Terms and Conditions
Last Modified: April 22, 2022
These terms and conditions (“Terms and Conditions”) set forth the agreement between you and nZero Labs, Inc. and its subsidiaries or affiliates (collectively “nZero Labs”, "On Deck", “we” or “us”) and govern your participation in programs offered by On Deck as described on its website at https://www.beondeck.com/ (each, an "On Deck Program") and your use of the other products and services we offer through our websites and applications that link to these Terms and Conditions (collectively, the “On Deck Platform”). Our provision to you of access to and use of the On Deck Platform, participation in an On Deck Program, and any other services provided by On Deck applications that link to these Terms and Conditions are together referred to herein as the "Services".
By clicking "I Accept" or by using our Services, you agree to these Terms and Conditions, including the mandatory arbitration provision and class action waiver in Section 13. If you do not agree to these Terms and Conditions, please do not use our Services.
We may supply different or additional terms in relation to some of our Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and Conditions and the additional terms, the additional terms will control for that conflict.
1. ACCEPTANCE AND ELIGIBILITY
1.1 Acceptance. You must be at least 13 years of age to use our Services. By accepting these Terms and Conditions you represent and warrant that you: (a) are at least 18 years of age (or the age of legal majority where you live) or you are a parent or guardian of a user at least 13 years of age and under the age of 18 (or the age of legal majority) and agree to be fully responsible for the acts or omissions of such user in relation to our Services; (b) have read and understand and accept these Terms and Conditions; and, (c) agree that these Terms and Conditions constitute a binding contract governing your rights with respect to the Services and the relationship between you and On Deck.
1.2 Changes. We consistently evaluate our business for improvements, so these Terms and Conditions may need to change. We reserve the right to change these Terms and Conditions at any time. If we do, we will bring such changes to your attention, such as by updating the date at the top of these Terms and Conditions, by placing a notice on beondeck.com, or by sending notice to the primary email address specified in your account. Please review all updates, as once the Terms and Conditions have been updated your continued use of the Services will constitute acceptance of the updated terms. If you don’t agree with the amended Terms and Conditions, you are free to reject them; unfortunately, that means you must stop using the Services.
1.3 Assessing Candidate Eligibility. On Deck reserves the right in its sole discretion to accept or decline to accept any applicant or guest into an On Deck Program after conducting an evaluation by means such as applications and interviews.
1.4 Removal. On Deck reserves the right in its sole discretion to remove anyone from an On Deck Program, the On Deck Platform, or any part thereof (including virtual spaces, in-person events, and accommodations) at any time, and for any reason, including, but not limited to, lack of payment or other violation of these Terms and Conditions or if we deem it necessary for the comfort, convenience, or safety of others. If we remove you from the On Deck Platform, an On Deck Program in progress, or an event, activity, workspace, or accommodations, you will not be entitled to any refund, payment, compensation or credit for unused or missed services or costs that result from the termination of participation.
1.5 Code of Conduct. On Deck users (“Participants”) are expected to abide by and act in accordance with On Deck’s Code of Conduct (the "Code of Conduct"). If you are a Participant, the Code of Conduct is incorporated into these Terms and Conditions and by agreeing to these Terms and Conditions, or using the Platform, you are also agreeing to the Code of Conduct.
2. THE SERVICES
2.1 Participants. The Services may involve interacting with other Participants. You assume all risks when using the Services, including but not limited to all risks associated with any online or offline interactions with other Participants. There is no substitute for exercising caution when communicating or interacting with any Participant, particularly when meeting other Participants in person. You acknowledge that On Deck does not routinely screen its Participants, verify information provided by its Participants, or conduct criminal background checks on its Participants (although On Deck reserves the rights to do so). In addition, you are solely responsible for protecting your intellectual property rights, including ensuring that you have sufficient confidentiality agreements in place with another Participant before disclosing any confidential information. You agree to take all necessary precautions when communicating or interacting with any other Participants, either online or in-person.
2.2 On Deck Talent Hub and On Deck Recruit. On Deck Recruit is a white glove recruiting service that provides advice to Participants regarding hiring candidates for positions within their company and helps Participants find candidates for such positions from within On Deck's network, On Deck Talent Hub is a job search platform for candidates and employers that allows you to post job openings, browse candidates, and communicate with candidates. (On Deck Talent Hub and On Deck Recruit are referred to together as “On Deck Hiring Services”.)
