Capital Works Pro Terms of Use
Last Modified 11/19/2023
Please Read Carefully.
Disclaimer
THE INFORMATION CONTAINED ON THIS WEBSITE IS NOT AND SHOULD NOT BE CONSTRUED AS INVESTMENT ADVICE, AND DOES NOT PURPORT TO BE AND DOES NOT EXPRESS ANY OPINION AS TO THE PRICE AT WHICH THE SECURITIES OF ANY COMPANY MAY TRADE AT ANY TIME. THE INFORMATION AND OPINIONS PROVIDED HEREIN SHOULD NOT BE TAKEN AS SPECIFIC ADVICE ON THE MERITS OF ANY INVESTMENT DECISION. INVESTORS SHOULD MAKE THEIR OWN DECISIONS REGARDING THE PROSPECTS OF ANY COMPANY DISCUSSED HEREIN BASED ON SUCH INVESTORS’ OWN REVIEW OF PUBLICLY AVAILABLE INFORMATION AND SHOULD NOT RELY ON THE INFORMATION CONTAINED HEREIN.
The information contained on this website has been prepared based on publicly available information and proprietary research. The author does not guarantee the accuracy or completeness of the information provided in this document. All statements and expressions herein are the sole opinion of the author and are subject to change without notice.
Any projections, market outlooks or estimates herein are forward looking statements and are based upon certain assumptions and should not be construed to be indicative of the actual events that will occur. Other events that were not taken into account may occur and may significantly affect the returns or performance of the securities discussed herein. Except where otherwise indicated, the information provided herein is based on matters as they exist as of the date of preparation and not as of any future date, and the author undertakes no obligation to correct, update or revise the information in this document or to otherwise provide any additional materials.
The author, the author’s affiliates, and clients of the author’s affiliates may currently have long or short positions in the securities of certain of the companies mentioned herein, or may have such a position in the future (and therefore may profit from fluctuations in the trading price of the securities). to the extent such persons do have such positions, there is no guarantee that such persons will maintain such positions.
Neither the author nor any of its affiliates accepts any liability whatsoever for any direct or consequential loss howsoever arising, directly or indirectly, from any use of the information contained herein. In addition, nothing presented herein shall constitute an offer to sell or the solicitation of any offer to buy any security.
Terms of Use
Please read these Terms of Use (“Terms of Use”) carefully.
By registering for, logging into, visiting and/or otherwise using the Site in any way, you indicate that you understand and intend these Terms of Use to be the legal equivalent of a signed, written contract, and you accept these Terms of Use and agree to be legally bound by them. If you do not agree to these Terms of Use, please do not access this Site or any pages thereof.
These Terms of Use set forth the terms and conditions that apply to your access and use of all Capital Works Pro, LLC products and services (together, the “Services”), and that are made available through our websites including but not limited to www.capitalworkspro.substack.com and www.capitalworkspro.com, as well as through certain downloadable mobile applications (such websites or mobile applications, the “Site”). In the Terms, “Capital Works Pro” or “CWP” or “we” means Capital Works Pro, LLC and its affiliates and subsidiaries (and their predecessors in interest, successors and assigns), and “you” refers to the individual using the Services and, if such individual is using the Services on behalf of an entity or organization, then such entity or organization (and each of your successors and assigns). The Services are intended for U.S. residents only and may include, but are not limited to, CWP Newsletter, CWP Watchlist, CWP Portfolio, CWP blogs, CWP videos, access to third party rewards programs, community forums, bulletin boards, review services, forums in which users may ask questions of third party advisors.
THESE TERMS INCLUDE A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT GOVERN ANY DISPUTES BETWEEN YOU AND US. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION OR CLASS ACTION WAIVER, DO NOT USE THE SERVICES.
1. Reservation of Rights.
We reserve the right, at our discretion, to change, modify, add, or remove portions of these Terms of Use at any time. Your continued use of the Site following reasonable notice of such modifications will be conclusively deemed acceptance of any changes to these Terms of Use. You agree that notice of changes to these Terms of Use posted on the Site constitutes reasonable and sufficient notice. At all times, you are bound by the then-current version of the Terms of Use and of all applicable laws.
2. Use of Content.
The Content (as defined below) of this Site is available for informational purposes only. The posting of Content and access to this Site does not constitute, either explicitly or implicitly, any provision of services or products by Capital Works Pro.
