The Kolter Group LLC (hereinafter referred to as “Kolter,” “us,” “we,” or “our”) is providing you with these Services to familiarize you with Kolter, and its products and services. The Services are not intended to constitute an offer or solicitation. Because some jurisdictions require prior registration or other qualifications of real estate before solicitation is allowed, Kolter’s responses to your inquiries may be prohibited or limited. You agree that content or information provided to you on or via the Services is void where prohibited by law.
CONSIDERATION AND YOUR COMPLIANCE WITH THIS AGREEMENT
You acknowledge that this Agreement is supported by reasonable and valuable consideration, the receipt and adequacy of which is hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your ability to visit, use and/or submit information to or from the Services.
YOUR ACCESS AND USE OF THE SERVICES
Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Services or other actions that Kolter, in its sole discretion and without prior notice, may elect to take. Kolter reserves the right to suspend or discontinue the availability of the Services and/or any portion or feature of the Services at any time in its sole discretion and without prior notice.
The information contained in the Services is for informational purposes only and shall not be construed or deemed to: (i) constitute an offer to sell any of the homes, services, or communities described or referred to on the Services, or (ii) be an offering or a solicitation in those states where prior registration is required. Offers to purchase our homes may only be made and accepted at the sales center located at the applicable community, and by execution of a written purchase contract by the parties thereto. In addition, if prior registration under the laws of your state is required, please understand that we may not be able to provide you with information.
THE SERVICES ARE NOT INTENDED FOR MINORS
The Services are intended to be accessed and used only by adults and are not directed to children under the age of 18. We do not knowingly collect personally identifiable information from anyone under the age of 18 and you should not provide us with any information regarding any individual under the age of 18. You warrant that you are at least 18 years of age or, if living in a jurisdiction that maintains an older age of Majority, at least such an age.
TRANSMISSIONS, SUBMISSIONS AND POSTINGS TO THE SERVICES
If you transmit, submit or post information to the Services that are not Federally trademarked and/or copyrighted, you automatically grant Kolter and its affiliates the worldwide, fully-paid, royalty-free, exclusive right and license to use, copy, format, adapt, publish and/or incorporate any or all such information in any media whatsoever, including, without limitation, the Content (as defined below). Provided that you have obtained prior written permission from Kolter to transmit, submit or post information to the Services that are Federally trademarked and/or copyrighted, you automatically grant Kolter and its affiliates the worldwide, fully-paid, royalty-free right to use, copy, format, adapt, publish and/or incorporate any or all such information in any media whatsoever, including, without limitation the Content.
You shall not transmit, submit or post the following to the Services:
Information that infringes Kolter’s or any third party’s copyright, patent, trademark, trade secret or other proprietary rights;
Information that violates any law, statute, ordinance or regulation;
Information that is trade libelous, unlawfully threatening, unlawfully harassing, defamatory, obscene, explicit or vulgar, or otherwise injurious to Kolter or third parties or that infringes on Kolter’s or any third party’s rights of publicity or privacy;
Information that contains any viruses, worms, Trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots or other code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
Information containing or constituting chain letters, mass mailings, political campaigning, or any form of “spam;”
Information that is false, inaccurate or misleading;
Commercial advertisements or solicitations without written permission from Kolter; or
Federally Trademarked and/or Copyrighted information without written permission from Kolter.
NAMES USED/INTELLECTUAL PROPERTY RIGHTS
The names “Kolter Group,” “Kolter,” “Kolter Homes,” “Kolter Signature Homes,” ” Kolter Land Partner,” Kolter Commercial,” ” Kolter Hospitality,” “Kolter Urban,” ” Kolter Tower,” “KAST Construction,” “KAST,” “Clearway Capital,” “Cresswind,” “CTC,” “CTC Mortgage,” “CTC Mortgage Company,” “K Mortgage,” “K Mortgage Company,” “K Title Company,” “K Title,” “Eco-Nomics,” the name of each Kolter community, and Kolter’s graphics, logos, page headers, button icons, scripts, and service names are trademarks and/or trade dress of Kolter or its affiliates, in the United States and/or other countries (collectively, the “Proprietary Marks”). You may not use the Proprietary Marks without the prior express written permission of Kolter, which permission may be withheld in Kolter’s sole discretion. Kolter makes no proprietary claim to any third-party names, trademarks or service marks appearing on the Services. Any third-party names, trademarks, and service marks are property of their respective owners.