The specific benefits of On Deck Hiring Services will be set forth in the program description detailed on the site or shared with you when you subscribe, subject to the limitations set forth therein and in these Terms and Conditions. Subscription fees and placement fees (if applicable) for On Deck Hiring Services are payable in accordance with Section 3 of these Terms and Conditions and any additional terms presented to you at the time of purchase.
You will use On Deck Hiring Services solely for your personal use to find jobs or your company’s internal use to find candidates to consider for positions as employees and consultants of your company. You agree not to disclose any Participant candidate's interest in new employment with their current employer or other third parties not assisting you in the hiring process.
Participants, and not On Deck, are solely responsible for their use of On Deck Recruit including, without limitation, any interactions with, or decisions regarding, any candidates located through On Deck Recruit and any terms governing any independent contractor or employment relationship entered into with such candidates. YOU UNDERSTAND THAT ON DECK HAS NOT VERIFIED THE INFORMATION PROVIDED BY CANDIDATES (FOR EXAMPLE, INFORMATION PROVIDED BY CANDIDATES DURING THEIR PARTICIPATION IN ANY ON DECK PROGRAM OR SUBMITTED TO THE ON DECK PLATFORM), OR THEIR ELIGIBILITY FOR EMPLOYMENT, AND DOES NOT ENDORSE OR RECOMMEND ANY CANDIDATES, INCLUDING THOSE THAT ARE IDENTIFIED BY ON DECK. ON DECK DISCLAIMS ALL LIABILITY RELATED TO YOUR USE OF ON DECK RECRUIT AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING ON DECK RECRUIT, INCLUDING WITHOUT LIMITATION AS TO THE SUITABILITY OR QUALIFICATIONS OF ANY CANDIDATE OR THE OUTCOME OF ANY USE OF ON DECK RECRUIT. ALL PARTICIPANTS THAT USE ON DECK RECRUIT, EITHER TO IDENTIFY POTENTIAL CANDIDATES OR AS PART OF THE CANDIDATE POOL, ARE RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LAWS (SUCH AS EMPLOYMENT LAWS) AND THEIR CONTRACTUAL OBLIGATIONS TO THIRD PARTIES (SUCH AS THOSE OWED TO A CURRENT EMPLOYER).
2.3 Other Providers. On Deck may organize and negotiate perks for its Participants, including but not limited to credits, dedicated Slack channels, workshops, and office hours, by forming partnerships with other companies (“Other Providers”). When dealing with Other Providers, On Deck acts only as an arranger, and all services or products provided by Other Providers or their personnel and employees are not subject to On Deck's supervision or control and are not endorsed, vetted, or recommended by On Deck. The Other Providers are solely responsible and liable for providing their respective products and services, unless otherwise specified, and your interactions, communications, or other dealings with such Other Providers, and any associated terms, conditions, warranties or representations, are solely between you and such Other Provider. On Deck is not their agent and is not responsible or liable for their actions or inaction or for any loss or damage of any sort you may incur as the result of any products or services of, or your dealings with, such Other Providers. On Deck makes no warranty, either express or implied, regarding the suitability, safety, insurance or other aspects of any products, services, or facilities provided by any Other Provider. We encourage you to consult the policies and terms of an Other Provider to determine your rights with respect to their products or services.
2.4 On Deck Career Center. On Deck Career Center provides career coaching and executive coaching services that helps professionals navigate job transitions and career-building in the startup world. If you subscribe to On Deck Career Center, On Deck will connect you with a coach who can provide you with advice, suggestions, resources, and strategies to help you gain clarity and confidence in your career and/or to create an action plan to work toward your personal goals. The specific benefits of On Deck Career Center will be set forth in the program description detailed on the site when you sign up for On Deck Career Center, subject to the limitations set forth therein and in these Terms and Conditions. Fees for On Deck Career Center (including fees for coaching sessions) are payable in accordance with Section 3 of these Terms and Conditions and any additional terms presented to you at the time of purchase. Cancellation fees for coaching sessions are as follows:
- Cancelling or rescheduling with less than 48 hours’ notice may incur a cancellation fee of $50.
- Missing an appointment without providing notice may incur a cancellation fee of the full standard session rate.
- Cancelling or rescheduling the same appointment/session more than once may incur an additional cancellation fee of $50.
Cancellation fees may be waived in the sole discretion of On Deck. A waiver in one instance does not constitute a waiver of our right to charge cancellation fees in other instances.