3. Third Party Services.
a) Advice from Third Parties. Some of the Services may involve advice from third parties and third party content. You agree that any such advice and content is provided for informational, educational, or entertainment purposes only, and does not constitute legal, financial, tax planning, medical, or other advice from CWP. You agree that CWP is not liable for any advice provided by third parties. You agree that you are responsible for your own financial research and financial decisions, and that CWP is not responsible or liable for any decisions or actions you take or authorize third parties to take on your behalf based on information you receive as a user of CWP.
b) Sharing Information With Third Parties. To use some of the Services, you may need to provide information such as credit card numbers, bank account numbers, and other sensitive financial information to third parties. By using the Services, you agree that Capital Works Pro or its subcontractors may collect, store, and transfer such information on your behalf, and at your sole request. More information is available in our Privacy Policy. You agree that your decision to make available any sensitive or confidential information to third parties is your sole responsibility and at your sole risk. CWP has no control and makes no representations as to the use or disclosure of information provided to third parties. You agree that these third party services are not under CWP’s control, and that we are not responsible for any third party’s use of your information.
c) Capital Works Pro Does Not Endorse Third Parties. The Services may contain links to third party websites and services. CWP provides such links as a convenience, and does not control or endorse these websites and services. You acknowledge and agree that CWP has not reviewed the content, advertising, products, services, or other materials that appear on such third party websites or services, and is not responsible for the legality, accuracy, or appropriateness of any such content, and shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any such third party websites or services.
4. No Offer or Investment Advice.
Nothing contained herein constitutes an offer, solicitation or recommendation regarding any investment management product or service, or the offer to sell or the solicitation of an offer to buy any security; nor shall any such services be provided, or securities be offered or sold, in any jurisdiction in which such an offer, solicitation, provision or sale would be unlawful. All Site Content is subject to applicable statutes and regulations.
The information provided is for informational purposes only. It does not constitute any form of advice or recommendation to buy or sell any securities or adopt any investment strategy mentioned. It is intended only to provide observations and views of the author(s) at the time of writing, both of which are subject to change at any time without prior notice. The information provided does not have regard to the specific investment objectives, financial situation or particular needs of any specific person who may read it, and investors should determine for themselves whether a particular service or product is suitable for their investment needs or should seek such professional advice for their particular situation. Please refer to offering documents for further information concerning specific products.
Any reference to a particular company or security is not an endorsement by Capital Works Pro of that company or security or a recommendation by Capital Works Pro to purchase or sell such security. It should not be assumed that recommendations made in the future will be profitable or will equal the performance of prior securities’ recommendations
This Site is published in the United States for residents of the United States. Investors outside of the United States are subject to securities and tax regulations within their applicable jurisdictions that are not addressed on this Site. U.S. investors are advised that not all investments or services described on this Site are available for sale in all states. Any potential investor should satisfy themselves that an investment in a Capital Works Pro product is permissible under the rules and regulations of their domicile. The Site is not directed to any person in any jurisdiction where (by reason of that person’s nationality, residence or otherwise) the publication or availability of the Site is prohibited. Persons in respect of whom such prohibitions apply must not access the Site.
5. Prohibited Conduct.
You agree not to:
a) Use the Services for any illegal purpose, or in violation of any local, state, national, or international law;
b) Violate or misappropriate or encourage others to violate or misappropriate the rights of third parties, including intellectual property rights;
c) Post, upload, or distribute any content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, hateful, or otherwise inappropriate;
d) Interfere in any way with security-related features of the Services or the Site;
e) Interfere with the operation or any user’s enjoyment of the Services, including by uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, making unsolicited offers or advertisements to other users, or attempting to collect personal information about users or third parties without their consent;
f) Access, monitor or copy any content or information of the Site using any robot, scripts, spider, scraper, or other automated means or for any purpose or any manual process to collect information or content, or use the Services as part of any machine learning or similar algorithmic activity without Capital Works Pro’s express written permission;
g) Perform any fraudulent activity, including impersonating any person or entity, claiming false affiliations, accessing the accounts of other users without permission, or falsifying your identity or any information about you, including age or date of birth;
h) Copy, reproduce, rent, lease, sell, transfer, assign, sublicense, modify, publish, disclose, distribute, display or prepare derivative works of the Services;
i) Except to the extent permitted by applicable law and except to the extent expressly permitted in these Terms, reverse engineer, disassemble, or decompile the Services, including any corresponding source code, without prior written consent from us; or
j) Sell or otherwise transfer the access granted herein.
4. c) Continued
By using Capital Works Pro, you agree that you will not engage in the following (but not limited to) behaviors on any of our sites:
Threats of any kind
Persistent harassment of any kind
Targeted bullying or group harassment
Stereotyping, racism, sexism
Calls/provocation of/for/to violence
Attacks on us or users
Doxxing
Other harmful behavior determined at Capital Works Pro’s discretion
Remedies include but are not limited to: review, suspension, termination, & ban
Refunds: Refunds will not be issued to accounts found in violation of this policy.
Decision appeal: You may appeal an adverse decision if you believe we are missing context, but are not guaranteed account reinstatement.
In the interest of protecting our users, Capital Works Pro reserves the right to enforce (at our discretion) this policy at any time, for any reason.
