Rising Tide Capital

Terms of Use

Last Updated: December 3, 2021

These terms of use (the “Terms of Use”) are a legal agreement between you and Rising Tide Capital, Inc. (“RTC,” “we,” “us,” or “our”).  These Terms of Use specify the terms under which you may access and use our website located at https://risingtidecapital.org/ (the “Website”), the Programs (defined below), and the learning management platform (the “Platform,” and together with the Website and Programs, the “Services”). By accepting these Terms of Use, accessing or using our Services, or otherwise manifesting your assent to these Terms of Use, you acknowledge that you have read, understood, and agree to be legally bound by these Terms of Use and our Privacy Policy, which is hereby incorporated by reference (collectively, this “Agreement”).  If you do not agree to (or cannot comply with) all of the terms of the Agreement, you may not access or use the Services. 

THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT, JURY WAIVER, AND CLASS ACTION WAIVER.  THEY AFFECT YOUR LEGAL RIGHTS.  PLEASE READ THEM. 

Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy. 

  1. OUR SERVICES AND USERS 

Our Services have several types of users: 

  • Visitors.  Visitors to our Website, as the term implies, are people who do not register for an account, but want to explore the Website for informational purposes.  No login is required for visitors to the Website.  Visitors can access all publicly-available content and features of the Website, and can contact us using the contact link on the Website.   
  • Participants. RTC offers various programs, including Community Business Academy, Business Acceleration Services, and Credit to Capital (“Programs”), to provide coaching and business development services to entrepreneurs looking to start or grow their business (collectively, “Participants”). If you are interested in joining one of our Programs you are required to submit an application, which is made available through our Website. If you submit an application, you represent and warrant that the information you provide is complete and accurate.  
  1. ACCOUNT REGISTRATION 

After we review your application, at our discretion we may choose to extend to you an invitation to participate in the specified Program. RTC is under no obligation to accept any individual, and may accept or reject any applications in our sole and complete discretion. 

 If your application to one of our Programs is accepted, you will be required to register on the Platform. If you elect to register with us, you may log in to the Platform using a third-party login provider (e.g., Facebook, Instagram, or Twitter).  If you do not wish to log in using these third-party access credentials, you will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist us in authenticating your identity when you log in in the future (“Unique Identifiers”). Each Sign-In Name and corresponding Password can be used by only one Participant.  You are solely responsible for the confidentiality and use of your Sign-In Name and Password, as well as for any use, misuse, or communications entered through the Platform using your account.  You will promptly inform us of any need to deactivate a Sign-In Name or Password.  We reserve the right to delete or change your Sign-In Name or Password at any time and for any reason and shall have no liability to you for any loss or damage caused by such action.  We will not be liable for any loss or damage caused by any unauthorized use of your account. 

Our meetings and classes for our Programs are now provided remotely through live-stream video sessions (“Video Sessions”). In order to access the Video Sessions, you will need to create an account with our live-stream video provider, Zoom. By creating an account with Zoom, you agree to Zoom’s Terms of Service and Privacy Statement, available at https://zoom.us/terms and https://zoom.us/privacy, respectively (collectively, the “Zoom Policies”). 

3. COMMUNITY GUIDELINES 

Our community, like any community, functions best when its users follow a few simple rules.  By accessing the Services, you agree to comply with these community guidelines (the “Community Guidelines”) and that:    

You will not upload, post, chat, e-mail, transmit, or otherwise make available any content, including  Participant Content (defined below) that:  

  • infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity;  
  • is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence or illegal activity, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity);
  • or discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.  

You will comply with all applicable laws in your use of the Services and will not use the Services for any unlawful purpose;  

You will not sell, transfer, assign, license, sublicense, or modify the Content (defined below) or Services, or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content or Services in any way for any public or commercial purpose;    

You will not access or use the Services to collect any market research for a competing business;  You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;   

You will not interfere with or attempt to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Content (as defined below), data, files, or passwords related to the Services through hacking, password or data mining, or any other means;   

You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Services;  You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the Content protections in the Services;  

You will not use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express, written permission; provided, however, that we may grant the operators of public search engines permission to use spiders to copy materials from the public portions of 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;   

You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and  

You will not introduce, post, or upload to the Services any Harmful Code. As used herein, “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Services to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Services.  

If you find something that violates our Community Guidelines, please let us know, and we’ll review it.  

4. PROGRAM FEES 

When you accept our invitation to participate in our Programs and/or purchase additional coaching sessions, you will be responsible for all purchase prices, taxes, and other fees in connection with the purchase in the manner specified on or selected through the Services. Payment is due immediately upon making a purchase.  By making a purchase, you agree to pay RTC, through our third party payment processors, including, but not limited to, AppFrontier (Chargent) all charges that may be incurred by you or on your behalf at the prices then in effect for the purchase. By making a purchase, you also agree to AppFrontier’s Terms and Conditions and Privacy Policy. All program purchases are final purchases and non-refundable.  