YOU UNDERSTAND AND AGREE THAT ON DECK CANNOT, AND DOES NOT, GUARANTEE ANY RESULTS FROM YOUR USE OF ON DECK CAREER CENTER. ON DECK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) DISCLAIMS ALL LIABILITY ARISING OUT OF, YOUR USE OF OR INABILITY TO USE ON DECK CAREER CENTER OR THE QUALITY, ACCURACY, RELIABILITY, FEATURES, RESULTS, OR CHARACTERISTICS OF ANY ADVICE OR SERVICES OBTAINED IN CONNECTION WITH ON DECK CAREER CENTER, INCLUDING WITHOUT LIMITATION: (1) ANY ADVICE RECEIVED FROM COACHES OR OTHERWISE THROUGH ON DECK CAREER CENTER; (2) ANY RESULTS OR LACK OF RESULTS YOU ACHIEVE IN CONNECTION WITH ANY COACHING OR OTHER SERVICES OBTAINED THROUGH ON DECK CAREER CENTER; (3) YOUR INTERACTIONS WITH ANY COACHES; OR (4) THE RESULTS OF ANY JOB SEARCH OR ANY NEGOTIATIONS YOU MAY CONDUCT OR THE IMPACT OF ANY ADVICE YOU RECEIVE ON SUCH JOB SEARCH OR NEGOTIATIONS. YOU ACKNOWLEDGE THAT ON DECK CAREER CENTER DOES NOT PROVIDE ANY TAX, LEGAL, OR WEALTH-PLANNING ADVICE IN CONNECTION WITH ANY DISCUSSIONS OF JOB OFFERS AND NEGOTIATIONS.
2.6 Termination. We may terminate or suspend your On Deck account at any time in our sole discretion, including if you violate any On Deck policy or for any other reason.
2.7 Changes to the Services. We may discontinue, suspend, add to, or change features of our Services and may do so without notice to you. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
3. PAYMENTS, CANCELLATIONS, AND REFUNDS
3.1 Fees. Pricing for our Services can be found on our website, https://www.beondeck.com, or will be presented to you at the time of sign up. Prices for Services are subject to change at any time without notice.
3.2 Payment and Billing Information. To the extent the Services or any portion thereof is made available for any fee, you will be required to select a payment method and provide On Deck or its third party payment processor with information regarding such payment method, such as your credit card ("Payment Method"). If you provide information regarding your Payment Method, you authorize us and our third party payment processors to store your Payment Method and other related information, to automatically charge your Payment Method for all amounts due under this Agreement. You represent and warrant to On Deck that such information is accurate and that you are authorized to use the Payment Method. You will promptly update your payment information with any changes needed to make such information accurate (for example, a change in your billing address or credit card expiration date, or a new Payment Method due to cancellation or compromise of the previous Payment Method used). You agree to pay On Deck the applicable fees for the Service you select (as well as any applicable taxes), and in the event that On Deck is unable to charge any amounts due to your Payment Method on file, then you agree to promptly provide a replacement Payment Method or directly pay On Deck for all amounts due upon demand from On Deck. You shall be responsible for all taxes associated with the Services other than U.S. taxes owed by On Deck based on On Deck's net income.
3.3 Recurring Payments. You acknowledge that the Services may require you to enroll in a recurring payment feature before you can participate in the Services. YOU UNDERSTAND AND AGREE TO SUCH RECURRING PAYMENTS AND THAT WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY OR ANNUALLY) TO YOUR PAYMENT METHOD WITHOUT FURTHER AUTHORIZATION FROM YOU AND WITHOUT FURTHER NOTICE (EXCEPT AS REQUIRED BY LAW), UNTIL YOU PROVIDE PRIOR WRITTEN NOTICE, AS SET FORTH BELOW, THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, EMAIL YOUR PROGRAM DIRECTOR. We may submit those charges for payment and you will be responsible for such charges.
3.4 Failure to Pay. If you are not current on your payments for On Deck's Services, On Deck may, in addition to other remedies, restrict your access to our Services until your account becomes current and paid in full. On Deck reserves the right to pursue fees owed using collection methods which may include charging other payment methods on file with On Deck, and/or retaining collection agencies or legal counsel. In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses.
3.5 Custom Payment Plans. On Deck reserves the right to offer custom plans and pricing in addition to what is listed on our website. Custom plans may include billing, payment, and/or renewal terms that are different from our standard terms and will apply where we specifically indicate that such terms will replace any of the terms herein.