6. Forward Looking Statements.
Certain of the statements contained herein may be statements of future expectations, opinions, and other forward-looking statements that are based on Capital Works Pro current views and assumptions and involve known and unknown risks and uncertainties that could cause actual results, performance or events to differ materially from those expressed or implied in such statements. In addition to statements which are forward-looking by reason of context, the words “may, will, should, expects, plans, intends, anticipates, believes, estimates, predicts, potential, or continue” and similar expressions identify forward-looking statements.
The company assumes no obligation to update any forward-looking information contained herein.
7. Conflicts of Interest.
Capital Works Pro and its related persons use online activity as part of its investment research process. As a result, Capital Works Pro and clients as well as its related persons may (but do not necessarily) have financial interests in securities or issuers that we discuss. However, any discussion of securities or issuers by Capital Works Pro is not a recommendation to buy, sell or hold any particular security.
8. Investments
Past performance is no guarantee of future results. All investments have risks and can lose value, including their entire value. Equities may decline in value due to both real and perceived general market, economic, and industry conditions. The value of investments, and the income from them, can go down as well as up, and you may not recover the amount of your original investment. Please consult the offering documents of the product or service for additional information on investment risks. Any tax benefits referred to on this Site are subject to change and their availability and value will depend on your individual circumstance. Such investments are not deposits or obligations of, or guaranteed or endorsed by, any bank, and are not federally insured or guaranteed by the U.S. government, the FDIC, the Federal Reserve Board or any other agency. Some Capital Works Pro products may not be available in or appropriate for a retirement savings plan. Please contact your financial adviser about any investment restrictions associated with your particular plan.
9. No Reliance
Although Capital Works Pro has taken reasonable care to ensure that the information contained within this Site is accurate, no representation or warranty (including liability towards third parties), expressed or implied, is made as to its accuracy, reliability or completeness by Capital Works Pro or their contractual partners. Opinions and any other Content are provided by Capital Works Pro for personal use and informational purposes only and are subject to change without notice. Nothing contained on this Site constitutes investment, legal, tax or other advice and is not to be relied on in making an investment or other decision.
10. No Warranty
The information and opinions contained on this Site, including hyperlinks or references to other sites, are provided ‘as is’ without any warranty of any kind, either expressed or implied, to the fullest extent permissible pursuant to applicable law. You are responsible for evaluating the adequacy, accuracy, reliability, merchantability, non-infringement, completeness of any information or the content available on the Site or fitness for any particular purpose with respect to the Site or any of its Content. Capital Works Pro further assumes no responsibility for, and makes no warranties that, functions contained on this Site will be uninterrupted or error-free, that defects will be corrected, or that this Site or the servers that make it available will be free of viruses or other harmful components.
11. Liability Waiver
Neither Capital Works Pro nor any of their respective affiliates, directors, officers, registered representatives or employees, nor any third party vendor, will be liable or have any liability, whether in contract, tort, strict liability or otherwise, for any direct, indirect, incidental, consequential, punitive or special damages arising out of or in any way connected with your access or use or inability to access or use the Site or reliance on the Content, or any failure of performance, interruption, defect, delay in transmission, computer viruses or other harmful components, or line or system failure associated with the site, regardless of our knowledge thereof.
Where applicable law does not permit the limitation of liability, implied warranties or the exclusion or limitation of certain damages set forth above, the aggregate liability of Capital Works Pro shall not exceed one hundred dollars ($100).
12. Indemnification
You hereby indemnify, defend, and hold Capital Works Pro and any of their respective affiliates, directors, officers, registered representatives or employees, and any third party vendor harmless from and against any and all liabilities, judgments, fines, damages, settlements and costs (including reasonable attorneys’ fees and disbursements) incurred in connection with any claim arising out of any breach by you of these Terms of Use or claims arising from your use of this Site. You will cooperate with us in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
13. Events Beyond Our Control.
You expressly absolve and release Capital Works Pro and all of its officers, directors, employees, registered representatives, shareholders, legal representatives, attorneys, agents, successors and assigns, from any claim of harm resulting from a cause beyond its control including, but not limited to, the failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses or software failures, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, acts of domestic or foreign terrorism or governmental restrictions. Capital Works Pro does not warrant that this Site will be available at any time or that your access to this Site will be uninterrupted, timely or free from viruses or other harmful components. Capital Works Pro reserves the right to cease operating this website or to terminate your access and use of any part of this Site at any time without notice and for any reason.
14. User Representations
You represent and warrant to Capital Works Pro that you will not use this Site for any purpose that is unlawful or prohibited by these Terms of Use, including but not limited to attempting or actually: (a) disrupting, impairing or otherwise interfering with the operation or integrity of the Site or circumventing any Site security system; (b) collecting any information about other users of the Site; (c) systematically, or by any automated means, extracting Content or other information or data contained in the Site to populate databases or other sites; or (d) engaging in any fraudulent or manipulative activity with respect to issuers, securities or markets. Capital Works Pro may terminate your access and use of any part of the Site for such violations.