For the purposes of the Services, the names “Kolter” or “Kolter Group” shall be deemed to refer to “The Kolter Group LLC,” the name “Kolter Homes” or “Kolter Signature Homes” shall be deemed to refer to “Kolter Homes LLC,” the names “Kolter Land Partners,” “Kolter Land” or “KLP” shall be deemed to refer to “Kolter Land Partners LLC”, the name “Kolter Commercial” shall be deemed to refer to “Kolter Commercial LLC,” the name “Kolter Hospitality” shall be deemed to refer to “Kolter Hospitality LLC,” the name “Kolter Urban” or “Kolter Tower” shall be deemed to refer to “Kolter Urban LLC,” the names “KAST Construction” or “KAST” shall be deemed to refer to “KAST Construction Company LLC,” the names “CTC,” “CTC Mortgage,” or “CTC Mortgage Company” shall be deemed to refer to “CTC Mortgage Company LLC,” the names “K Title Company” or “K Title” shall be deemed to refer to “K Title Company LLC,” and the names “K Mortgage Company” or “K Mortgage” shall be deemed to refer to “K Mortgage Company LLC.”
The information, advice, data, software and content viewable on, contained in, or downloadable from, the Services (collectively, the “Content”), including, without limitation, all text, graphics, charts, pictures, photographs, images, line art, icons, renditions and floor plans, are copyrighted by, or otherwise licensed to, Kolter or its Content suppliers. Kolter may also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of the Content (the “Collective Work”). All software used on the Services (the “Software”) is the property of Kolter or its software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using the Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to the Content, the Collective Work or the Software.
You are solely responsible for any damage resulting from your infringement of Kolter’s or any third party’s intellectual property rights regarding the Proprietary Marks, the Content, the Collective Work, the Software and/or any other harm incurred by Kolter or its affiliates as a direct or indirect result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.
YOUR USE OF THE CONTENT
Kolter grants you a limited license to access, print, download or otherwise make personal use of the Content and the Collective Work in the form of: (i) one machine-readable copy; (ii) one backup copy; and (iii) one print copy, for your non-commercial use; provided, however, that you shall not delete any proprietary notices or materials with regard to the foregoing manifestations of the Content and the Collective Work. You may not modify the Content or the Collective Work or utilize them for any commercial purpose or any other public display, performance, sale, or rental, decomposition, reverse engineering, or disassembly of the Content and the Collective Work, or transfer the Content or the Collective Work to another person or entity.
Except as otherwise permitted under the copyright laws of the United States, no other copying, distribution, redistribution, transmission, publication or use, other than the non-commercial use of the Content and the Collective Work as permitted by this Agreement, is permitted by you without the express prior written permission of Kolter, which permission may be withheld in Kolter’s sole and absolute discretion.
You may not use any meta-tags or any other “hidden text” utilizing Kolter’s name or trademarks without the express written permission of Kolter, which permission may be withheld in Kolter’s sole and absolute discretion.
ACCESS AND INTERFERENCE
You agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Services or any portion of the Services or for any other purpose, without Kolter’s express written permission, which may be withheld in Kolter’s sole and absolute discretion. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in Kolter’s sole and absolute discretion an unreasonable or disproportionately large load on Kolter’s infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from the Services without the prior written permission of Kolter and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (iv) bypass Kolter’s robot exclusion headers or other measures Kolter may use to prevent or restrict access to the Services. Notwithstanding the foregoing, Kolter grants the operators of public search engines permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Kolter reserves the right to revoke these exceptions either generally or in specific cases. You shall not collect or harvest any personally identifiable information, including account names, from the Services. You shall not use any communications systems provided on the Services (i.e., Forums or email) for any commercial or solicitation purposes. You agree not to solicit for commercial purposes any users of the Services without our prior, written consent, which consent may be withheld in Kolter’s sole discretion.
When you visit the Services or send email to Kolter, you are communicating with Kolter electronically. You consent to receive communications from Kolter electronically. Although Kolter may choose to communicate with you by regular mail, Kolter may also choose to communicate with you by e-mail or by posting notices on the Services. You agree that all agreements, notices, disclosures and other communications that Kolter provides to you electronically satisfy any legal requirement that such communications be in writing.
YOUR RESPONSIBILITY FOR EQUIPMENT AND RELATED COSTS
You are responsible for obtaining and maintaining all telephone, computer hardware, Internet access services and other equipment or services needed to access and use the Services, and for all costs and fees associated with Internet access or long distance charges incurred with regard to your access and use of the Services.
There may be provided on the Services links to other Web sites, applications or services belonging to Kolter’s advertisers, business partners, affiliates and other third parties. Such links do not constitute an endorsement by Kolter of those Web sites, applications or services nor the products or services listed on those Web sites, applications or services. Kolter is not responsible for the activities or policies (including without limitation the Privacy Policies) of those Web sites, applications or services. Kolter does not endorse or recommend the products of any particular advertiser, business partner, affiliate or other third party.