3.6 Equity. Unless it's explicitly agreed to by the relevant Participant and On Deck, and stated in writing through a formal document, On Deck: (a) does not hold equity in any company that is associated with a Participant or may be formed as a result of an On Deck Program; and, (b) is not responsible or liable for the actions or inactions of any Participant or any company associated with a Participant or formed as a result of a Participant's use of the Services. To be clear, mere Participation in an On Deck Program without such written agreement does not entitle On Deck to any ownership or equity in companies that Participants form as a result of the On Deck Program.
3.7 Refunds; General. On Deck does not issue refunds or credits except as explicitly stated in these Terms and Conditions or as may be agreed to by On Deck in its sole discretion. Except as otherwise set forth in these Terms and Conditions, Participants on payment plans or who pay one-time fees are entitled to a full no-questions-asked refund when the refund request is made in writing: (a) less than thirty (30) days after the initial payment was made; and also, (b) more than one (1) week prior to the start of the relevant On Deck Program.
3.8 Refunds; Exclusions. On Deck reserves the right to refuse refunds to Participants who abuse our refund policy. Examples of abuse include, but are not limited to, requesting refunds for multiple On Deck Programs or requesting refunds in consecutive months. On Deck has no obligation to provide refunds to users that violate our Terms and Conditions, Code of Conduct, or other On Deck policies, even when refund requests are made within the designated refund period.
3.9 Credits. At any time, and for any reason, we may provide a discount or other consideration ("Credits") to some or all of our Participants. The amount and form of such Credits, and the decision to provide them, are at our sole and absolute discretion. The provision of Credits in one instance does not entitle you to Credits in the future for similar instances, nor does it obligate us to provide Credits in the future, under any circumstance.
4. YOUR CONTENT
4.1 Definition of Your Content. The On Deck Platform enables you to add posts, texts, photos, videos, links, and other files and information about yourself to share with others. All material that you upload, publish or display via the On Deck Platform and/or all material that you create for and through an On Deck Program will be referred to collectively as “Your Content.”
4.2 Ownership. You, or your licensors, as applicable, retain ownership of the intellectual property rights in and to Your Content, subject to the non-exclusive rights granted below.
4.3 License and Permission to Use Your Content.
- On Deck needs a license because you own Your Content. The following license allows us to share Your Content with other Participants through the On Deck Platform, operate our business and provide the Services, and to incorporate it into the Services. This helps us endeavor to maximize value to the On Deck community and make the Services better for all Participants.
- You grant On Deck a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and publicly display Your Content and any name, username or likeness provided in connection with Your Content in all media formats and channels now known or later developed without compensation to you, in connection with operating, promoting, and providing the Services.
- Depending on your account settings, when you post or otherwise share Your Content on or through our Services, you understand that Your Content and any associated information (such as your profile information, username or profile photo) may be visible to others. You may not create, post, store or share any content that violates these Terms and Conditions or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that Your Content, and our use of such content as permitted by these Terms and Conditions, will not infringe upon or violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor Your Content, we may delete or remove Your Content at any time and for any reason with or without notice.
4.4 Feedback. We welcome your feedback and suggestions about how to improve our Services and other comments about our Services. By voluntarily submitting or otherwise communicating in any manner any questions, comments, reviews, suggestions, ideas, or other feedback or information about On Deck or our Services, whether directly to us or to or through any third party platforms (collectively, “Feedback”), you grant us the right, at our discretion, to use and disclose the Feedback for any commercial or non-commercial purpose, in whole or part, freely and without compensation to you. We will not attribute Feedback to you without obtaining your prior permission (although this does not include reviews or other comments you post yourself). You understand that we may treat Feedback as nonconfidential, unless we have expressly agreed in writing to treat it as confidential prior to any disclosure.
