Welcome to Everest Blue Capital! These Terms of Use ("Terms" or "Agreement") are an agreement between you and E Lending LLC d/b/a Everest Blue Capital (hereinafter referred to as "Everest Blue Capital," "we," "us," or "our"). As used in these Terms, the terms "you" and "your" refer to the individuals and companies that use any part of the Everest Blue Capital Platform.
By using this website and other websites and applications owned by Everest Blue Capital or its affiliates (the “Sites”) or any services, loan products, or ancillary products provided by Everest Blue Capital through the Sites (the "Services" or the “Services and Products”) (collectively, the Sites and the Services are referred to in these Terms as the "Everest Blue Capital Platform"), you agree to read, comply with, and be legally bound by: (a) these Terms; (b) Everest Blue Capital’s Privacy Policy (available at: https://www.everestbluecapital.com/PrivacyPolicy.html); and (c) any additional rules and regulations for using the Everest Blue Capital Platform, including, but not limited to, any terms imposed by our third party suppliers and other business partners (the "Rules"). If you do not agree to the Terms, our Privacy Policy or the Rules, you may not use the Sites or any other Everest Blue Capital Services and Products. In the event of any conflict between these Terms, the Rules, the Privacy Policy and other information provided by Everest Blue Capital in any manner, including, but not limited to, through the Everest Blue Capital Platform, communications with you, general advertisements, or otherwise, unless expressly stated to the contrary, these Terms shall control.
Acceptance of Terms
Everest Blue Capital is pleased to provide the information available through the Everest Blue Capital Platform conditioned upon your acceptance, without modification by you, of the terms, conditions, and notices comprising these Terms. These Terms may be updated and modified by us from time to time without notice to you by posting revised Terms on the Sites. Your continued use of the Everest Blue Capital Platform after we publish any change, whether or not we send out a notice about the change, means that you have agreed to the updated Terms. You can review the most current version of these Terms at any time by clicking the "Terms of Use" link from any page on the Sites (except some applications that may not have the link on every page). Please feel free to email us at info@everestbluecapital.com with your thoughts about the Everest Blue Capital Platform or to request more information about Everest Blue Capital or the Everest Blue Capital Platform.
Portions of the Everest Blue Capital Platform are available to the general public and do not require a password or other mechanism to access such publicly available portions of the Everest Blue Capital Platform (the "General Information"). If you only access the Everest Blue Capital Platform for purposes of reviewing and accessing the General Information, these Terms apply to such access and use as applicable.
Other portions of the Everest Blue Capital Platform are only available to individuals who sign up for an account with Everest Blue Capital that enables them to access the password-protected portions of the Everest Blue Capital Platform. If you have created an account, you are deemed a "User".
To utilize certain parts of the Everest Blue Capital Platform, you will be required to create an account through the Everest Blue Capital Platform. If you create any account, you must provide true, accurate, current, and complete information about you as may be prompted by any registration forms. If any information that you provide Everest Blue Capital changes, you must promptly update the relevant registration information.
By opening an account and becoming a User, you certify to Everest Blue Capital that: (a) you are at least 18 years of age; (b) you are legally able to enter into contracts; and (c) you are not a person barred from receiving or using any part of the Everest Blue Capital Platform under federal, state, local or other laws.
You acknowledge and agree that Everest Blue Capital may close, suspend, investigate, monitor or limit your access to your account or any other account associated with the Everest Blue Capital Platform, with or without prior notice to you. You acknowledge, understand, and agree that you do not have an expectation of privacy in activities related to the Everest Blue Capital Platform except as described in Everest Blue Capital’s Privacy Policy.
You are prohibited from using a false identity to create an account, creating an account for or on behalf of any other person, or otherwise misrepresenting your identity on the Everest Blue Capital Platform.
You are responsible for maintaining the confidentiality of your passwords. Everest Blue Capital has the right to assume that anyone accessing the Everest Blue Capital Platform using a valid password associated with your account has the right to do so. You will be solely responsible for the activities of anyone who accesses the Everest Blue Capital Platform using a valid password associated with your account, even if the individual is not in fact authorized by you. If you have reason to believe that your password has been compromised or used without authorization, you must promptly change it using the functionality provided through the Everest Blue Capital Platform. In addition, we encourage you to exit from your account at the end of each session and notify us if you become aware of any unauthorized use of your password or account.