If Kolter provides aspects of the Services via an application for your mobile or other device, please be aware that your carrier’s normal rates and fees may apply and that the terms of this Agreement and other agreements within the application apply to your use of such mobile application.
SPECIAL DISCLOSURES REGARDING KOLTER’S COMMUNITIES
Many of Kolter’s communities are subject to developer agreements for (without limitation) gas, cable, television, security monitoring, high-speed internet, broadband, digital and other services, which provide for credits, allowances, and/or rebates, and in some cases provide for revenue sharing between the service provider and Kolter or its affiliates and/or reimbursement for certain costs to Kolter or its affiliates. In certain Kolter communities, Kolter or one of its affiliates may be or become the sole supplier of certain services.
In certain Kolter communities, if you purchase a lot (or resale lot) or home from an approved builder other than Kolter, or its affiliates, Kolter may be entitled to a marketing fee and/or brokerage commission from the approved builder, which may be paid by the approved builder or may be charged to the purchaser. Prospective purchasers should check with their builder as to payment of this fee/commission.
Kolter welcomes and encourages broker participation, but will only honor agreements with brokers or sales agents that are printed, written agreements, signed by a duly authorized officer of Kolter. Nothing on the Services or within this Agreement shall entitle any person to any fee, compensation or commission nor constitute any agreement, promise, covenant or undertaking with respect to brokers or sales agents representing potential buyers or sellers.
CLUBS AND MEMBERSHIPS
Certain references to clubs, golf clubs, homeowners’ association memberships, condominium association memberships, and other membership opportunities and amenities may be subject to applications, fees, dues, periodical regular assessments, special assessments, capital contributions upon purchase or sale, and availability. Such limitations are subject to change.
EQUAL HOUSING OPPORTUNITY
Kolter is committed to equal housing opportunities and encourages and supports eliminating barriers to obtaining housing due to race, color, religion, sex, handicap, familial status, or national origin. Kolter will not knowingly publish or accept any advertising for real estate, which is in violation of the law. All persons are hereby informed that all dwellings advertised by Kolter are available on an equal opportunity basis.
FEATURES, SPECIFICATIONS, RENDERINGS, PICTURES, FLOOR PLANS, AND SITE PLANS
Kolter takes reasonable steps to ensure that information provided to you is as accurate as possible. Kolter, however, does not warrant the accuracy or completeness of any information, graphics, text, links or other materials contained within the Services. All prices, features, renderings, floor plans, site plans, community maps, pictures, dimensions, specifications and other descriptions of products and services provided on the Services are subject to change without notice to you. Without limiting the generality of the foregoing:
All maps are artist’s renderings, are subject to change, are not to scale, and are provided to you for relative location purposes only;
Actual distances may vary;
Renderings, floor plans, and elevations are artist’s renderings, are subject to change, and may contain options which are not standard on all models;
The specific features in a home may vary from home to home and from one community to another;
Prices shown may refer to a “base” home and may not include optional features, and photos or drawings of homes may show upgraded landscaping, which may not represent the lower-priced homes in the community;
Kolter reserves the right to substitute equipment, materials, appliances and brand names with items of equal or higher value, as determined in Kolter’s sole opinion;
Color and size variations may occur;
Stated dimensions and square footage are approximate and should not be used as an actual representation of a home’s size;
Kolter does not represent or warrant that any zoning or land use reflected on properties surrounding Kolter’s communities may not change in the future, and cannot control future development surrounding its communities;
“Eco-Nomics” and other green, sustainable, healthy living or earth-friendly features are not standard in all communities, may vary from home to home, may vary from community to community; and
Performance or results of a home or community intended to result in energy savings, healthy living, sustainability or other benefits may vary due to specific use of a home or community, among other factors.
It is Kolter’s policy to comply with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512, including, without limitation, responding to notices of alleged copyright infringement, and other applicable intellectual property laws. Kolter shall in appropriate circumstances disable and/or terminate the accounts of users who may infringe or repeatedly infringe the copyrights or other intellectual property rights of Kolter and/or others.