5. ON DECK’S INTELLECTUAL PROPERTY
5.1 Ownership; Limited License. We and our licensors own and will continue to own all rights in and to our Services, including all content and materials contained in or provided as part of the Services (other than Your Content) and all related intellectual property rights, as well as all data we generate from the Services. Subject to your compliance with these Terms and Conditions, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
5.2 Recordings. You grant On Deck, and anyone authorized by On Deck, permission (a) to photograph and record you (on film, videotape, audiotape, digital media or otherwise) in connection with your participation in an On Deck Program, (b) to edit and modify any resulting photographs, recordings or other media or materials (collectively the "Photographs and Recordings"), and to use and distribute such Photographs and Recordings, in whole or in part, and your name, likeness, voice, and persona in all media formats and channels now known or later developed without compensation to you, in connection with operating, promoting, and providing the Services. You represent and warrant that you have all rights necessary to grant such permission as set forth herein and that no infringement or violation of any third-party rights will result from such use of your name, likeness, voice or persona. You understand and agree that On Deck will own all rights of any kind in the Photographs and Recordings, and that you will retain no rights therein. You further understand that On Deck will have no obligation to make any use of the Photographs or Recordings and that all rights granted herein are fully sublicensable and assignable.
5.3 Trademarks. On Deck, nZero Labs, and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of On Deck and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
6. PROHIBITED CONDUCT AND CONTENT
You agree that you will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and that you are solely responsible for your conduct while using our Services. You agree that you will not:
- As a Participant, violate On Deck’s Code of Conduct;
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from that user and On Deck;
- Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Sell, resell or commercially use our Services;
- Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, including any content or materials presented to you as part of an On Deck Program, except as expressly permitted by us or our licensors;
- Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
- Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
- Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
- Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
- Develop or use any applications that interact with our Services without our prior written consent;
- Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
- Bypass or ignore instructions contained in our robots.txt file; or
- Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms and Conditions.
You may also post or otherwise share only Your Content that is nonconfidential and that you have all necessary rights to disclose. You agree that you will not create, post, store or share any of Your Content that:
- Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
- Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- Impersonates, or misrepresents your affiliation with, any person or entity;
- Contains any unsolicited promotions, political campaigning, advertising or solicitations;
- Contains any private or personal information of a third party without such third party’s consent;
- Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose On Deck or others to any harm or liability of any type.
Enforcement of this Section 6 is solely at On Deck’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 6 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
7. THIRD-PARTY CONTENT
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. On Deck does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
8. REPEAT INFRINGER POLICY; COPYRIGHT COMPLAINTS
In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify On Deck’s designated agent as follows:
548 Market Street
ATTN: Legal Department
San Francisco, CA 94104 USA
By E-Mail: email@example.com
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to On Deck for certain costs and damages.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless On Deck and our officers, directors, agents, partners and employees (individually and collectively, the “On Deck Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) Your Content or Feedback; (c) your violation of these Terms and Conditions; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services, including your interactions with other Participants. You agree to promptly notify On Deck Parties of any third-party Claims, cooperate with On Deck Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the On Deck Parties will have control of the defense or settlement, at On Deck's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and On Deck or the other On Deck Parties.
Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, On Deck is not responsible of liable for, and does not make any representations, warranties or guarantees regarding, the conduct of, or your interactions with, its Participants and does not represent or warrant that our Services are accurate, complete, reliable, current or error-free.
While On Deck attempts to make your use of our online Services and any content therein safe, we cannot and do not represent or warrant that our online Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality, suitability, and performance of the Services and the conduct of other Participants.
11. LIMITATION OF LIABILITY
To the fullest extent permitted by applicable law, On Deck and the other On Deck Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if On Deck or the other On Deck Parties have been advised of the possibility of such damages.
The total liability of On Deck and the other On Deck Parties for any claim arising out of or relating to these Terms and Conditions or our Services, regardless of the form of the action, is limited to the greater of $50 or the amount paid by you to use our Services in the 12 months preceding the incident that gave rise to the claim.
The limitations set forth in this Section 11 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of On Deck or the other On Deck Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release On Deck and the other On Deck Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to any disputes between you and any third party or any harm resulting from the acts or omissions of third parties.
You further release On Deck and the other On Deck Parties, and anyone acting under their authorization, from any claims that any use of Your Content as authorized herein or the making and use of any Photographs and Recordings violates any of your rights, including without limitation any intellectual property rights or rights of publicity or privacy. You understand that you will not be entitled to any additional compensation for the permission and release granted herein or for the use of any of Your Content or the Photographs and Recordings.
