
AGREEMENT IS SUBJECT TO CHANGE.
PLEASE NOTE THAT The Agreement IS subject to change by Hadley in its sole discretion at any time. When changes are made, Hadley will make a new copy of the Terms of Use Agreement available at the Website and within the Application will be made available from within, or through, the affected Service on the Website or within the Application. We will also update the “Last Updated” date at the top of the Terms of Use Agreement. If we make any material changes, and you have registered with us to create an Account (as defined in Section 3.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new users of the Website, the Application and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Registered Users, provided that any material changes shall be effective for Registered 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 e-mail notice of such changes to Registered Users (defined in Section 3.1 (Registering Your Account) below). Hadley may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, the Application 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, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
USE OF THE SERVICES AND HADLEY PROPERTIES.
The Application, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (each, a “Hadley Property” and collectively, the “Hadley Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Hadley grants you a limited license to reproduce portions of Hadley Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Hadley in a separate license, your right to use any and all Hadley Properties is subject to the Agreement.
Application License.
Subject to your compliance with the Agreement, Hadley grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
Updates.
You understand that Hadley Properties are evolving. As a result, Hadley may require you to accept updates to Hadley Properties that you have installed on your computer or mobile device. You acknowledge and agree that Hadley may update Hadley Properties with or without notifying you. You may need to update third-party software from time to time in order to use Hadley Properties.
Certain Restrictions.
The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Hadley Properties or any portion of Hadley Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Hadley Properties (including images, text, page layout or form) of Hadley; (c) you shall not use any metatags or other “hidden text” using Hadley’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 Hadley 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) except as expressly stated herein, no part of Hadley Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Hadley Properties. Any future release, update or other addition to Hadley Properties shall be subject to the Agreement. Hadley, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Hadley Property terminates the licenses granted by Hadley pursuant to the Agreement.
Hadley Communications.
By entering into this Agreement or using the Hadley Properties, you agree to receive communications from us, including electronic communications (via e-mail, text message, calls, and push notifications, etc.). You have the option to request hard copies of any disclosure document required to be provided by Hadley. Such requests must be made in writing to [email protected]. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Hadley Properties, updates concerning new and existing features on the Hadley Properties, communications concerning promotions run by us or our third-party partners, and news concerning Hadley and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY REPLY TO SUCH CALL OR TEXT BY TEXTING THE WORD “END” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE HADLEY PROPERTIES OR RELATED SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN REPLY TO SUCH CALL OR TEXT BY TEXTING THE WORD “STOPALL” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE HADLEY PROPERTIES OR RELATED SERVICES.
REGISTRATION.
Registering Your Account.
In order to access certain features of Hadley Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”) or has an account with the provider of the Application for the user’s mobile device.
Registration Data.
In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Hadley 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 agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Hadley Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Hadley immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Hadley has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Hadley has the right to suspend or terminate your Account and refuse any and all current or future use of Hadley 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. Hadley reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party’s rights. You agree not to create an Account or use Hadley Properties if you have been previously removed by Hadley, or if you have been previously banned from any of Hadley Properties.
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 Hadley.
Necessary Equipment and Software.
You must provide all equipment and software necessary to connect to Hadley Properties, including but not limited to, a mobile device that is suitable to connect with and use Hadley 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 Hadley Properties.
RESPONSIBILITY FOR CONTENT.
Types of Content.
You acknowledge that all any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Hadley Properties (collectively, “Content”), including Hadley Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Hadley, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Hadley Properties (“Your Content”), and that you and other Registered Users of Hadley Properties, and not Hadley, are similarly responsible for all Content that you and they Make Available through Hadley Properties (“User Content”). Hadley will use Your Content in accordance with Hadley’s Privacy Policy.
Anonymous and Aggregated Data.