Notifications (each a “Notification,” as further defined below) of claimed copyright infringement should be sent by either express mail or U.S. mail to Kolter’s designated agent. Kolter’s designated agent contact information to which notification should be sent is set forth below:
General Counsel 105 NE 1st Street, Delray Beach, FL 33444. Email address of designated agent: firstname.lastname@example.org
Pursuant to Title 17, United States Code, Section 512(c)(3), to be effective, the Notification must include the following:
A physical or electronic signature of a person authorized to act on behalf of the owner (“Complaining Party”) of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single Notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Kolter to locate the material;
Information reasonably sufficient to permit Kolter to contact the Complaining Party, such as an address, telephone number, and if available, an electronic mail address at which the Complaining Party may be contacted;
A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the Notification is accurate, and under penalty of perjury, that the Complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Upon receipt of the written Notification containing the information as outlined in 1 through 6 above, and pursuant to Title 17, United States Code, Section 512:
Kolter will remove or disable access to the material that is alleged to be infringing;
Kolter will forward the written Notification to the alleged infringer (“Subscriber”); and
Kolter will take reasonable steps to promptly notify the Subscriber that Kolter has removed or disabled access to the material.
Pursuant to Title 17, United States Code, Section 512(g)(3), a Subscriber may counter a Notification by providing a written communication (“Counter Notification”) to Kolter’s designated agent that includes substantially the following:
A physical or electronic signature of the Subscriber;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that the Subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
The Subscriber’s name, address, and telephone number, and a statement that the Subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the Subscriber’s address is outside of the United States, for any judicial district in which Kolter may be found, and that the Subscriber will accept service of process from the Complaining Party or an agent thereof.
Upon receipt of a Counter Notification containing the information as outlined in 1 through 4 above, and pursuant to Title 17, United States Code, Section 512:
Kolter will promptly provide the Complaining Party with a copy of the Counter Notification;
Kolter will inform the Complaining Party that Kolter will replace the removed material or cease disabling access to the removed material within ten (10) business days; and
Kolter will replace the removed material or cease disabling access to the removed material not less than ten (10) nor more than fourteen (14) business days following receipt of the Counter Notification, provided Kolter’s designated agent has not received notice from the Complaining Party that an action has been filed seeking a court order to restrain the Subscriber from engaging in infringing activity relating to the removed material on Kolter’s network or system.
Kolter Makes No Representations or Warranties Regarding the Content
THE CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. KOLTER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR ASSOCIATED WITH THE SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND ALL PRODUCTS AND SERVICES INCLUDED ON OR ASSOCIATED WITH THE SERVICES IS AT YOUR SOLE RISK. ANY REFERENCE TO THE HISTORICAL OR PROFORMA SIZE, PERFORMANCE, OR FINANCIAL PROJECTIONS OF THE KOLTER GROUP LLC, KOLTER HOMES LLC, KOLTER URBAN LLC, KOLTER LAND PARTNERS LLC, KOLTER HOSPITALITY LLC, OR ANY OF THEIR SUBSIDIARY OR PARENT ENTITIES IS DEEMED TO INCLUDE REFERENCE TO ALL SUCH ENTITIES PREDECESSORS AND AFFILIATES.
KOLTER DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES, NOR THE SAFETY, RELIABILITY, TITLE, TIMELINESS, COMPLETENESS, MERCHANTABILITY, CONFORMITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES. IT IS YOUR SOLE RESPONSIBILITY TO INDEPENDENTLY EVALUATE THE ACCURACY, CORRECTNESS AND/OR COMPLETENESS OF THE CONTENT AND THE SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES. KOLTER MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE FOR DOWNLOADING FROM THE SERVICES IS FREE OF INFECTION FROM ANY VIRUSES, WORMS, TROJAN HORSES, TRAP DOORS, BACK DOORS, EASTER EGGS, TIME BOMBS, CANCELBOTS OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
THE SERVICES ARE CONTROLLED AND OFFERED BY KOLTER FROM FACILITIES IN THE UNITED STATES OF AMERICA. KOLTER MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER JURISDICTIONS. IF YOU ACCESS OR USE THE SERVICES FROM OTHER JURISDICTIONS, THEN YOU DO SO BY YOUR OWN VOLITION AND ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
LIMITATIONS ON KOLTER’S LIABILITY
KOLTER SHALL IN NO EVENT BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (II) YOUR ACCESS AND USE OF THE SERVICES; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE THE SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF THE CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; (V) YOUR RELIANCE UPON OR USE OF THE CONTENT OR THE COLLECTIVE WORK, OR (VI) ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH THE SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICES, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF KOLTER AND/OR ITS SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. KOLTER’S LIABILITY AND THE LIABILITY OF ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS ARISING FROM THE SERVICES OR OUT OF THIS AGREEMENT SHALL NOT EXCEED $100.
