Crescent User Agreement
These Terms of Use (these “Terms”) govern your access to and use of any website or mobile application (the “Platform”) and the services offered by or through Crescent Financial Inc. (“Crescent”). The words “you,” “your,” “yours,” used in these Terms means the entity on behalf of which the individual authorized to do so agrees to these Terms.
THESE TERMS CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND CRESCENT. PLEASE READ CAREFULLY THROUGH ALL SECTIONS OF THESE TERMS. YOU MUST AGREE TO THESE TERMS TO RECEIVE ACCESS TO AND PARTICIPATE IN OUR SERVICES. BY CLICKING ON A BOX OR ICON WHICH PROVIDES THAT YOU AGREE TO THESE TERMS, YOU AGREE TO THESE TERMS AS OF THE FIRST DATE OF ANY SUCH ACTION. IF YOU DO NOT FULLY UNDERSTAND, ACCEPT AND AGREE WITH THESE TERMS, DO NOT CLICK ON A BOX OR ICON WHICH PROVIDES THAT YOU AGREE TO THESE TERMS AND DO NOT ACCESS OR OTHERWISE PARTICIPATE IN OR USE THE SERVICES.
Mandatory arbitration notice and class action and jury trial waiver.
These Terms contains a mandatory (binding) arbitration provision and class action and jury trial waiver clauses. Except for certain types of disputes described in Section 12 or where prohibited by applicable law, you agree that disputes between you and Crescent regarding the Services (defined below), your use of the Platform, any account with us, or any transactions made pursuant to these Terms will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration. You have the right to reject this arbitration provision. For more details, see Section 12.
1. Crescent is a Financial Technology Company
Crescent provides certain visitors to the Platform with access to products and services (collectively, the “Services”) provided by third parties, including certain financial institutions (“Banks”) offering financial products and services as well as certain partner brokerage firms (collectively with Banks, the “Third Party Partners”) offering certain brokerage products and services. Crescent is a financial technology company and not a bank, financial institution or financial advisory service. Crescent, and the Services, are not and should not be viewed as legal, financial, investment, or tax advice. Information obtained through the Platform or the Services may not be appropriate for your unique financial situation. Before making any financial decisions, you should consider obtaining advice from your accountant and financial advisor.
2. Eligibility and Participation in the Services
The Platform is intended for visitors located within the United States. We make no representation that the Services are appropriate or available for use outside of the United States. Access to the Platform from countries or territories or by individuals where such access is illegal is prohibited. We reserve the right to reject participation in the Services for any reason, in our sole and absolute discretion.
To help the government fight the funding of terrorism and money laundering activities, federal law requires us to obtain, verify, and record information that identifies each person that participates in the Services. Accordingly, in order to participate in the Services, your identity must first be verified and you will be required to provide us with acceptable forms of identification. What this means for you: when you open an account, we will ask for some information about yourself and your company, such as your name, address, date of birth, social security number, email address, phone number, company address, company EIN, or other contact information. We may also ask for a copy of your driver’s license or other identifying documents. In certain circumstances, we may also ask for information pertaining to the sources of your funds. You hereby grant Crescent an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to use the personal information you provide when opening an account and to provide that same information our Third Party Partners as necessary to provide the Services. We also may obtain identifying information from third parties in order to verify your identity, or to prevent fraud. You hereby authorize us, or a third-party service provider that we designate, to take any measures that we consider necessary to confirm the identifying information you provide, verify and authenticate your identifying information, and take any action we deem necessary based on the results. You acknowledge that this process may result in a delay in registering a user account on the Platform, and that you may not be authorized to access or use the Platform until your registration has been successfully completed. Moreover, we will monitor your use of the Services, and review your identifying information on an ongoing basis, as may be required by law or pursuant to our internal policies and procedures. At any time, we may require you to provide us with additional identifying information as a condition to your continued access to and use of the Services. During such time, your access to and use of the Services and the Platform may be temporarily restricted. You represent and warrant that all information provided to us in connection with the Services or otherwise is true, accurate, and not misleading in any respect. If any such information changes, it is your obligation to update such information as soon as possible.
When you register for an account on the Platform, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at support@crescent.app.