Notwithstanding anything to the contrary in this Agreement, Hadley may aggregate and/or de-identify the information provided by you as well as including information and data on how the Services are used by you and other customers. Hadley reserves the right to disclose to and share such information and data with third parties in an anonymous and aggregate form at its discretion and to use such information and data to improve or evolve the Services and for any other legitimate business purposes.
Storage.
Unless expressly agreed to by Hadley in writing elsewhere, Hadley has no obligation to store any of Your Content that you Make Available on Hadley Properties. Hadley has no responsibility or liability for the deletion or accuracy of any Content, including Your 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 Hadley Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Hadley retains the right to create reasonable limits on Hadley’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Hadley in its sole discretion.
OWNERSHIP.
Hadley Properties.
Except with respect to Your Content and User Content, you agree that Hadley and its suppliers own all rights, title and interest in Hadley Properties (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Hadley software. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Hadley Properties.
Trademarks.
Hadley and all related graphics, logos, service marks and trade names used on or in connection with any Hadley Properties or in connection with the Services are the trademarks of Hadley and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in Hadley Properties are the property of their respective owners.
Your Content.
Hadley does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in Hadley Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
License to Your Content.
Subject to any applicable account settings that you select, you grant Hadley 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 Your Content (in whole or in part) for the purposes of operating and providing Hadley Properties to you and to our other Registered Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Hadley Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Hadley, are responsible for all of Your Content that you Make Available on or in Hadley Properties. You may not post or submit for print services a photograph of another person without that person’s permission.
Feedback.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Hadley through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Hadley 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 Hadley 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 Hadley Properties and/or Hadley’s business.
USE OF SERVICES.
As a condition of use, you agree not to use Hadley Properties for any purpose that is prohibited by this Agreement or by applicable law. In directing funds to a Plan, you agree that you shall comply with all applicable laws and shall not make such payments for any improper or illegal purposes. You shall not (and shall not permit any third-party) either (a) take any action or (b) Make Available any Content on or through Hadley Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Hadley’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Hadley; (vi) interferes with or attempt to interfere with the proper functioning of Hadley Properties or uses Hadley Properties in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Hadley Properties, including but not limited to violating or attempting to violate any security features of Hadley Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Hadley Properties, introducing viruses, worms, or similar harmful code into Hadley Properties, or interfering or attempting to interfere with use of Hadley Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Hadley Properties. Hadley reserves the right to investigate any possible breaches of the foregoing restrictions and may in suspend or terminate your access to the Services for any actual or suspected breach of such restrictions.
FEES AND PAYMENT TERMS.
Processing Fees.
Hadley charges certain transaction processing fees in connection with your use of the Services, and such fees shall be displayed on the Website and/or the Application (“Processing Fee”). You will be responsible for payment of the applicable Processing Fee for the use of the Services. Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Hadley for the Services until Hadley accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
Payment.
You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Hadley’s current fees are outlined on the Website and may be updated from time to time. You must provide Hadley with valid ACH authentication information (bank account and routing numbers) for a U.S. bank account as a condition to signing up for the Services. Your agreement with your financial institution governs your use of the designated bank account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Hadley with your bank account information, you agree that Hadley is authorized to immediately invoice your Account for all fees and charges due and payable to Hadley hereunder and that no additional notice or consent is required. You agree to immediately notify Hadley of any change in your billing address or bank account used for payment hereunder. Hadley reserves the right at any time to change its prices and billing methods, either immediately upon posting on Hadley Properties or by e-mail delivery to you.
Linking Third-Party Accounts.
On the Hadley Properties, you may be provided with an option to link a third-party account, such as your bank account or Plan account, or information held by a third-party (a “Linked Account”). By linking any of your Linked Accounts, you authorize and direct Hadley to access third-party sites, databases, and other services relating to the Linked Account, and to access, retrieve, and use your information or other information you direct us to access on an ongoing basis (“Account Information”). By linking your Linked Account, you authorize Hadley to share your account login credentials or other information and grant Hadley full power and authority to take any additional steps, all as necessary to access, retrieve, and use your Account Information in accordance with this Agreement and Hadley’s Privacy Policy. Specifically, when you choose to make a contribution to your Plan through Hadley, you are specifically authorizing and directing Hadley to direct payments from your Linked Account to the applicable Plan.