You further agree not to: (a) make any representations, warranties or guarantees on Capital Works Pro's behalf or with respect to the Site, Content or data; (b) make any false or misleading representations with regard to Capital Works Pro, the Site, Content or data; or (c) participate or engage in any illegal, deceptive, misleading, unethical, or improper practices.
15. Linked Sites
Certain hyperlinks or referenced websites on the Site may for your convenience forward you to third parties’ websites, which generally are recognized by their top level domain name. Any descriptions of, references to, or links to other products, publications or services do not constitute an endorsement, authorization, sponsorship by or affiliation with Capital Works Pro with respect to any linked site or its sponsor, unless expressly stated by Capital Works Pro. Any such information, products or sites have not necessarily been reviewed by Capital Works Pro and are provided or maintained by third parties over whom Capital Works Pro exercises no control. Capital Works Pro expressly disclaims any responsibility for the content, the accuracy of the information, and/or quality of products or services provided by or advertised on these third-party sites to the extent permitted by applicable law. Capital Works Pro reserves the right to terminate any hyperlink or hyperlinking program at any time.
17. Information Submitted By You
Capital Works Pro usage of your personal information is governed by our Privacy Policy, which forms part of these Terms of Use. You should not submit any confidential or proprietary information via the Site. By submitting any information or material to us through the Site, you grant us an unrestricted, irrevocable, worldwide, royalty-free, non-exclusive license to use, reproduce, display, perform, modify, transmit and distribute those materials or information. You also agree that Capital Works Pro is free to use for any purpose any ideas, concepts, know-how or techniques that you submit to us through the Site. Capital Works Pro shall not be subject to any obligations of confidentiality regarding submitted information, except as agreed to by Capital Works Pro or as otherwise specifically agreed or required by law. You agree not to use this Site to upload, display or distribute any materials that are defamatory, threatening, obscene, harassing, or otherwise unlawful, or that incorporate the copyrighted, confidential or proprietary material of any other person or entity. To the extent that you interact with Capital Works Pro on social media platforms, remember that the manner in which social media platforms use, store, and disclose your information is governed by those third-parties.
18. Social Media Disclosure
Capital Works Pro and those that post on Capital Works Pro's behalf could be a client or investor in Capital Works Pro products or services, and this incentivizes them to speak positively about the firm.
You may choose to engage with us on social media, including those that are linked from our Site. Capital Works Pro social media accounts represent the opinions of Capital Works Pro as a firm and certain Capital Works Pro team members maintain social media accounts that represent the opinions of individual analysts or other Capital Works Pro team members. Social media posts are not necessarily the opinion of Capital Works Pro as a whole or all of its team members. You are reminded that Capital Works Pro and its related persons can and do have investments in the clients and securities being discussed, and so are incentivized to speak well of those clients and securities.
You might also see and interact with content posted by third-parties on Capital Works Pro’s social media pages. To the extent that those comments are positive or speak to someone’s experience with the firm or its personnel, you are reminded that the third-party is not receiving compensation for that post but certain third-parties (e.g., a placement agent or distributor for a private fund) might be incentivized to post because they are receiving fees for distribution services. Any third-party that has a business relationship with Capital Works Pro could be incentivized to post positively to maintain that relationship and any related compensation.
Capital Works Pro collects and receives information from you when you interact with our social media pages, accounts or via posts you make on social media platforms. If you choose to make any of your activities or other content available through such platform, including on our pages, or you engage in other activities in connection with the platform, your own friends and followers that you have enabled, and potentially the general public, will be able to view those contributions and activities.
19. Intellectual Property and User Content.
The Services are protected by applicable copyright and other intellectual property laws, and no materials from the Services may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without our express permission. All trademarks and service marks on the Services belong to Capital Works Pro, except third-party trademarks or service marks, which are the property of their respective owners. You represent and warrant that you own or otherwise have the right to use any content you post to the Services. If you believe that your content has been used in a way that constitutes copyright infringement, you may contact:
Phone: 651-829-9194
Email: capitalworkspro@substack.com
You must provide the following information: an electronic or physical signature of the copyright owner or the person authorized to act on behalf of the copyright owner; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located; your address, telephone number, and email address; a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Capital Works Pro has adopted and implements a policy that provides for termination in appropriate circumstances of accounts of users who repeatedly infringe copyright or other intellectual property rights of CWP or others.
You hereby grant to CWP a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, translate, transmit, display, perform and distribute any content, information or material you submit or post in connection with the Services or otherwise make available to CWP or its subcontractors in connection with your use of the Services (“Content”) for the following purposes: (a) with respect to Content which is governed by our Privacy Policy, to provide you with the Services and comply with our obligations under the Terms of Use, any other purposes set forth in the Privacy Policy, (b) with respect to Content which is not governed by our Privacy Policy, including any feedback you may provide us about our Services, for any purpose, and (c) with respect to all Content, to de-identify the Content (if it constitutes personal information). All right, title and interest in and to such de-identified Content created by or on behalf of Capital Works Pro shall be solely and exclusively owned by CWP and CWP may use it for any purpose.