Your participation in the Services is not deemed to be immediately effective, and we have no responsibility to you unless and until you have received written confirmation (which may be electronic) from us that your participation in the Services has been approved. We are not obligated to accept your request to participate in the Services and we reserve the right to exclude any person from participating in the Services in our sole and absolute discretion.
For ACH requests, there may be a per transaction maximum amount that can change. Please contact us at support@crescent.app for up-to-date details.
3. Pricing and Fees; Authorization; Delinquent Accounts
Certain features of the Services may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable unless otherwise specifically provided for in these Terms.
Crescent reserves the right to determine pricing and fees for its Platform, Services and its features. Crescent will make reasonable efforts to keep pricing and fee-related information published on the Platform up to date. We encourage you to check our pricing page periodically for current pricing and fee-related information. Crescent may change the pricing and fees for any Services, including additional fees or charges, if Crescent gives you advance notice of changes before they apply. Crescent, at its sole discretion, may make promotional offers with different features and different pricing to any of other Crescent user. These promotional offers, unless made to you, will not apply to your offer or these Terms.
If applicable, you authorize Crescent to charge all sums or collect all fees for the transactions that you make on the Platform as described in these Terms or published by Crescent, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then Crescent may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Crescent may suspend or terminate access to the Platform, or any of the Services, including fee-based portions of the Services, for any account for which any amount is due but unpaid. In addition to the amount due for the Services, a delinquent account will be charged with fees and/or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees. If your access to the Platform has been suspended or terminated for any reason, access to your funds is likely to be delayed.
4. Third Party Tools
Crescent may provide tools through the Platform that enable you to export information to third-party services or allow you to interact with our third party service and product providers. By using one of these tools, you hereby authorize Crescent to transfer that information to the applicable third-party service. Third-party services are not under Crescent’s control, and, to the fullest extent permitted by law, Crescent is not responsible for any third-party service’s use of your exported information. The Platform may also contain links to third-party websites. Linked websites are not under Crescent’s control, and Crescent is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any information with such third-party services. Once sharing occurs, Crescent will have no control over the information that has been shared.
The Platform may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Platform is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
5. Relationship with Prime Trust
To participate in the Services, you must first open an account operated by Prime Trust (the “Custodial Account”). Prime Trust will require you to enter into its New Account Agreement and acknowledge that you have reviewed its privacy policy, among other things. Prime Trust is NOT a federally insured depository institution and is NOT affiliated with Crescent. Crescent and its affiliates take no responsibility for actions taken by Prime Trust. Accordingly, you should research Prime Trust before entering into its agreements or opening a Custodial Account.
You maintain a direct customer relationship with Prime Trust regarding the Custodial Account. Prime Trust is responsible for establishing and maintaining balances in the Custodial Account, processing and settling all transfers and transactions through, to, and from the Custodial Account, and exercising principal oversight and control over the Custodial Account. Prime Trust plays a key role in certain know-your-customer and/or know-your-business screening requirements and will require you to enter into certain agreements to establish a Custodial Account.
Crescent’s role as your authorized agent pursuant to these Terms grants Crescent limited access to information regarding your Custodial Account such that Crescent can send instructions on your behalf to Prime Trust pertaining to transfers to and from your Custodial Account in connection with certain of your activities on the Platform.
You hereby authorize Crescent and its agents, in relation to your Custodial Account and your utilization of the Services, to, among other things: (i) access and view the balances and all other transaction information (including transaction history) relating to your Custodial Account for the purpose of reconciliation and computation of amounts due to or from you arising from certain transactions that you initiate using the Platform; (ii) instruct Prime Trust to affect a transfer of funds to or from your Custodial Account; (iii) instruct Prime Trust to affect credits and debits of your Custodial Account balance in relation to certain transactions which have been executed on the Platform or for fees and charges arising from transactions conducted through the Platform; (iv) use any of your data or information obtained through Prime Trust for purposes of effecting certain transactions using the Platform or otherwise; and (v) share any of your data or information with Prime Trust for the purpose of operating and maintaining your Custodial Account.