(a)
You acknowledge and agree that when Hadley accesses, retrieves, and uses your Account Information, it is acting as your agent, and not as the agent of or on behalf of any other party. The Account Information may include ACH authentication information (bank account and routing numbers), transaction data, identity verification information, and account balance details. By linking your Linked Account, you also authorize and direct Hadley to use a third-party service provider, such as Plaid, to indirectly perform any of these same services.
(b)
If Hadley uses a third-party service provider to access your Account Information, that third-party service provider will provide to Hadley, on your behalf, your Account Information for our use in connection with the Services, including to respond to your inquiries, fulfill your requests, and provide you with customer service.
(c)
Hadley is not responsible for the Account Information and does not review the Account Information for accuracy, legality, or non-infringement. You agree that Hadley is entitled to rely on the foregoing authorization and direction granted by you. You represent and warrant you are a legal owner of, or you are authorized to provide Hadley with, all Account Information, and have the right to grant the permissions set forth herein, and a third-party service provider’s exercise of its rights set forth herein will not violate any application laws or third-party rights.
Payment Provider.
Hadley uses Stripe, Inc. and its affiliates as the third-party service provider for payment services (e.g., Processing Fees and related services) (a “Payment Provider”). By providing your bank account information on any Hadley Property in order to pay any Processing Fees to Hadley, you agree to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/us/terms) and hereby consent and authorize Hadley and Stripe to share any information and payment instructions you provide with one or more Payment Providers to the minimum extent required to complete your transactions.
Taxes.
The payments required under Section 7.1 (Processing Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under this Agreement. If Hadley determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Hadley shall collect such Sales Tax in addition to the payments required under Section 7.1 (Processing Fees) of this Agreement. If any service, or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Hadley, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Hadley for any liability or expense Hadley may incur in connection with such Sales Taxes. Upon Hadley’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
Withholding Taxes.
You agree to make all payments of fees to Hadley free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Hadley will be your sole responsibility, and you will provide Hadley with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
Recurring Contributions.
If you choose to set up a Recurring Contribution, your Recurring Contribution will continue indefinitely until terminated in accordance with the Agreement.
If you set up a Recurring Contribution in your Account, after your initial contribution date, your Recurring Contribution will automatically be debited from your linked bank account according to the schedule you specify in your Account (e.g., once a month, once every 2 weeks, etc.) (each a “Recurring Contribution Date”) and continue indefinitely (unless you cancel or opt-out in accordance in the procedures outlined in this section), subject to Hadley’s then-current Processing Fees. You agree that your Account will be subject to this Recurring Contribution schedule unless you cancel your Recurring Contribution by logging into and going to the “Contributions” page of your “Account Settings” page.
You may cancel scheduled Recurring Contributions at any time prior to each Recurring Contribution Date. By setting up Recurring Contributions, you authorize Hadley to charge your bank account for Processing Fees, and again at each Recurring Contribution Date. Upon each Recurring Contribution Date, if Hadley cannot charge your bank account, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Hadley may either terminate or suspend your Recurring Contribution and continue to attempt to charge your bank account until payment is received (upon receipt of payment, your Account will be activated and your Recurring Contributions will begin as of the day payment was received).
Free Trials and Other Promotions.
Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire, and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Hadley to have the charges reversed.
Advertising Revenue.
Hadley reserves the right to display Third-Party Ads before, after, or in conjunction with User Content posted on the Services, and you acknowledge and agree that Hadley has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by Hadley as a result of such advertising).
INDEMNIFICATION.
You agree to indemnify and hold Hadley, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Hadley Party” and collectively, the “Hadley Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Hadley Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Hadley 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 Hadley in asserting any available defenses. This provision does not require you to indemnify any of the Hadley Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Hadley Properties.