20. Termination
If you violate the Terms, your permission to use the Services will automatically terminate. In addition, Capital Works Pro in its sole discretion may suspend or terminate your user account and/or suspend or terminate some or all of your access to the Services at any time, with or without notice to you. You may terminate your account at any time by contacting Customer Service at capitalworkspro.substack.com. After your account is terminated, information and content previously provided by you will no longer be accessible through your account, but CWP may continue to store such information and content, and it may also be stored by third parties to whom it has been transferred through your use of the Services.
21. Governing Law.
The Terms of Use are governed by the laws of the State of Minnesota and the Federal Arbitration Act (“FAA”), without regard to conflict of law principles. Subject to Section 12, which provides that disputes are to be resolved through binding arbitration or small claims court, to the extent that any lawsuit or court proceeding is permitted hereunder, you and Capital Works Pro agree to submit to the exclusive personal jurisdiction of the state courts and federal courts located within Ramsey County, Minnesota, for the purpose of litigating all such disputes. We make no representation that information and materials included in the Services are appropriate or available for use outside the U.S.
22. Dispute Resolution by Binding Arbitration; Class Action Waiver.
MOST DISPUTES AND CUSTOMER CONCERNS CAN BE RESOLVED QUICKLY AND TO YOUR SATISFACTION BY CONTACTING US AT SUPPORT. HOWEVER, IN THE UNLIKELY EVENT THAT CAPITAL WORKS PRO CANNOT RESOLVE A DISPUTE WITH YOU, THEN, EXCEPT WITH RESPECT TO SMALL COURT CLAIMS AND CLAIMS RELATED TO INTELLECTUAL PROPERTY AS SET FORTH IN THE “ARBITRATION AGREEMENT” SECTION BELOW (“ARBITRATION AGREEMENT”), BOTH YOU AND CAPITAL WORKS PRO AGREE TO SUBMIT THE DISPUTE TO THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS CONSUMER AND/OR COMMERCIAL ARBITRATION RULES OR, BY SEPARATE MUTUAL AGREEMENT, TO ANOTHER ARBITRATION INSTITUTION, IN ACCORDANCE WITH THE “ARBITRATION AGREEMENT” SECTION BELOW.
YOU UNDERSTAND THAT BY ENTERING INTO THIS AGREEMENT, YOU AND CAPITAL WORKS PRO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
ARBITRATION AGREEMENT
A) CLAIMS TO BE RESOLVED BY BINDING ARBITRATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW CAPITAL WORKS PRO AND YOU AGREE TO ARBITRATE ANY AND ALL DISPUTES AND CLAIMS BETWEEN YOU AND CAPITAL WORKS PRO, AND BETWEEN YOU AND OUR FORMER OR PAST EMPLOYEES, DIRECTORS, OFFICERS AND CONTRACTORS, IN ALL CASES ARISING OUT OF OR RELATING TO THE TERMS OR THE SERVICES, EXCEPT THAT: (1) EACH PARTY MAY COMMENCE AN ACTION IN A COURT OF PROPER JURISDICTION FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF AS CONTEMPLATED IN SECTION 12(H) BELOW (INJUNCTIVE RELIEF) PENDING A FINAL DECISION BY THE ARBITRATOR, (2) EITHER PARTY MAY BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT IF THE RULES OF THAT SMALL CLAIMS COURT WILL ALLOW IT. IF EITHER PARTY DOES NOT BRING ITS CLAIM IN SMALL CLAIMS COURT (OR IF YOU OR WE APPEAL A SMALL CLAIMS COURT JUDGMENT TO A COURT OF GENERAL JURISDICTION), THEN THE CLAIMS MUST BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION.
YOU AGREE THAT, BY AGREEING TO THE TERMS, YOU AND CAPITAL WORKS PRO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE TERMS EVIDENCE A TRANSACTION IN INTERSTATE COMMERCE, AND THUS THE FAA GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THE TERMS OR YOUR RELATIONSHIP WITH CAPITAL WORKS PRO FOR ANY REASON.
B) ARBITRATOR. ANY ARBITRATION BETWEEN YOU AND CAPITAL WORKS PRO WILL BE GOVERNED BY THE COMMERCIAL DISPUTE RESOLUTION PROCEDURES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (COLLECTIVELY, “AAA RULES”) OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THESE TERMS, AND WILL BE ADMINISTERED BY THE AAA. THE AAA RULES AND FILING FORMS ARE AVAILABLE ONLINE AT WWW.ADR.ORG, BY CALLING THE AAA AT 1-800-778-7879, OR BY CONTACTING CAPITAL WORKS PRO.