In addition, you hereby authorize Crescent and its agents to freeze further credits or debits to or from your Custodial Account due to your violation of these Terms or applicable law, or if we suspect, in our sole and absolute discretion, fraud, money laundering, terrorism financing, or if there are violations of the anti-money laundering or countering the financing of terrorism policies and procedures set forth herein.
6. Electronic Communications
Crescent is not an investment adviser; however, we have partnered with Helium Advisors LLC (“Helium”), an SEC-registered investment adviser, to bring you certain investing features. All investment advisory services or products offered through the Platform are provided by Helium. By participating in the Services, you acknowledge that Crescent is not affiliated with Helium but does receive compensation as a percentage of assets managed by Helium for promoting Helium’s investment advisory services. For more information about how our relationship with Helium may impact our ability to provide you with unbiased and objective information about the services of Helium, see “Disclaimers; No Warranties” in Section 13 of these Terms.
Crescent’s role as your authorized agent pursuant to these Terms grants Crescent certain access to your account as further described below such that Crescent can send instructions on your behalf to Helium pertaining to transfers to and from your account in connection with your activities on the Platform.
You hereby authorize Crescent and its agents, to, among other things: (i) access and view the balances and all other transaction information (including transaction history) relating to your account for the purpose of reconciliation and computation of amounts due to or from you arising from certain transactions that you initiate using the Platform; (ii) instruct Helium to affect a transfer of funds to or from your account; (iii) instruct Helium to affect credits and debits of your account balance in relation to certain transactions which have been executed on the Platform or for fees and charges arising from transactions conducted through the Platform; (iv) use any of your data or information obtained through Helium for purposes of effecting certain transactions using the Platform or otherwise; and (v) share any of your data or information with Helium for the purpose of operating and maintaining your account.
In addition, you hereby authorize Crescent and its agents to freeze further credits or debits to or from your account due to your violation of these Terms or applicable law, or if we suspect, in our sole and absolute discretion, fraud, money laundering, terrorism financing, or if there are violations of the anti-money laundering or countering the financing of terrorism policies and procedures set forth herein.
7. Crescent Cash - Participation
To participate in the Crescent Cash program (“Crescent Cash”), you must first apply through the Platform to open a Crescent Cash account (“Crescent Cash Account”) which is operated by a third party deposit broker (“Deposit Broker”) whereby Deposit Broker will be appointed as your agent to deploy, manage, and administer your funds with select depository institutions listed here: https://www.crescent.app/banks-we-work-with (“Depository Institutions”) and you must link your United States Bank account (“Linked Bank Account”). Crescent and Deposit Broker are financial technology companies and neither is a financial institution. Your use of the Platform to apply for a Crescent Cash Account does not guarantee that Deposit Broker will open a Crescent Cash Account for you. Deposit Broker will require you to enter into its Master Services Agreement (“MSA”) among other things. Deposit Broker is not affiliated with Crescent. Crescent and its affiliates take no responsibility for the actions of Deposit Broker. Accordingly, you should research Deposit Broker and the Depository Institutions before entering into the MSA, opening a Crescent Cash Account, or participating in Crescent Cash.
You maintain a direct relationship with Deposit Broker regarding your Crescent Cash Account. Deposit Broker is solely responsible for its relationships with the Depository Institutions; Crescent does not have a direct relationship with the Depository Institutions. While Crescent seeks to work with well capitalized third parties, Crescent cannot guarantee the financial conditions of Depository Institutions that receive your funds. Deposit Broker may change the number or composition of the Depository Institutions in its network at any time. In such case, Crescent will endeavor to update the list of Depository Institutions as soon as practical. Because the number of Depository Institutions in Deposit Broker’s network may change, the total amount and type of deposit insurance coverage available is also subject to change.
We advise you to refer to the MSA for detailed information about Deposit Broker’s custody and management of funds, particularly for details on federal deposit insurance, earning of interest, and withdrawals. Deposit Broker’s custody of funds does not necessarily guarantee federal deposit insurance.
Crescent’s role as your authorized agent pursuant to These Terms grants Crescent certain access to your Crescent Cash Account as further described below such that Crescent can send instructions on your behalf to Deposit Broker pertaining to transfers to and from your Crescent Cash Account in connection with your activities on the Platform.