DISCLAIMER OF WARRANTIES AND CONDITIONS.
As Is.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF HADLEY PROPERTIES IS AT YOUR SOLE RISK, AND HADLEY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. HADLEY 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 WEBSITE. This Section 9 (Disclaimer of Warranties and Conditions) does not affect in any way our return policy or limited warranty for goods purchased on the Website.
(a)
HADLEY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) HADLEY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF HADLEY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF HADLEY PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b)
THE AVAILABILITY OF THE SERVICES IS SUBJECT TO THE RULES AND REGULATIONS FOR EACH PLAN AS DETERMINED BY THE STATE PLAN SPONSORS. HADLEY MAY NOT BE ABLE TO PROVIDE SERVICES IF SUCH SERVICES ARE DEEMED INELIGIBLE UNDER YOUR PLAN BY THE PLAN SPONSOR OR PLAN ADMINISTRATOR.
(c)
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. HADLEY 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 HADLEY OR THROUGH HADLEY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e)
From time to time, Hadley may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Hadley’s sole discretion. The provisions of this section apply with full force to such features or tools.
No Liability for Conduct of Third Parties.
YOU ACKNOWLEDGE AND AGREE THAT HADLEY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD HADLEY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PLAN ADMINSTRATORS, PAYMENT PROVIDERS, AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
Third-Party Materials.
As a part of Hadley Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Hadley to monitor such materials and that you access these materials at your own risk.
LIMITATION OF LIABILITY.
Disclaimer of Certain Damages.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL HADLEY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT HADLEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF HADLEY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE HADLEY PROPERTIES; (b) 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 HADLEY PROPERTIES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON HADLEY PROPERTIES; OR (e) ANY OTHER MATTER RELATED TO HADLEY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A HADLEY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A HADLEY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A HADLEY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Cap on Liability.
TO THE FULLEST EXTENT PROVIDED BY LAW, HADLEY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO Hadley by you during the one-month period prior to the act, omission or occurrence giving rise to such liability; (b) $100; or (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A HADLEY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A HADLEY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A HADLEY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
User Content.
EXCEPT FOR HADLEY’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN HADLEY’S PRIVACY POLICY, HADLEY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
Exclusion of Damages.
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HADLEY AND YOU.
TERM AND TERMINATION.
Term.
The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Hadley Properties, unless terminated earlier in accordance with the Agreement.
Prior Use.
Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Hadley Properties or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Hadley Properties, unless earlier terminated in accordance with the Agreement.
Termination of Services by Hadley.
Except as set forth above, the Processing Fee for any Service shall be non-refundable. If timely payment cannot be charged to your bank account for any reason, if you have materially breached any provision of the Agreement, or if Hadley is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful), Hadley has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Hadley’s sole discretion and that Hadley shall not be liable to you or any third-party for any termination of your Account.
Termination of Services by You.
If you want to terminate the Services provided by Hadley, you may do so by (a) notifying Hadley at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Hadley’s address set forth below. RECURRING CONTRIBUTIONS WILL CONTINUE UNLESS YOU CANCEL YOUR RECURRING CONTRIBUTIONS IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 7.7 (RECURRING CONTRIBUTIONS).
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), including Your Content. 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 Your Content associated therewith from our live databases. Hadley will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
No Subsequent Registration.
If your registration(s) with, or ability to access, Hadley Properties or any other Hadley community, is discontinued by Hadley due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Hadley Properties or any Hadley community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Hadley Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Hadley reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Hadley arbitrate disputes against one another
Applicability of Arbitration Agreement.
Subject to the terms of this Arbitration Agreement, you and Hadley agree that any dispute, claim, or disagreements arising out of or relating in any way to your access to or use of the Services or of the Application , any Communications you receive, any products sold or distributed through the Application, the Services or the Agreement and prior versions of the Agreement, including claims and disputes and arose between us before the effective data of this Agreement (each, a “Dispute”), will be resolved by binding arbitration, rather than in court, except that (1) you and Hadley may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Hadley 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).