If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
13. DISPUTE RESOLUTION; BINDING ARBITRATION
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with On Deck and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
No Representative Actions. You and On Deck agree that any dispute arising out of or related to these Terms and Conditions or our Services is personal to you and On Deck and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or On Deck seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or On Deck seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and On Deck waive your rights to a jury trial and to have any dispute arising out of or related to these Terms and Conditions or our Services resolved in court. Instead, for any dispute or claim that you have against On Deck or relating in any way to the Services, you agree to first contact On Deck and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to us by email at firstname.lastname@example.org or by certified mail addressed to On Deck, 548 Market Street, PMB 60414, ATTN: Legal Department, San Francisco, CA 94104. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and On Deck cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in New York County, New York or may be conducted telephonically or via video conference, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and On Deck agree that these Terms and Conditions affect interstate commerce and that the enforceability of this Section 13 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and Conditions and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrator, On Deck, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and On Deck agree that for any arbitration you initiate, you will pay the filing fee and On Deck will pay the remaining JAMS fees and costs. For any arbitration initiated by On Deck, On Deck will pay all JAMS fees and costs. You and On Deck agree that the state or federal courts of the State of New York and the United States sitting in New York County, NY have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms and Conditions or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and On Deck will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 13 by emailing us at email@example.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 14.
If any portion of this Section 13 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms and Conditions; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 13 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 13; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 13 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 13 will be enforceable.
14. GOVERNING LAW AND VENUE
Any dispute arising from these Terms and Conditions and your use of the Services will be governed by and construed and enforced in accordance with the laws of New York, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Disputes arising from these Terms and Conditions will specifically not be governed by the United Nations Conventions on Contracts for The International Sale of Goods, if otherwise applicable. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of New York and the United States, respectively, sitting in New York County, NY.
15. TRANSFER AND PROCESSING OF DATA
In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
16. IN-PERSON EVENTS
As part of the Services, we may offer On Deck Participants the opportunity to attend in-person events. In addition to the other provisions of these Terms and Conditions or separate terms that you may agree to with On Deck for an event, the terms in this Section 16 apply to your attendance at On Deck in-person events.
16.1 Registration. You agree to abide by any and all rules governing access to an On Deck event, including payment, guest list, registration, and RSVP limitations and requirements. On Deck may change such requirements at any time.
16.2 Event Spaces. You agree to respect all property and spaces in which an On Deck event is held and refrain from taking any actions that may cause damage to such property or spaces. If you do take actions that cause damage to such property or spaces, you will be liable for all relevant costs and expenses. On Deck is not responsible or liable for anything that happens in the spaces that are not owned or operated by On Deck. However, if brought to our attention, we reserve the right to further investigate and take disciplinary action against a Participant for violations of these Terms and Conditions in non-On Deck spaces.
16.3 Code of Conduct. On Deck strictly enforces the On Deck Code of Conduct at all events. You agree that you will adhere to the Code of Conduct at all in-person events and ensure that your invitees do so as well. On Deck reserves the right to refuse entry to any event and to remove anyone from any event.
16.4 No Smoking or Illegal Substances. Smoking and any illegal substances are prohibited at all events held by On Deck, including e-cigarettes & vapor products. A valid photo ID may be required for admittance to events at which alcohol is served.
17.1 Survival. Notwithstanding any other provisions of these Terms and Conditions, Sections 4, 6, 9, 10, 11, 12, 13, 14, 17 survive any expiration or termination of these terms.
17.2 Severability. If it turns out that any part of these Terms and Conditions are invalid, void, or unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary and shall not affect any other terms or negate the validity of the rest of this agreement, which shall remain in full force and effect.
17.3 Entire Agreement. These terms, any and all language directly linked to within these terms, and any official On Deck policies and waivers (e.g. the Code of Conduct), constitute the entire and exclusive agreement between you and On Deck relating to the subject matter of these Terms and Conditions, and these Terms and Conditions supersede all prior or contemporaneous communications or proposals relating to the subject matter of these Terms and Conditions. The section titles in these Terms and Conditions are for convenience only and have no legal or contractual effect. You agree that communications and transactions between us may be conducted electronically. Except as otherwise provided herein, these Terms and Conditions are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.
17.4 Assignment. You cannot assign, transfer or sublicense these Terms and Conditions, or your acceptance into an On Deck Program, or any Services, without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without consent. You hereby acknowledge and agree that these Terms and Conditions do not create any agency, partnership, joint venture, or employment relationship between you and On Deck, and neither party has any authority to bind the other in any respect.
17.5 Waiver. If we do not enforce any part of these Terms and Conditions, it shall not be deemed a waiver of any further rights hereunder, and does not mean we give up the right to later enforce that part or any other part.