You hereby authorize Crescent and its employees and agents, in relation to your Crescent Cash Account and your utilization of the Services, to, among other things: (i) access and view the balances and all other transaction information (including transaction history) relating to your Crescent Cash Account for the purpose of reconciliation and computation of amounts due to or from you arising from transactions that you initiate using the Platform; (ii) instruct Deposit Broker to affect credits and debits of your Crescent Cash Account balance in relation to transactions which have been executed on the Platform or for fees and charges arising from transactions conducted through the Platform; (iii) use any of your data or information obtained through Deposit Broker for purposes of effecting transactions using the Platform or otherwise; and (iv) share any of your data or information, including your Custodial Account information, with Deposit Broker for the purpose of operating and maintaining your Crescent Cash Account.
8. Reliance on Information Posted
The information presented on or through the App or Site is made available solely for general information purposes. Unless obligated by law, we do not warrant the accuracy, completeness, or usefulness of this general information. Any reliance you place on such general information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the App or Site, or by anyone who may be informed of any of its contents, unless we are otherwise liable under applicable law. The App or Site may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Crescent. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
9. Third-Party Links
The App or Site may link to other websites that are not sites controlled or operated by us (collectively, “Third-Party Sites”). Certain areas of the App or Site may allow you to interact and/or conduct transactions with such Third-Party Sites, and, if applicable, allow you to configure your privacy settings in your Third-Party Site account to permit your activities on the App or Site to be shared with your contacts in your Third-Party Site account and, in certain situations, you may be transferred to a Third-Party Site through a link but it may appear that you are still on the App or Site. In any case, you acknowledge and agree that the Third-Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than Crescent, and you further acknowledge and agree that your use of such Third-Party Sites is governed by the respective Third-Party Site privacy policy and terms and conditions and/or user guides. We provide links to the Third-Party Sites to you as a convenience, and we do not verify, make any representations or take responsibility for such Third-Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites.
YOU AGREE THAT WE WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY.
Any reference on the App or Site to any product, service, publication, institution, organization of any third-party entity or individual does not constitute or imply our endorsement or recommendation.
10. Federal and State Laws
The App and Site are operated from the United States and are intended for U.S. residents only. The App and Site are not approved for distribution outside of the U.S. and non-U.S. residents should not rely or act upon the information contained within. When using the App or Site, on the Site, or when using any content provided by us, you must obey all applicable U.S. federal, state and local laws.
11. Minimum Age
We do not allow persons under the age of eighteen (18) to use the App or Site. By using the App or Site, you represent and warrant that you are eighteen (18) years of age or over.
12. Disclaimer and Warranties
Your use of the App and Site are at your own risk. The Materials have not been verified or authenticated in whole or in part by us, and they may include inaccuracies or typographical or other errors. We do not warrant the accuracy or timeliness of the Materials contained on the App or Site. We have no liability for any errors or omissions in the Materials, whether provided by us, our licensors or suppliers or other users.
TO THE FULLEST EXTENT PROVIDED BY LAW AND EXCEPT AS OTHERWISE PROVIDED HEREIN OR ON THE APP OR SITE, THE INFORMATION AND SERVICES OFFERED ON OR THROUGH THE APP OR SITE AND ANY REFERENCED THIRD-PARTY SITE ARE PROVIDED
“AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ANY THIRD-PARTY GOODS OR SERVICES PROVIDED ARE SUPPLIED AS A CONVENIENCE TO YOU AND DO NOT CONSTITUTE SPONSORSHIP, AFFILIATION, PARTNERSHIP, OR ENDORSEMENT. TO THE FULLEST EXTENT ALLOWED BY LAW, WE DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
TO THE FULLEST EXTENT ALLOWED BY LAW, WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE APP OR SITE, CONTENT, OR OTHER POSTED MATERIALS ON THE APP OR SITE IN TERMS OF ITS CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE.
BY PROVIDING THE SERVICES ON THE APP AND SITE, WE DO NOT IN ANY WAY PROMISE THAT THE SERVICES WILL REMAIN AVAILABLE TO YOU. WE ARE ENTITLED TO TERMINATE ALL OR PART OF ANY OF THE APP OR SITE AT ANY TIME, IN OUR SOLE DISCRETION WITHOUT NOTICE TO YOU.