YOU SPECIFICALLY ACKNOWLEDGE THAT KOLTER SHALL NOT BE LIABLE FOR USER GENERATED CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM SUCH USER GENERATED CONTENT AND THIRD-PARTY CONDUCT RESTS ENTIRELY WITH YOU.
YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you.
YOUR INDEMNIFICATION OF KOLTER
You shall defend, indemnify and hold harmless Kolter and its officers, directors, shareholders, employees, independent contractors, agents, representatives and affiliates from and against all claims, damages, losses and expenses, including, but not limited to, attorneys’ fees, arising out of, or attributable to: (i) any breach or violation of this Agreement by you; (ii) your failure to provide accurate, complete and current personally identifiable information requested or required by Kolter; (iii) your access or use of the Services; (iv) access or use of the Services under any password that may be issued to you; and/or (v) your transmissions, submissions or postings (i.e., your own User Generated Content).
AMENDMENTS OF THIS AGREEMENT
You acknowledge that Kolter may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, Kolter shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of Palm Beach County, Florida, or the United States District Court, Southern District of Florida. You consent to the jurisdiction of such court and waive any objection to the laying of venue of any such action or proceeding in such court. You agree that service of any court paper may be effected on such party by mail or in such other manner as may be provided under applicable laws, rules of procedure or local rules.
GOVERNING LAW; ARBITRATION
You agree that: (i) the Services shall be deemed solely based in the State of Florida; and (ii) the Services shall be deemed a passive website that does not give rise to personal jurisdiction over Kolter, either specific or general, in jurisdictions other than the State of Florida. This Agreement is to be governed by and construed in accordance with the internal laws of the State of Florida, without regard for principles of conflicts of laws. Any civil action, claim, dispute or proceeding arising out of or relating to this Agreement, except for an injunctive action regarding a breach or threatened breach of any provision of this Agreement by you as provided above, shall be referred to final and binding arbitration, before a single arbitrator, under the commercial arbitration rules of the American Arbitration Association in Palm Beach County, Florida. In the event that any limitation on the period of time for bringing an action, claim, dispute or proceeding against us, located in the “Limitations on Kolter’s Liability” section of this Agreement above, is determined or held to be inapplicable or unenforceable by any court, arbitration panel or other tribunal, then the statute of limitations for the State of Florida, including but not limited to Florida Statutes Section 95, shall apply to any such action, claim, dispute or proceeding referred to final or binding arbitration.
THEREFORE, YOU DO NOT HAVE THE OPPORTUNITY TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS AND YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. BY USING THE SERVICES YOU CONSENT TO THESE RESTRICTIONS.
You and Kolter shall select the arbitrator, and if you and Kolter are unable to reach agreement on selection of the arbitrator within thirty (30) days after the notice of arbitration is served, then the American Arbitration Association shall select the arbitrator. Arbitration shall not commence until the party requesting it has deposited One Thousand Dollars ($1,000.00) with the arbitrator for the arbitrator’s fees and costs. The party requesting arbitration shall advance such sums as are required from time to time by the arbitrator to pay the arbitrator’s fees and costs until the prevailing party is determined or the parties have agreed in writing to an alternate allocation of fees and costs.
Judgment upon any award rendered by the arbitrator shall be final, binding and conclusive upon you and Kolter and your and Kolter’s respective administrators, executors, legal representatives, successors and assigns, and may be entered in any court of competent jurisdiction. Notwithstanding the previous sentence, in no event shall either you or Kolter be entitled to punitive damages and both you and Kolter hereby waive your and Kolter’s respective rights to any punitive, special, indirect or consequential damages, including, but not limited to, damages for any loss of profit, revenue or business. Should a dispute arise and should the arbitration provisions herein become inapplicable or unenforceable, or in any instance of any lawsuit between you and Kolter, jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in Palm Beach County, Florida.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement. The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement, and shall not limit or otherwise affect in any way the meaning or interpretation of this Agreement.
FOR RESIDENTS OF THE STATE OF NEW YORK
The sponsor and principal(s) taking part in the public offering or sale are not incorporated in, located in, or resident in the State of New York;
The offering is neither made in the State of New York nor made to the residents of the State of New York;
The offering is not directed to any person or entity in the State of New York by, or on behalf of, the offeror or anyone acting with the offeror’s knowledge; and
No offering or purchase or sale of the security shall take place as a result of this offering, until all registration and filing requirements under the Martin Act and the Attorney General’s regulations are complied with; a written exemption is obtained pursuant to an application is granted pursuant to and in accordance with Cooperative Policy Statements #1 or #7; or a “No-Action” request is granted.