ALL ISSUES ARE FOR THE ARBITRATOR TO DECIDE, INCLUDING THE SCOPE AND ENFORCEABILITY OF THIS ARBITRATION PROVISION AS WELL AS OTHER TERMS AND CONDITIONS IN THESE TERMS, AND THE ARBITRATOR SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ANY SUCH DISPUTE RELATING TO THE SCOPE AND ENFORCEABILITY OF THIS ARBITRATION PROVISION OR ANY OTHER TERM OF THESE TERMS INCLUDING, BUT NOT LIMITED TO ANY CLAIM THAT ALL OR ANY PART OF THIS ARBITRATION PROVISION OR THESE TERMS IS VOID OR VOIDABLE. HOWEVER IF PUTATIVE CLASS OR REPRESENTATIVE CLAIMS ARE INITIALLY BROUGHT BY EITHER PARTY IN A COURT OF LAW, AND A MOTION TO COMPEL ARBITRATION IS BROUGHT BY ANY PARTY, THEN THE COURT SHALL DECIDE WHETHER THESE TERMS PERMIT CLASS OR REPRESENTATIVE PROCEEDINGS. FOR THE AVOIDANCE OF DOUBT, THE COURT AND ARBITRATOR SHALL BE BOUND BY THESE TERMS, INCLUDING WITH REGARD TO THE CLASS ACTION WAIVER PROVISION BELOW. IN ANY ARBITRATION, THE ARBITRATOR SHALL FOLLOW THE APPLICABLE LAW. THE ARBITRATOR SHALL NOT HAVE THE POWER TO COMMIT MANIFEST ERRORS OF LAW OR LEGAL REASONING, AND ANY AWARD RENDERED BY THE ARBITRATOR THAT EMPLOYS A MANIFEST ERROR OF LAW OR LEGAL REASONING MAY BE VACATED OR CORRECTED BY A COURT OF COMPETENT JURISDICTION FOR ANY SUCH ERROR.
DURING THE ARBITRATION, THE AMOUNT OF ANY SETTLEMENT OFFER MADE BY CAPITAL WORKS PRO OR YOU SHALL NOT BE DISCLOSED TO THE ARBITRATOR UNTIL AFTER THE ARBITRATOR DETERMINES THE AMOUNT, IF ANY, TO WHICH YOU OR CAPITAL WORKS PRO ARE ENTITLED. IN ARBITRATION, AND TO THE EXTENT OTHERWISE PERMITTED BY LAW, THE PARTIES MAY EXCHANGE “OFFERS OF COMPROMISE” OR STIPULATE TO JUDGMENTS OR AWARDS IN THE SAME WAY THE PARTIES COULD IN COURT. SUCH OFFERS OF COMPROMISE SHALL HAVE THE SAME FORCE AND EFFECT AS THEY WOULD IN A COURT PROCEEDING. THE ARBITRATION PROCEEDINGS SHALL OTHERWISE REMAIN CONFIDENTIAL, EXCEPT FOR PURPOSES OF SEEKING COURT INTERVENTION (IF NECESSARY).
C) NOTICE AND PROCESS. A PARTY WHO INTENDS TO SEEK ARBITRATION MUST FIRST SEND TO THE OTHER, BY CERTIFIED MAIL, A WRITTEN NOTICE OF DISPUTE (“NOTICE”). THE NOTICE TO CAPITAL WORKS PRO SHOULD BE ADDRESSED TO: CAPITAL WORKS PRO, LLC, 600 WESTVIEW DR, UNIT 208, HASTINGS, MN 55033 (“NOTICE ADDRESS”) AND MUST BE SIGNED BY YOU PERSONALLY. NOTICE TO YOU FROM CAPITAL WORKS PRO MAY BE TO YOU DIRECTLY, OR IF YOU ARE REPRESENTED, TO YOUR LEGAL COUNSEL. THE NOTICE MUST (A) DESCRIBE THE NATURE AND BASIS OF THE CLAIM OR DISPUTE; AND (B) SET FORTH THE SPECIFIC RELIEF SOUGHT (“DEMAND”). IF YOU AND CAPITAL WORKS PRO DO NOT REACH AN AGREEMENT TO RESOLVE THE CLAIM WITHIN 30 DAYS AFTER THE NOTICE IS RECEIVED, YOU OR CAPITAL WORKS PRO MAY COMMENCE AN ARBITRATION PROCEEDING PURSUANT TO THE TERMS OF THIS ARBITRATION AGREEMENT.