Individual Users who submit payments to Everest Blue Capital are subject to the following additional terms:
Your use of the Everest Blue Capital Platform must comply with these Terms and the applicable Rules. Without limiting anything in these Terms or the applicable Rules, your use of the Everest Blue Capital Platform must comply with the following ("Acceptable Use Restrictions"):
Everest Blue Capital is providing you with the information and functionality on the Everest Blue Capital Platform. Access to the Everest Blue Capital Platform requires access to the Internet. You are responsible for providing all equipment necessary to establish a connection to the Internet, access to the Internet, and any telephone, wireless or other connection and service fees associated with such access. Using the Everest Blue Capital Platform may allow you to receive Content on your mobile phone or other wireless device. The manner in which that Content is delivered to your phone or device may cause you to incur extra data, text messaging or other charges from your wireless carrier. MESSAGE AND DATA RATES MAY APPLY. You, not Everest Blue Capital, will be solely responsible for any carrier charges associated with your use of the Everest Blue Capital Platform. Please contact your carrier if you have questions about how the use of mobile applications and associated services might impact your wireless usage fees.
Everest Blue Capital reserves the right (but not the obligation) to terminate your access to the Everest Blue Capital Platform at any time without notice for any reason whatsoever.
You certify that you will comply with all applicable Laws (e.g., federal, state, Local, and other Laws) when using the Everest Blue Capital Platform and any Content as permitted and in accordance with these Terms. YOU WILL BE RESPONSIBLE FOR ANY COST, EXPENSE, FEE, LIABILITY OF ANY KIND, AND ATTORNEY'S FEES THAT EVEREST BLUE CAPITAL INCURS IF YOU BREAK THE LAW, VIOLATE THE RULES, MISUSE THE EVEREST BLUE CAPITAL PLATFORM, OR BREACH THESE TERMS. IF YOU BREAK THE LAW, VIOLATE THE RULES, MISUSE THE EVEREST BLUE CAPITAL PLATFORM, OR BREACH THESE TERMS, IN ADDITION TO, AND CONSISTENT WITH, OTHER INDEMNIFICATION OBLIGATIONS SET FORTH IN THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT YOU WILL REIMBURSE, INDEMNIFY, AND HOLD HARMLESS EVEREST BLUE CAPITAL AND ITS PAST, PRESENT, AND FUTURE SUBSIDIARIES, PARENTS, AFFILIATED COMPANIES, AND THE EMPLOYEES, DIRECTORS, OFFICERS, INSURERS, AND AGENTS OF ALL AFOREMENTIONED COMPANIES, FROM ANY MONEY DAMAGES, COSTS, EXPENSES, LOSSES, LIABILITIES, AND ATTORNEY'S FEES RESULTING FROM ANY CLAIM, THREAT, DEMAND, SUIT, OR INVESTIGATION BROUGHT BY ANOTHER PERSON, ENTITY,
OR GOVERNMENT. Without waiving any of these rights, Everest Blue Capital may, at its sole discretion, defend itself against any such claim, threat, demand, suit, or investigation without your consent. All of your obligations in this Section survive and continue after any termination of these Terms.
Everest Blue Capital will terminate your access to the Everest Blue Capital Platform if, under appropriate circumstances, you are determined to be a repeat infringer of these Terms or otherwise a nuisance to the Everest Blue Capital Platform. Everest Blue Capital reserves the sole and exclusive right to decide whether a comment or any other submission is inappropriate or otherwise violates these Terms, other than copyright infringement, such as, but not limited to, obscene, defamatory, or just plain obnoxious material. Everest Blue Capital may remove such comments or other submissions and/or terminate your access for uploading such material in violation of these Terms at any time, without prior notice and at its sole discretion.
All right title and interest in and to the Everest Blue Capital Platform, including, but not Limited to, all of the software and code that comprise and operate the Everest Blue Capital Platform and all of the text, photographs, images, illustrations, graphics, audio, video, audio-video clips, URLs, advertising copy, and other materials provided through the Everest Blue Capital Platform (collectively, the "Content") are owned by Everest Blue Capital or by third parties who have licensed their content to us. The Everest Blue Capital Platform are protected under trademark, service mark, trade dress, copyright, patent, trade secret, and other intellectual property Laws. In addition, the entire Content of the Everest Blue Capital Platform is a collective work under United States and international copyright Laws and treaties, and Everest Blue Capital owns the copyright in the selection, coordination, arrangement, and enhancement of the Content of the Everest Blue Capital Platform. You acknowledge and agree that you do not acquire any ownership rights by downloading or viewing any Content on the Everest Blue Capital Platform.