13. Limitation of Liability
WE CANNOT GUARANTEE THE APP OR SITE WILL BE AVAILABLE 100% OF THE TIME BECAUSE PUBLIC NETWORKS, SUCH AS THE INTERNET, OCCASIONALLY EXPERIENCE DISRUPTIONS. ALTHOUGH WE STRIVE TO PROVIDE THE MOST RELIABLE APP AND SITE REASONABLY POSSIBLE, INTERRUPTIONS AND DELAYS IN ACCESSING THE APP AND SITE ARE UNAVOIDABLE AND WE DISCLAIM ANY LIABILITY FOR DAMAGES RESULTING FROM SUCH PROBLEMS.
NOTWITHSTANDING THE FOREGOING, THE LIABILITY OF CRESCENT AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES AND THIRD-PARTY SERVICE PROVIDERS WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF YOUR USE OF THE APP OR SITE, THE MATERIALS, THE CONTENT OR SERVICES OBTAINED THROUGH THE APP OR SITE, WHETHER BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED, IN THE AGGREGATE, FIFTY DOLLARS ($50).
IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THE APP OR SITE, OR ON ANY OTHER HYPERLINKED WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA OR OTHERWISE, EVEN IF WE ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
14. Indemnification
You agree to indemnify, defend and hold harmless us and our affiliates, employees, agents, representatives and third-party service providers, for any and all claims, demands, actions, liability, fines, penalties and expenses that may arise from any of your acts through the use of the App and Site. Such acts may include but are not limited to: providing content to or communicating with us or our Affiliates, unauthorized use of material obtained through the App or Site, engaging in a prohibited activity, or any other action that breaches these Terms.
15. Copyright Compliants
We respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent with the following information.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- Description of the copyrighted work that you claim has been infringed;
- The location on the App and/or Site of the material that you claim is infringing;
- Your address, telephone number and e-mail address;
- A statement that your claim of infringement is based on a good faith belief; and
- A statement made under penalty of perjury that the information you have provided is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our agent for notice of claims of copyright infringement on the App and Site can be reached as follows:
Crescent Financial Inc.
Attn: Crescent DMCAAgent
220 S 17th Street, Suite 200
Lincoln, NE, 68508
support@crescent.app
16. Injunctive Relief
You acknowledge that we may be irreparably damaged if these Terms are 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 these Terms by you, we 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 these Terms. 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 state or Federal courts located in the state of Nebraska. 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.
17. Mandatory Arbitration and Class Action and Jury Trial Waiver
Most concerns can be resolved quickly and to your satisfaction by contacting us as set forth in the “Questions” section below.
In the event that we are not able to resolve a dispute, and with the exception of the claims for injunctive relief by us as described above and to the extent allowed by law, you hereby agree that either you or we may require any dispute, claim, or cause of action (“Claim”) between you and us or any third parties arising out of use of the App, Site, the Services, and any other actions with us (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) to be arbitrated on an individual (non-class) basis. However, both parties retain the right to seek relief in a small claims court (or a state
court equivalent) for a Claim within the scope of its jurisdiction so long as the small claims action does not seek to certify a class, combine the claims of multiple persons, recover damages in excess of the limit for a small claim under applicable state law or is not transferred, removed, or appealed from small claims court to any different court. Additionally, if you are a California resident, you retain the right to obtain public injunctive relief from any court with proper jurisdiction.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. ADDITIONALLY, ANY ARBITRATION OF A CLAIM WILL BE ON AN INDIVIDUAL BASIS, AND, THEREFORE, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION LAWSUIT. AS PART OF THIS WAIVER, YOU AGREE THAT YOU WAIVE THE RIGHT TO ACT AS A PRIVATE ATTORNEY GENERAL IN AN ARBITRATION; THAT EXCEPT AS OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT, CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION.
