The use of the NetCapital Funding Portal Inc. (“Netcapital”) crowdfunding web site (the “Site”) requires that every user (the “User”) provide the Site with a binding electronic signature that accepts the terms and conditions of several agreements, referred to as the “Transaction Documents” including the:
- Copyright Policy;
- Terms of Service;
- Master Investor Agreement;
- Issuer Agreement;
- Transfer Agent Agreement; and
- Record Ownership and Voting Agreement.
Some of the Transaction Documents are applicable only to an issuer and some are applicable only to an investor. However, most of the Transaction Documents must be electronically signed by every User, and if you acknowledge your agreement to any of the above Transaction Documents, with your electronic signature, you must also agree to this Arbitration Agreement (“Agreement”). For the Transfer Agent Agreement, an independent independent transfer agent corporation also require you to agree to exclusive jurisdiction in the state of New Jersey.
You and Netcapital agree that, except as provided in the section “Exceptions to Arbitration” below, all disputes, controversies and claims related to the Transaction Documents (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Agreement and the JAMS Rules, the terms in this Agreement will control and prevail.
Except as otherwise set forth in this Agreement, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator may provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) you and Netcapital may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
By becoming a User on the Site, you agree to arbitrate controversies. You agree that any controversy, dispute, claim or grievance between us, any of our affiliates, or our or their shareholders, officers, directors, employees, associates or agents, and you or, if applicable, your shareholders, officers, directors, employees, associates or agents, arising out of, or relating to, this Agreement, or any service provided by us, including transactions of any kind made on your behalf through us, shall be resolved by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. If you are not a resident of the U.S. at the time a controversy subject to arbitration arises, you agree that any arbitration hearing shall be held in Boston Massachusetts; you consent to the personal jurisdiction of all courts located in the Commonwealth of Massachusetts for purposes of enforcing this arbitration agreement and any arbitration award; and you agree that any arbitration proceeding shall be conducted in the English language. If any party unsuccessfully resists confirmation or enforcement of an arbitration award rendered under this agreement, then all costs, attorneys' fees, and expenses incurred by the other party or parties in confirming or enforcing the award shall be fully assessed against and paid by the party resisting confirmation or enforcement of the award. Class Actions. No person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against any person who has initiated in court a putative class action, or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action, until: (i) the class certification is denied; or (ii) the class is decertified; or (iii) the customer is excluded from the class by the court. Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this Agreement except to the extent stated herein.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND NETCAPITAL WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
Unless required by the Escrow Agreement or the Transfer Agent Agreement to be elsewhere, the arbitration will be conducted in Boston, Massachusetts or the nearest JAMS office to Boston, Massachusetts, unless the parties agree to video, phone and/or internet connection appearances.
You and Netcapital agree that any arbitration shall be limited to the Claim between Netcapital and you individually. YOU AND NETCAPITAL AGREE THAT: (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
Exceptions to JAMS Arbitration
Notwithstanding the foregoing provisions of this Agreement, any Claims involving Netcapital that are required to be arbitrated in accordance with the FINRA Rules (e.g., under FINRA Rule 12000 et seq.) shall be subject to arbitration in FINRA’s dispute resolution forum and be conducted in accordance with the applicable FINRA Code of Arbitration.
Exceptions to Arbitration
You and Netcapital agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Netcapital’s intellectual property rights; and (ii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
You and Netcapital agree that if any portion this Agreement is found illegal or unenforceable, that portion shall be severed and the remainder of the Agreement shall be given full force and effect.
By clicking on the button on the Site that signifies you agree to be bound by the terms of this Agreement, you also confirm to Netcapital that you acknowledge receipt of this Agreement.
Last updated February 28, 2018