We hereby grant you a limited, revocable License to download and print copies of any portion of the Content of the Everest Blue Capital Platform to which you have properly gained access, but only for your own personal, non-commercial use, and only if you do not remove, modify, or obscure any copyright, trademark, or other proprietary notices from the Content you download or print. The foregoing license is subject to these Terms and does not include the right to use any data mining, robots, or other automatic or manual device, software, program, code, algorithm, or methodology to access, copy, or monitor any portion of the Everest Blue Capital Platform, or in any way reproduce or circumvent the navigational structure or presentation of any part of the Everest Blue Capital Platform, or obtain, or attempt to obtain, any materials or information through any means not purposely made available by to you through the Everest Blue Capital Platform. We reserve the right to take measures to prevent any such activity. This license is revocable at any time without notice and with or without cause. You may not permit others to copy, distribute, perform or display publicly, prepare derivative works based on, broadcast, exploit, or use any part of the Content on the Everest Blue Capital Platform as expressly provided in these Terms. Nothing in these Terms shall be construed as transferring any right, title, or interest in the Everest Blue Capital Platform to you or anyone else, except the limited license to use the Everest Blue Capital Platform on the terms expressly set forth herein.
Notwithstanding the foregoing, and specifically with regard to trademarks, the Everest Blue Capital names and logos (including, but not limited to, those of its affiliates), all product and service names, all graphics, all button icons, and all trademarks, service marks, and logos appearing within the Everest Blue Capital Platform, unless otherwise noted, are trademarks (whether registered or not), service marks, and/or trade dress of Everest Blue Capital and/or those of its affiliates (collectively, the "Everest Blue Capital Marks"). All other trademarks, product names, company names, logos, service marks, and/or trade dress mentioned, displayed, cited, or otherwise indicated within the Everest Blue Capital Platform are the property of their respective owners. You are not authorized to display or use the Everest Blue Capital Marks in any manner without our prior written permission. You are not authorized to display or use trademarks, product names, company names, logos, service marks, and/or trade dress of third parties features within the Everest Blue Capital Platform without the prior written permission of such third parties. The use or misuse of the Everest Blue Capital Marks or other trademarks, product names, company names, logos, service marks, and/or trade dress or any other materials contained therein, except as permitted herein, is expressly prohibited.
The Everest Blue Capital Platform allows certain messaging and sharing of information by Users which may be seen by other Users. Where settings are available, Everest Blue Capital will honor the choices Users make about who can see content or information, including any data, information, or material pertaining to a User or any third party, disclosed, provided, or submitted to Everest Blue Capital in connection with the Everest Blue Capital Platform ("User Data"). Everest Blue Capital is not obligated to publish any information or content on the Everest Blue Capital Platform, including any User Data, and may remove it in Everest Blue Capital's sole discretion, with or without notice.
You shall be solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of User Data you provide through the Everest Blue Capital Platform, including through integration between the Everest Blue Capital Platform and any relevant financial accounts through which you provide bank statements, transaction history or relevant tax information (such as Form 1099s). You warrant that you have the right to possess and use all User Data you upload, submit, or otherwise provide through the Everest Blue Capital Platform, including the right to disclose User Data to Everest Blue Capital and use User Data in connection with the Everest Blue Capital Platform. You further represent and warrant that, prior to uploading, submitting, or otherwise providing any User Data through the Everest Blue Capital Platform or otherwise in connection with these Terms that: (a) you have provided or received all required consents or authorizations with respect to such User Data referencing you or any individual; (b) you will use, store, and transfer all User Data in accordance with all laws applicable to you or, if applicable, your business (which may include, but is not limited to, the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338) (as amended from time to time, the "GLB Act") and any state law equivalents of counterparts thereof and all regulations promulgated under any of them).
You are prohibited from disclosing information that you do not have the right to disclose, including the information of any third party, or that would result in the violation of anyone's intellectual property rights.
As between you and Everest Blue Capital, you own the User Data and any other content and information that you submit or post to the Everest Blue Capital Platform, provided that you grant Everest Blue Capital a worldwide, transferable and sublicensable right to use, copy, modify, distribute, publish, and process, without any further consent, notice and/or compensation to you or others, any User Data and other information and content you provide through the Everest Blue Capital Platform for the purposes of processing any transaction or application initiated by you as part of the mortgage loan origination process you initiated on your own behalf or on behalf of your or your employer’s business.