You and we agree that your use of the Services involves interstate commerce, and that this arbitration agreement shall be interpreted and enforced in accordance with the Federal Arbitration Act (FAA) set forth in Title 9 of the U.S. Code to the fullest extent possible, notwithstanding any state law to the contrary, regardless of the origin or nature of the Claims at issue. The arbitrator must follow, to the extent applicable: (1) the substantive law of the state in which we entered into the transaction giving rise to this arbitration agreement; (2) the applicable statutes of limitations; and (3) claims of privilege recognized at law. The arbitrator will not be bound by federal, state or local rules of procedure and evidence or by state or local laws concerning arbitration proceedings.
If either you or we elect to arbitrate a Claim, the dispute shall be resolved by binding arbitration administered under the applicable rules of the American Arbitration Association (“AAA”). Either you or we may elect to resolve a particular Claim through arbitration, even if the other party has already initiated litigation in court related to the Claim, by: (a) making written demand for arbitration upon the other party, (b) initiating arbitration against the other party, or (c) filing a motion to compel arbitration in court.
If this is a consumer-purpose transaction, the applicable rules will be the AAA’s Consumer Arbitration Rules. The applicable AAA rules and other information about arbitrating a claim under AAA, including how to submit a dispute to arbitration, may be obtained by visiting its website at https://www.adr.org/ or by calling 1-800-778-7879. If AAA will not serve as the administrator of the arbitration, and you and we cannot then agree upon a substitute arbitrator, you and we shall request that a court with proper jurisdiction appoint an arbitrator. However, we will abide by the applicable AAA rules regardless of the
forum. Arbitration shall be conducted in the county and state where you accepted these Terms, you reside, or another reasonably convenient place to you as determined by the arbitrator, unless applicable laws require another location. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Except as provided in applicable statutes, the arbitrator’s award is not subject to review by the court and it cannot be appealed. The parties will have the option to request and receive a statement of reasons for the arbitration award.
If you elect to file the arbitration, and this is a consumer-purpose transaction, you will pay the filing fee to the extent required by AAA’s Consumer Arbitration Rules but not to exceed the cost of filing a lawsuit. Any amount above what it would cost you to file a lawsuit, we will pay. All other arbitration fees and expenses shall be allocated to us according to AAA rules. Except for the arbitration fees and expenses, each party shall pay its own costs and fees incurred (including attorneys’ fees), unless the arbitrator allocates them differently in accordance with applicable law. This paragraph applies only if this is a consumer-purpose transaction.
If any part of this arbitration provision is invalid, all other parts of it remain valid. However, if the class action limitation is invalid, then this arbitration provision is invalid in its entirety, provided that the remaining Terms shall remain in full force and effect. This arbitration provision will survive the termination of your use of the App, the Site, the Services, and any other actions with us.
You may reject this arbitration provision within thirty (30) days of accepting the Terms by emailing us at support@crescent.app and including in the subject line “Rejection of Arbitration Provision.
18. Miscellaneous Provisions
Severability. If any term or provision in these Terms is found to be void, against public policy, or unenforceable by a court of competent jurisdiction and such finding or order becomes final with all appeals exhausted, then the offending provision shall be deemed modified to the extent necessary to make it valid and enforceable. If the offending provision cannot be so modified, then the same shall be deemed stricken from these Terms in its entirety and the remainder of these Terms shall survive with the said offending provision eliminated.
Governing Law and Venue. These Terms shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflicts of law rules, and the United States of America. Without waiving the foregoing arbitration clause, you agree that any dispute arising from or relating to the subject matter of these Terms (including but not limited to if you opt out of the mandatory arbitration provision) shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of Lincoln, Nebraska, except where the jurisdiction and venue are mandated by applicable Assignment. We may freely assign our obligations and rights under these Terms, including all Personal Information in our possession which we have collected during your use of the App and/or Site.
Headings. Condition and section headings are for convenience of reference only and shall not affect the interpretation of these Terms.
Typographical Errors. Information on the App and Site may contain technical inaccuracies or typographical errors. We attempt to make the App’s and Site’s postings as accurate as possible, but we do not warrant the content of the App and Site as accurate, complete, reliable, current, or error-free.
19. Questions
If you have any questions or comments about these Terms, the App, or the Site, please contact us by email at support@crescent.app.