  1. INTELLECTUAL PROPERTY 

The Services contain materials, such as software, text, graphics, images, video, sound recordings, and other materials provided by or on behalf of RTC (collectively referred to as the “Content”).  The Content and Services may be owned by us or third parties.  The Content and Services are protected under both United States and foreign laws.  Unauthorized use of the Content or Services may violate copyright, trademark, and other laws.   

You may use the Services and view all Content for your own personal, non-commercial use, and no other use is permitted without the prior written consent of RTC.  RTC and its licensors retain all right, title, and interest, including all intellectual property rights, in and to the Content and Services.  You must retain all copyright and other proprietary notices incorporated in the Services or the original Content.  We reserve the right to remove Content from our Services at any time for any reason without any notice to you. 

If you violate any part of this Agreement, your permission to access the Content and the Services automatically terminates and you must immediately destroy any copies you have made of the Content. 

The trademarks, service marks, and logos of RTC (the “RTC Trademarks”) used and displayed on the Services are owned by RTC.  Other company, product, and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with RTC Trademarks, the “Trademarks”).  Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use.  Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing.  All goodwill generated from the use of RTC Trademarks inures to our benefit.  

Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors.  None of the Content may be retransmitted without our express, written consent for each and every instance. 

  1. VIDEO RECORDINGS 

Our programs are facilitated through live-stream video sessions led by our instructors. We may record some or all live-stream sessions to ensure they run smoothly, to ensure that Participants are receiving appropriate content, and to provide instructors training and feedback. We use Zoom for all live-stream video sessions. By taking part in a session over Zoom, you agree to the Zoom Terms of Service and Privacy Policy.   

  1. PARTICIPANT CONTENT 

The Platform allows Participants and Program instructors to interact and send messages and other content to each other (collectively, “Participant Content”).  You, and not RTC, are entirely responsible for all Participant Content that you upload, post or otherwise transmit through the Platform. We are not obligated to transmit any Participant Content through our Platform, and we reserve the right to remove any Participant Content at any time in our sole discretion, with or without notice. 

To the extent permitted by law, you and your licensors retain all copyrights and other intellectual property rights in and to your own Participant Content.  You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual, irrevocable license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, display, perform, and otherwise use or exploit your Participant Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised, to provide and promote the Services.     

  1. COMMUNICATIONS WITH US 

Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you. 

  1. PERSONAL RELEASE 

AS A PARTICIPANT, YOU UNDERSTAND THAT RTC WISHES TO OBTAIN THE RIGHT TO RECORD AND USE YOUR NAME, IMAGE, PICTURE, PHOTOGRAPH, BIOGRAPHY, LIKENESS, VOICE, PERFORMANCE, AND/OR OTHER PERSONAL IDENTIFICATION PROVIDED BY YOU TO RTC, WHETHER AS PART OF YOUR CONTRIBUTED PARTICIPANT CONTENT OR OTHERWISE (COLLECTIVELY, THE “MATERIAL”), ON VIDEOTAPE, FILM, OR ANY OTHER AUDIO AND/OR VISUAL MEDIUM FOR USE IN CONNECTION WITH PROMOTING RTC AND THE PROGRAMS (“PROMOTION”). AS SUCH, PARTICIPANT GRANTS RTC AND OUR SUBSIDIARIES, AFFILIATES, AGENTS, NOMINEES, LICENSEES, SUCCESSORS AND ASSIGNS, AND THOSE ACTING WITH OUR AUTHORITY (“AFFILIATES”), THE UNRESTRICTED, ABSOLUTE, PERPETUAL, WORLDWIDE RIGHT TO RECORD, REPRODUCE, COPY, EDIT, ADD TO, SUBTRACT FROM, MODIFY, USE, REUSE, DISPLAY, PERFORM, EXHIBIT, DISTRIBUTE, TRANSMIT, EXPLOIT, AND/OR BROADCAST THE MATERIAL, WITHOUT LIMITATION, IN AND IN CONNECTION WITH THE PROMOTION IN ANY MANNER, IN WHOLE OR IN PART, ALONE OR IN COMBINATION WITH ANY OTHER IMAGES OR VIDEOS, IN ANY MEDIA NOW KNOWN OR HEREAFTER DEVISED.  SUCH USE MAY ALSO INCLUDE ADVERTISING AND PROMOTION IN ANY MANNER OR MEDIA IN CONNECTION WITH THE PROMOTION.  

PARTICIPANT AGREES THAT RTC HAS NO OBLIGATION TO USE ANY OF THE MATERIAL, OR TO EXERCISE ANY RIGHT GRANTED HEREIN, AND THAT PARTICIPANT MAY NOT ENJOIN ANY EXPLOITATION OF THE PROMOTION AS PROVIDED ABOVE. IF RTC USES MATERIAL FOR PROMOTION, PARTICIPANT ACKNOWLEDGES THAT ITS RIGHT TO ACCESS AND USE THE SERVICES AS GRANTED IN THIS AGREEMENT SHALL BE THE SOLE COMPENSATION AND CONSIDERATION FOR THE RIGHTS IN AND TO THE MATERIALS THAT PARTICIPANT IS GRANTING HEREUNDER.  PARTICIPANT SHALL NOT BE ENTITLED TO ANY ADDITIONAL COMPENSATION HEREUNDER, INCLUDING, BUT NOT LIMITED TO, IN THE EVENT RTC COMMERCIALIZES THE MATERIAL OR THE PROMOTION. 