Everest Blue Capital has no obligation to store, maintain or provide you a copy of any content or information that you or others provide, except to the extent required by applicable law and as noted in our Privacy Policy. In addition, Everest Blue Capital may delete and remove from the Everest Blue Capital Platform any User Data pertaining to any individual upon the request of such individual, to the extent permitted or required by law. The Everest Blue Capital Platform is not intended as a backup or storage system. You agree to maintain backup copies of all of your User Data and other communications submitted thereto.
You acknowledge and agree that the Everest Blue Capital Platform is used or accessed by third parties (for example, credit reporting bureaus, appraisal companies, your bank, or data intermediaries, for processing your transaction) who may receive and retain certain information about you to process or complete a transaction authorized you, including copies of your User Data, even though you have deleted such information from the Everest Blue Capital Platform.
Everest Blue Capital is not responsible for the use or retention by such third parties of such information or User Data, and refers you to each such third parties respective privacy policies for the terms and conditions associated therewith.
To the extent you provide Everest Blue Capital with any ideas, suggestions, or other feedback regarding the Everest Blue Capital Platform ("Feedback"), you hereby agree that Everest Blue Capital shall have the full and unencumbered right to use that Feedback (and any intellectual property rights therein) for any purpose.
For business users, Everest Blue Capital may include your entity name in listings of its current customers to the extent permitted by applicable law, provided that you retain all right, title and interest in and to all of your logos, promotional graphics and related marketing designs, subject only to Everest Blue Capital's worldwide, royalty-free, non exclusive license to use the foregoing and your corporate and/or trade name for purposes of fulfilling its obligations hereunder and marketing Everest Blue Capital's products and services to third parties.
The Everest Blue Capital Platform is an administrative platform only, designed to facilitate the document assembly, communication, and collaboration between Users, with, or without Everest Blue Capital, through the mortgage process. Everest Blue Capital also offers and provides loans directly to Users and others.
Without limiting any provision of these Terms, Everest Blue Capital does not (a) guarantee or ensure any loan amount, transaction fees, offer, or availability of any offer between you and Everest Blue Capital; (b) collect or process payment or transfer of title or security liens on behalf of itself or other Users, or otherwise act as an agent for any party to a loan or real estate transaction in which Everest Blue Capital is not the lender; (c) personally endorse any third party, including, but not limited to, any settlement service provider, borrower, or real estate agent; (d) make any guarantee, express or implied, that any information provided through the Everest Blue Capital Platform by a User is accurate; (e) verify the information that Users supply; (f) guarantee any products or services provided by Users of the Everest Blue Capital Platform; (g) verify or represent that information provided by Users comply with applicable laws; or (h) control how any User uses another User's information.
You acknowledge and agree that Everest Blue Capital is a passive conduit for the collaboration amongst Users and has no responsibility for, or any involvement in, any transactions amongst and between Users and other third parties, except for those transactions for which Everest Blue Capital is the lender. You further acknowledge and agree that any transaction you enter into with another User will be governed by terms agreed upon between you and such other User. You must determine the value and appropriateness of any transaction you enter into with another User. Everest Blue Capital expressly disclaims any and all liability or responsibility for the success and compliance with applicable laws of any transaction you enter into with another User.
As a User, the collection, use, and sharing of your personal information is subject to our Privacy Policy, which may be revised from time to time. Our Privacy Policy is available at https://everest.mymortgage-online.com/PrivacyPolicy.html.
Our Privacy Policy may be updated and modified by us from time to time without notice to you by posting a revised Privacy Policy on the Everest Blue Capital Platform. Your continued use of the Everest Blue Capital Platform after we publish any change, whether or not we send out a notice about the change, means that you have agreed to the updated Privacy Policy.
The Everest Blue Capital Platform may contain links to, integrate with, and/or provide functionalities that permit connection to websites and services that are owned or controlled by third parties. Everest Blue Capital has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party website or service and you expressly agree that Everest Blue Capital does not need to give you notice that you are leaving the Everest Blue Capital Platform or are connecting to a third-party service. In addition, Everest Blue Capital will not, and cannot, censor or edit the content of any third-party website or service. By using the Everest Blue Capital Platform you expressly relieve Everest Blue Capital from any and all liability arising from your use of any third-party website or service. We encourage you to be aware that when you leave the Everest Blue Capital Platform and to read the terms and conditions of each other website that you visit.