D) FEES. IN THE EVENT THAT YOU COMMENCE ARBITRATION IN ACCORDANCE WITH THESE TERMS, CAPITAL WORKS PRO WILL, AT YOUR REQUEST, REIMBURSE YOU FOR YOUR PAYMENT OF THE ARBITRATION FILING FEE, UNLESS YOUR CLAIM IS FOR GREATER THAN $10,000, IN WHICH CASE THE PAYMENT OF ANY FEES SHALL BE DECIDED BY THE AAA RULES. ANY REQUEST FOR PAYMENT OF FEES BY CAPITAL WORKS PRO SHOULD BE SUBMITTED BY MAIL TO THE AAA ALONG WITH YOUR DEMAND FOR ARBITRATION AND CAPITAL WORKS PRO WILL MAKE ARRANGEMENTS TO PAY ALL NECESSARY FEES DIRECTLY TO THE AAA. IN THE EVENT THE ARBITRATOR DETERMINES THE CLAIM(S) YOU ASSERT IN THE ARBITRATION TO BE FRIVOLOUS OR BROUGHT FOR AN IMPROPER PURPOSE (AS MEASURED BY THE STANDARDS SET FORTH IN FEDERAL RULE OF CIVIL PROCEDURE 11(B) OR ITS SUCCESSOR RULE), YOU AGREE TO REIMBURSE CAPITAL WORKS PRO FOR ALL FEES ASSOCIATED WITH THE ARBITRATION PAID BY CAPITAL WORKS PRO ON YOUR BEHALF THAT YOU OTHERWISE WOULD BE OBLIGATED TO PAY UNDER THE AAA’S RULES.
IF YOUR CLAIM IS FOR $10,000 OR LESS, YOU MAY CHOOSE WHETHER THE ARBITRATION WILL BE CONDUCTED SOLELY ON THE BASIS OF DOCUMENTS SUBMITTED TO THE ARBITRATOR, THROUGH A NON-APPEARANCE BASED TELEPHONIC HEARING, OR BY AN IN-PERSON HEARING AS ESTABLISHED BY THE AAA RULES. ANY IN-PERSON ARBITRATION HEARINGS WILL TAKE PLACE AT A LOCATION TO BE AGREED UPON IN RAMSEY COUNTY, MINNESOTA. REGARDLESS OF THE MANNER IN WHICH THE ARBITRATION IS CONDUCTED, THE ARBITRATOR SHALL ISSUE A REASONED WRITTEN DECISION SUFFICIENT TO EXPLAIN THE ESSENTIAL FINDINGS AND CONCLUSIONS ON WHICH THE DECISION AND AWARD, IF ANY, ARE BASED. THE ARBITRATOR MAY MAKE RULINGS AND RESOLVE DISPUTES AS TO THE PAYMENT AND REIMBURSEMENT OF FEES OR EXPENSES AT ANY TIME DURING THE PROCEEDING AND UPON REQUEST FROM EITHER PARTY MADE WITHIN 14 DAYS OF THE ARBITRATOR’S RULING ON THE MERITS.
E) CLASS ACTION WAIVER. ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. UNLESS BOTH YOU AND CAPITAL WORKS PRO AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS (EXCEPT AS SET FORTH IN SUBSECTION (F) BELOW), AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT INDIVIDUAL PARTY’S CLAIM. ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. IF THIS SPECIFIC SUBPARAGRAPH (E) IS FOUND TO BE UNENFORCEABLE IN ITS ENTIRETY, THEN THE ENTIRETY OF THIS ARBITRATION PROVISION SHALL BE NULL AND VOID. HOWEVER, IF ONLY A PORTION OF THIS SUBPARAGRAPH (E) IS FOUND TO BE UNENFORCEABLE, THEN THE UNENFORCEABLE PORTION OF THE PROVISION SHALL BE STRICKEN, AND THE REMAINDER OF SUBPARAGRAPH (E) ENFORCED. ANY CLAIMS OR CAUSES OF ACTION SEEKING RELIEF NOT SUBJECT TO INDIVIDUAL ARBITRATION UNDER APPLICABLE LAW SHALL BE STAYED IN A COURT OF COMPETENT JURISDICTION PENDING COMPLETION OF INDIVIDUAL ARBITRATION TO THE MAXIMUM EXTENT PERMITTED BY LAW. NOTHING IN SUBSECTION (E) OR (F) BELOW SHALL PREVENT YOU OR CAPITAL WORKS PRO FROM PARTICIPATING IN A CLASSWIDE SETTLEMENT OF CLAIMS.
YOU AND CAPITAL WORKS PRO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
F) MASS, COLLECTIVE, OR BATCH ARBITRATION. YOU AND CAPITAL WORKS PRO AGREE THAT ADMINISTRATION OF ANY MASS, COLLECTIVE OR BATCH ARBITRATION SHALL BE GOVERNED BY THE TERMS SET FORTH IN THIS SUBSECTION (F). You and Capital Works Pro agree that a “mass, collective, and/or batch arbitration” includes, but is not limited to, instances in which you and others are represented by a law firm or collection of law firms or legal counsel that has filed more than 150 arbitration demands of a substantially similar nature against Capital Works Pro, alleging similar or identical claims or causes of action, within 180 days of the arbitration demand filed on your or others behalf, and the law firm or collective of legal counsel/law firms seeks to simultaneously or collectively administer and/or arbitrate all the arbitration demands together. If more than 150 arbitration demands of a substantially similar nature, alleging the similar or identical claims or causes of action, are filed against Capital Works Pro by the same law firm or collection of legal counsel/law firms within 180 days of one another, each arbitration demand must be filed, administered, arbitrated, and resolved pursuant to this subsection (f).