PARTICIPANT HEREBY UNCONDITIONALLY AND FOREVER RELEASES, INDEMNIFIES, AND HOLDS HARMLESS RTC AND OUR AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, OR ACTIONS THAT ARISE FROM USE OF THE MATERIAL, OR THAT PARTICIPANT OR PARTICIPANT’S HEIRS, EXECUTORS, ADMINISTRATORS, OR ASSIGNS MAY HAVE OR CLAIM TO HAVE IN CONNECTION WITH USE OF THE MATERIAL AS DESCRIBED HEREIN, AND PARTICIPANT AGREES NOT TO SUE OR BRING ANY PROCEEDING AGAINST ANY OF THOSE PARTIES FOR ANY CLAIM OR CAUSE OF ACTION, WHETHER PRESENTLY KNOWN OR UNKNOWN, INCLUDING, BUT NOT LIMITED TO ACTIONS FOR DEFAMATION, INVASION OF PARTICIPANT’S RIGHTS TO PRIVACY, PUBLICITY OR PERSONALITY OR ANY SIMILAR MATTER, OR BASED UPON OR RELATING TO THE EXERCISE OF ANY OF THE RIGHTS REFERRED TO HEREIN. 

  1. NO WARRANTIES; LIMITATION OF LIABILITY  

THE SERVICES AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE SERVICES OR CONTENT WILL BE ACCURATE OR OPERATE ERROR-FREE OR THAT THE SERVICES, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. 

WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.  

THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS LISTED ON THE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE SERVICES AND/OR ADD OR REMOVE CONTENT AT ANY TIME WITHOUT NOTICE.   

IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES OR THE CONTENT SHALL BE LIMITED TO FIFTY US DOLLARS ($50).   

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU. 

NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.  

  1. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.  
  1. You hereby represent, warrant, and covenant that: 
  • You own or have the necessary licenses, rights, consents, and permissions (collectively, “Permissions”) to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your Participant Content, and any other works that you incorporate into your Participant Content and all the rights necessary to grant the Permissions you grant hereunder;  
  • Use of Participant Content in the manners contemplated in these Terms of Use shall not violate or misappropriate the intellectual property, privacy, publicity, contractual, or other rights of any third party; and 
  • You will comply with the Community Guidelines. 
  1. You agree to defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Content or the Services;  (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right; and/or (iv) your violation of the Zoom Policies.  We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding.  We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section.  In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter. 
  1. EXTERNAL SITES.  

The Services may contain links to third-party websites (“External Sites”).  These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites.  The content of such External Sites is developed and provided by others.  You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites.  We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites.  You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs.  If you decide to access linked External Sites, you do so at your own risk. 

  1. DIGITAL MILLENNIUM COPYRIGHT ACT 

RTC respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content or Participant Content deemed to have been posted or distributed in violation of any such laws. 

Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows: 

Alex Forrester
Rising Tide Capital
PO Box 10188 
PMB 56701 
Newark, NJ 07101-3188

CopyrightViolations@RisingTideCapital.org

If you believe that your work has been copied on the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest. 

  1. COMPLIANCE WITH APPLICABLE LAWS 

The Services are based in the United States.  We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States.  If you access the Services or the Content from outside of the United States, you do so at your own risk.  Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction. 

  1. CHANGES TO THE AGREEMENT. 

These Terms of Use are effective as of the last updated date stated at the top.  We may change these Terms of Use from time to time with or without notice to you.  Any such changes will be posted on the Website. By accessing the Services after we make any such changes to these Terms of Use, you are deemed to have accepted such changes.  Please refer back to these Terms of Use on a regular basis.  

  1. TERMINATION OF THE AGREEMENT 

We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and the Services, and your access to all or any part of the Services, at any time and for any reason without prior notice or liability.  Sections 5, 7, 9-11, 16-21 shall survive the termination of this Agreement. 

  1. CONTROLLING LAW 

This Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions. 

  1. BINDING ARBITRATION 

In the event of a dispute arising under or relating to this Agreement, the Content, or the Services (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”).  Any election to arbitrate, at any time, shall be final and binding on the other party. NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION.  ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION.  All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA.  The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration.  As set forth in Section 20 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.  

  1. CLASS ACTION WAIVER 

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. 

  1. EQUITABLE RELIEF 

You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. All such claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the State of New York. 

  1. MISCELLANEOUS   

Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement.  No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.  Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter.  The section headings are provided merely for convenience and shall not be given any legal import.  This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.