Advertising may be presented to you when you use the Everest Blue Capital Platform. You consent to receiving such advertisements. You also acknowledge and agree that Everest Blue Capital is not responsible for any products or services provided by advertisers outside of Everest Blue Capital, its subsidiaries, or its affiliated companies.
The Everest Blue Capital Platform allows you, or could in the future allow you, to share content as expressly authorized by you through various platforms, websites and mobile applications, including, but not limited to, Facebook and Twitter. You understand that Everest Blue Capital does not control what information gets published to those sites or who has access to that information. Those sites are managed by third parties and governed by the terms of use and privacy policies published on those sites.
If you are a copyright owner or an agent thereof and believe that any user submission or other content on the Everest Blue Capital Platform infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Everest Blue Capital with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):
DMCA claims may be sent to the following address:
Everest Blue Capital
[3 Columbus Circle, STE 1700, New York, NY 10019]
DMCA claims can also be sent to Everest Blue Capital's Copyright Agent via email at info@everestbluecapital.com (subject line: "DMCA Takedown Request").
If you believe that your User Data was removed (or to which access was disabled) pursuant to a DMCA Takedown request is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to upload and use such User Data, you may send a written counter-notice containing the following information to Everest Blue Capital using the contact information above. The counter-notice must include the following:
Upon receipt of an appropriate written counter notification from you, as described above, Everest Blue Capital will provide the person who provided the notification under the DMCA with a copy of the counter notification, and inform such person that Everest Blue Capital will replace the removed material or cease disabling access to it in 10 business days. Thereafter, Everest Blue Capital will replace the removed material and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notification, unless Everest Blue Capital's designated agent first receives notice from the person who provided notification under the DMCA that such person has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Everest Blue Capital Platform.
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
YOU AGREE THAT BY USING THE EVEREST BLUE CAPITAL PLATFORM YOU ARE WAIVING THE RIGHT TO A COURT OF LAW OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST EVEREST BLUE CAPITAL ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, YOUR USE OF THE PLATFORM OR SERVICES, OR YOUR DEALINGS WITH EVEREST BLUE CAPITAL SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FEDERAL ARBITRATION ACT. THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"), AS MODIFIED BY THIS SECTION. THE ARBITRATION WILL BE CONDUCTED USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF ANY ARBITRATION ORGANIZATION OR ARBITRATOR THAT YOU AND EVEREST BLUE CAPITAL AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT. FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS YOU MUST ABIDE BY THE FOLLOWING RULES: (A) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (B) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN NEW YORK, NEW YORK. THE ARBITRATOR'S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. IN ANY ARBITRATION PROCEEDING BETWEEN YOU AND EVEREST BLUE CAPITAL IN CONNECTION WITH THESE TERMS, YOUR USE OF THE EVEREST BLUE CAPITAL PLATFORM, OR YOUR DEALINGS WITH EVEREST BLUE CAPITAL, THE PREVAILING PARTY WILL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEY'S FEES AND COSTS IN SUCH ARBITRATION FROM THE OTHER PARTY.
THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, YOUR USE OF THE EVEREST BLUE CAPITAL PLATFORM, OR YOUR DEALINGS WITH EVEREST BLUE CAPITAL MUST BE COMMENCED IN ARBITRATION WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT TWO (2) YEAR PERIOD, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE'S STATUTE OF LIMITATIONS LAWS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.
YOU AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THE ARBITRATION PROVISION (i.e., WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION) SHALL BE DETERMINED BY THE ARBITRATOR. NOTWITHSTANDING ANY PROVISION IN THESE TERMS TO THE CONTRARY, IF THE CLASS-ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS. IF THE ARBITRATION PROVISION IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, THEN THE PROCEEDINGS MUST BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN NEW YORK, NEW YORK, AS APPROPRIATE, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU STILL WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PROCEED IN A CLASS OR COLLECTIVE ACTION, AND REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY AND DAMAGES INCLUDED IN THESE TERMS. THIS ARBITRATION AGREEMENT WILL SURVIVE TERMINATION OF YOUR USE OF THE EVEREST BLUE CAPITAL PLATFORM AND YOUR RELATIONSHIP WITH EVEREST BLUE CAPITAL. THIS ARBITRATION AGREEMENT INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1-16 ("FAA"), AND NOT BY STATE LAW. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG.