Specifically, in order to increase the efficiency of resolution for any mass, collective, and/or batch arbitration, in the event 150 or more similar arbitration demands against Capital Works Pro are filed within a 180 day period pursuant to the above, the arbitration provider shall (i) group the arbitration demands into batches of no more than 150 demands per group; and (ii) provide for resolution of each group or batch as a single arbitration with one set of filing and administrative fees and a single arbitrator assigned per group or batch. You and Capital Works Pro agree to cooperate in good faith with the arbitration provider to implement the aforementioned protocol for mass, collective, and/or batch arbitrations with regard to resolution, fees and administration. If subsections (f)(i) or (f)(ii) are not enforced, or the arbitration provider refuses to follow these specific mass, collective, and/or batch arbitration protocols, then each arbitration demand must be filed, administered, arbitrated, and resolved individually, or the parties agree to seek out a different, mutually agreeable and widely-recognized arbitration organization agreeable to follow subsections (f)(i) or (f)(ii). If any other portion of this subparagraph (f) is found to be unenforceable, then the unenforceable portion of the provision shall be stricken, and the remainder of subparagraph (f) and this agreement shall be enforced to the maximum extent permitted by law. Mass, collective, and/or batch arbitrations shall otherwise be subject to all other substantive and procedural terms contained within this agreement.
g) Discovery. Discovery and/or the exchange of non-privileged information relevant to the dispute will be governed by the AAA Rules.
h) Injunctive Relief. Notwithstanding the Arbitration Agreement, you acknowledge that money damages are an inadequate remedy for unauthorized access to or use of the Services or your breach of any provisions in the Terms relating to Capital Works Pro’s intellectual property rights, and any such breach would result in irreparable harm to Capital Works Pro. Accordingly, in the event of any such actual or threatened breach, Capital Works Pro may, in addition to any other rights or remedies available to Capital Works Pro at law or equity, seek specific performance or injunctive relief without the posting of a bond.
i) Modifications. If Capital Works Pro makes any future change to this Arbitration Agreement (other than a change to the Notice Address) after your enrollment in a service or program or your use of the Services, you may reject any such change and require Capital Works Pro to adhere to the language in this arbitration provision as written at the time of your enrollment or purchase if a dispute between us arises, by sending us written notice within 30 days of the change to the Notice Address provided above. You acknowledge and agree that, in the event you reject any future change, your account with Capital Works Pro shall be immediately terminated and you will arbitrate any dispute between us in accordance with the language of this provision as written at the time of your enrollment or purchase.
j) Severability and Enforceability. If an arbitrator or court decides that any part of this Section 12 is invalid or unenforceable, the other parts of this Section 12 shall still apply. If the entirety of this Section 12 is found to be unenforceable, then the parties agree that the exclusive jurisdiction and venue described in Section 11 shall govern any action arising out of or related to the Terms, and that the remainder of the Terms will continue to apply.
13. Modification of the Services.
Capital Works Pro reserves the right to modify or discontinue, temporarily or permanently, some or all of the Services at any time without any notice or further obligation to you. You agree that Capital Works Pro will not be liable to you or to any third party for any modification, suspension, or discontinuance of any of the Services.
14. General.
a) Entire Agreement. These Terms of Use, together with the Privacy Policy, constitute the entire and exclusive understanding and agreement between you and Capital Works Pro regarding your use of and access to the Services, and except as expressly permitted above may only be amended by a written agreement signed by authorized representatives of the parties.
b) No Waiver. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of the Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
c) Paragraph Headers. Use of paragraph headers in the Terms is for convenience only and shall not have any impact on the interpretation of particular provisions.
d) Severability. In the event that any part of the Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
e) Partner Terms. In some instances, Capital Works Pro’s third party partners require that Capital Works Pro users agree to be bound by some additional terms of use that are specific to particular products or services (“Partner Terms”). In the event of any conflict between the Partner Terms and Capital Works Pro’s Terms of Use, Capital Works Pro’s Terms of Use govern and control.
f) Third Party Beneficiaries. Capital Works Pro’s former and past employees, directors, officers and contractors, and each of their successors and assigns, are intended beneficiaries of Section 6 (Indemnification) and the Arbitration Agreement and have the right to enforce such provisions against you. The Terms are not otherwise intended to grant rights to anyone except you and Capital Works Pro or create any third-party beneficiary rights.
15. Notice to California Residents.
Under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the service.
16. Capital Works Pro Customer Service.
To contact us with questions or suggestions about the service please email us at Support.