For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this Agreement or any prior versions of the Agreement as well as claims that may arise after the termination of this Agreement.
Informal Dispute Resolution.
There might be instances when a Dispute arises between you and Hadley. If that occurs, Hadley is committed to working with you to reach a reasonable resolution. You and Hadley agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Hadley therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Hadley that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [email protected] or regular mail to our offices Hadley Investment Co., Attn: Legal Department, 54 Danbury Road, Suite 224, Ridgefield, CT 06877. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
Waiver of Jury Trial.
YOU AND HADLEY 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 HADLEY are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief.
YOU AND HADLEY AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 12.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 12.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Hadley agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Hadley from participating in a class-wide settlement of claims.
Rules and Forum.
The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Hadley agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Hadley otherwise agree, or the Batch Arbitration process discussed in subsection 12.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Hadley agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
Arbitrator.
The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 12.9 is triggered, the AAA will appoint the arbitrator for each batch.
Authority of Arbitrator.
The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. 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 award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
Attorneys’ Fees and Costs.
The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Hadley need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
Batch Arbitration.
To increase the efficiency of administration and resolution of arbitrations, you and Hadley agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Hadley by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Hadley.
You and Hadley agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
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: Hadley Investment Co., Attn: Legal Department, 54 Danbury Road, Suite 224, Ridgefield, CT 06877 within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Hadley 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.
Invalidity, Expiration.
Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, 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. You further agree that any Dispute that you have with Hadley as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Modification.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Hadley makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Hadley at Hadley Investment Co., Attn: Legal Department, 54 Danbury Road, Suite 224, Ridgefield, CT 06877, your continued use of the Application and/or Services, including the acceptance of services offered on the Application following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services or of the Application, any Communications you receive, the Services, or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. Hadley will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
THIRD-PARTY SERVICES.
App Stores.
You acknowledge and agree that the availability of the Application and the Services is dependent on the third-party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Company and not with the App Store. Company, not the App Store, is solely responsible for Company Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Company Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Company Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
Accessing and Downloading the Application from iTunes.
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a)
You acknowledge and agree that (i) the Agreement is concluded between you and Hadley only, and not Apple, and (ii) Hadley, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b)
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c)
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Hadley and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Hadley.
(d)
You and Hadley acknowledge that, as between Hadley and Apple, Apple is not responsible for addressing any claims you have or any claims of any third-party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e)
You and Hadley acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third-party’s intellectual property rights, as between Hadley and Apple, Hadley, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f)
You and Hadley acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g)
Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
GENERAL PROVISIONS.
Electronic Communications.
The communications between you and Hadley may take place via electronic means, whether you visit Hadley Properties or send Hadley e-mails, or whether Hadley posts notices on Hadley Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Hadley in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Hadley 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, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
Assignment.
The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Hadley’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure.
Hadley 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.
Questions, Complaints, Claims.
If you have any questions, complaints or claims with respect to Hadley 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.
Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Hadley 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 San Francisco, CA.
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 the AGREEMENT.
Choice of Language.
It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
Notice.
Where Hadley requires that you provide an e-mail address, you are responsible for providing Hadley with your most current e-mail address. In the event that the last e-mail address you provided to Hadley is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Hadley’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Hadley at the following address: Hadley Investment Co., Attn: Legal Department, 54 Danbury Road, Suite 224, Ridgefield, CT 06877. Such notice shall be deemed given when received by Hadley by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
Waiver.
Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
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.
Export Control.
You may not use, export, import, or transfer Hadley Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Hadley Properties, and any other applicable laws. In particular, but without limitation, Hadley 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 Hadley 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 Hadley 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 Hadley 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 Hadley products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Consumer Complaints.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
Entire Agreement.
The Agreement is 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.