IF YOU WISH TO OPT OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF WHEN YOU FIRST USE THE EVEREST BLUE CAPITAL PLATFORM, OR SUBMIT THROUGH THE EVEREST BLUE CAPITAL PLATFORM A REQUEST FOR INFORMATION, YOU MUST SEND US A LETTER STATING, "REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE" AT THE FOLLOWING ADDRESS:
Everest Blue Capital
[3 Columbus Circle STE 1700, New York, NY 10019]
In the event you opt out of the arbitration provision, you agree to litigate exclusively in the state and federal courts located within New York, New York, as appropriate, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. These Terms will be governed by the laws of the State of New York, without giving effect to any principles of conflicts of laws.
WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE EVEREST BLUE CAPITAL PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY SERVICES, CONTENT, OR ANY PRODUCT OR SERVICE AVAILABLE ON OR PROMOTED THROUGH THE EVEREST BLUE CAPITAL PLATFORM. THE EVEREST BLUE CAPITAL PLATFORM, AND ALL OF THE INFORMATION, PRODUCTS, AND SERVICES MADE AVAILABLE THROUGH THE EVEREST BLUE CAPITAL PLATFORM ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND OUR AFFILIATES DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PORTION OF THE EVEREST BLUE CAPITAL PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY SERVICES, INFORMATION, PRODUCTS, AND SERVICES MADE AVAILABLE THROUGH THE EVEREST BLUE CAPITAL PLATFORM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE AND OUR AFFILIATES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (C) RELATING TO THE SECURITY OF THE EVEREST BLUE CAPITAL PLATFORM; (D) THAT THE CONTENT OF THE EVEREST BLUE CAPITAL PLATFORM IS ACCURATE, COMPLETE, CURRENT, OR RELIABLE; AND (E) THAT EVEREST BLUE CAPITAL PLATFORM WILL OPERATE WITHOUT INTERRUPTION OR ERROR.
EVEREST BLUE CAPITAL DOES NOT ENDORSE, AND IS NOT RESPONSIBLE FOR, STATEMENTS, ADVICE, AND OPINIONS MADE BY ANYONE OTHER THAN AUTHORIZED EVEREST BLUE CAPITAL SPOKESPERSONS. WE DO NOT ENDORSE, AND ARE NOT RESPONSIBLE FOR, ANY STATEMENTS, ADVICE, OR OPINIONS CONTAINED IN USER DATA, THIRD PARTY STATEMENTS, OR ANY OTHER CONTENT PROVIDED BY A THIRD PARTY, AND SUCH STATEMENTS, ADVICE, AND OPINIONS DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE, AND OPINIONS OF EVEREST BLUE CAPITAL. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY, OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING ANYTHING ELSE IN THESE TERMS OR THE RULES, OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO THE USE OF THE EVEREST BLUE CAPITAL PLATFORM SHALL BE NO GREATER THAN THE AMOUNT OF $100.
IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE EVEREST BLUE CAPITAL PLATFORM OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE EVEREST BLUE CAPITAL PLATFORM. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATE "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."
IF YOU ARE ACCESSING THE EVEREST BLUE CAPITAL PLATFORM FROM NEW JERSEY, YOU (A) ASSUME ALL RISKS OF LOSSES OR DAMAGES RESULTING FROM YOUR USE OF, OR INABILITY TO USE, THE EVEREST BLUE CAPITAL PLATFORM; (B) IRREVOCABLY WAIVE ALL LOSSES OF INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) THAT MAY OCCUR AS A RESULT OF YOUR USE OF THE EVEREST BLUE CAPITAL PLATFORM; (C) EXPRESSLY AGREE TO RELEASE AND DISCHARGE EVEREST BLUE CAPITAL AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION RESULTING, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE EVEREST BLUE CAPITAL PLATFORM; AND (D) YOU VOLUNTARILY GIVE UP OR WAIVE ANY RIGHT THAT YOU MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST EVEREST BLUE CAPITAL FOR LOSSES OR DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR OTHER LEGAL THEORY, INCLUDING ANY CLAIM BASED ON ALLEGED NEGLIGENCE ON THE PART OF EVEREST BLUE CAPITAL AND ITS AFFILIATES AND ITS AND THEIR AGENTS AND EMPLOYEES. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS "WAIVER AND RELEASE" AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY.
You agree to defend, indemnify, and hold harmless Everest Blue Capital, its past, present and future affiliates, licensors, advertisers, third party suppliers, other business partners, and service providers, and its and their respective officers, managers, directors, employees, contractors, agents, licensors, suppliers, successors, insurers and assigns (collectively, the "Everest Blue Capital Indemnified Parties") from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorney's fees) arising out of or relating to, directly or indirectly, your violation of these Terms or your use of the Everest Blue Capital Platform, including, but not limited to: (a) your negligence or misconduct; (b) any User Data you contribute to or submit through the Everest Blue Capital Platform, including without limitation information associated with your account or transaction; (c) your conduct, including your use of the Everest Blue Capital Platform; (d) your connection to the Everest Blue Capital Platform; (e) any violation or breach of these Terms; (f) your violation or infringement of any intellectual property, privacy, publicity, confidentiality, proprietary or other rights of any person or entity; (g) your use of the Content; or (h) your violation of applicable laws (collectively, the "Claims").
You are solely responsible for defending any such Claims, and for payment of any and all losses, costs, damages or expenses resulting from the foregoing. Everest Blue Capital shall have the right, in its sole discretion, to select its own legal counsel to defend the Everest Blue Capital Indemnified Parties from any Claims (but by doing so shall not excuse your indemnity obligations) and you shall be solely responsible for the payment of all of Everest Blue Capital's reasonable attorneys' fees incurred in connection therewith. You shall notify Everest Blue Capital immediately if you become aware of any actual or potential claims, suits, actions, allegations, or charges that could affect your or Everest Blue Capital's ability to fully perform their respective duties or to exercise its rights under these Terms. You shall not, without the prior written approval of Everest Blue Capital, settle, dispose, or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for any of the Everest Blue Capital Indemnified Parties.
You agree that Everest Blue Capital, in its sole discretion, may suspend or terminate your account (or any part thereof) of use of the Everest Blue Capital Platform and remove and discard any content within the Everest Blue Capital Platform for any reason, including, but not limited to, lack of use or if Everest Blue Capital believes you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Everest Blue Capital Platform may be referred to appropriate law enforcement authorities. Everest Blue Capital may also in its sole discretion and at any time discontinue providing the Everest Blue Capital Platform, or any part thereof, with or without notice. You agree that any termination of your access to the Everest Blue Capital Platform under any provision of these Terms may be effected without prior notice, and acknowledge and agree that Everest Blue Capital may immediately deactivate your account and all related information and files in your account and/or bar any further access to the Everest Blue Capital Platform. Further, you agree that Everest Blue Capital will not be liable to you or any third party for any termination of your access to the Everest Blue Capital Platform.
You may terminate these terms at any time by closing your account and ceasing all access of the Everest Blue Capital Platform.
Upon termination or expiration of these Terms for any reason, all rights to the Everest Blue Capital Platform granted by Everest Blue Capital to you will immediately cease to exist and you shall discontinue all use of the Everest Blue Capital Platform.
You agree that you are solely responsible for your interactions with any other User in connection with your use of the Everest Blue Capital Platform and Everest Blue Capital will have no liability or responsibility with respect thereto. Everest Blue Capital reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User.
You acknowledge that Everest Blue Capital may establish additional Rules, including, but not limited to, general practices and limits concerning your use of the Everest Blue Capital Platform. You are responsible for ensuring any use of the Everest Blue Capital Platform complies with these Terms and any additional Rules applicable to such use.
Everest Blue Capital shall not be liable for any delay in performing, or failure to perform its obligations under these Terms or the performance of any portion of the Everest Blue Capital Platform resulting from any cause beyond its reasonable control, including, without limitation, acts of God, fire, extreme temperatures, high winds, lightning, strikes, energy interruptions, labor disputes, natural disaster, fire, flood, storm, slide, earthquake, epidemics, power failure, inability to obtain equipment, supplies or other facilities, labor disputes, terrorism, criminal activity, governmental demands or requirements, inclement weather, war, declared or undeclared, or the acts of government (each, a "Force Majeure Event"). If affected by a Force Majeure Event, Everest Blue Capital shall be excused from performance to the extent made necessary by such event.
If any part of these Terms are determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.
The section headings and sub-headings contained in the Terms are for convenience only and have no legal or contractual effect.
A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
If you have any questions or concerns about the Everest Blue Capital Platform, any of our Services, these Terms, or the Rules, including to report potential violations of the Terms or Rules by others, please email us at info@everestbluecapital.com.