SECTION 13 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
By accessing or using our website located at https://www.menlovc.com or accessing or using any content, information, services, features or resources available or enabled via such website (collectively, the “Website”), clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Website; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Website. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Website.
Subject to Section 13.9 of this Agreement, Menlo reserves the right to modify this Agreement or its policies relating to the Website at any time, effective upon posting of an updated version of this Agreement on the applicable Website. You should regularly review this Agreement, as your continued use of the Website after any such changes constitutes your agreement to such changes.
1. Ownership of and License to Use Menlo Properties
1.1 Use of the Website. Menlo and its licensors own all rights, title and interest in the Website. The Website is protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Menlo grants you a limited license to use the Website solely for its intended purpose. Any future release, update or other addition to the Website shall be subject to this Agreement. Menlo and its licensors reserve all rights not granted in this Agreement.
1.2 Trademarks. Any of Menlo’s graphics, logos, service marks and trade names used on or in connection with the Website are the trademarks of Menlo and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Website are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website.
2. Password Protected Sections
To use portions of this Website, a username and password are required. Please take precautions to protect your password and contact us at [email protected] if you believe your account has been accessed by an unauthorized person.
3. Restrictions on Use of Website
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute or host the Website or any portion of the Website; (b) you shall not frame or use framing techniques to enclose any trademark, logo or the Website (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Menlo’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Website except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Website to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Website; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Website or use the Website in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm the Website, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Website, or interfering or attempting to interfere with use of the Website by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Website. Any unauthorized use of the Website terminates the licenses granted by Menlo pursuant to this Agreement.
Please do not send any information to Menlo that constitutes a trade secret or is confidential or proprietary. By submitting any ideas, suggestions, documents, and/or proposals via the Website or to Menlo (“Submissions”), you and anyone acting on your behalf agree that none of your Submissions will be treated as confidential or proprietary. We cannot accept responsibility for protecting against misuse or disclosure of any Submissions in the absence of our express written agreement to do so. Due to the large number of business plans and related materials that are submitted to Menlo, and the similarity of many such plans and materials, we may have already reviewed or may currently be reviewing materials and ideas similar to your Submissions.
5. No Implied Endorsements
In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by Menlo of that third party or of any product or service provided by a third party.
6. No Advice
The Website is for information purposes only. The information contained on the Website does not constitute investment advice or recommendations, nor should it be construed as an offer to sell or a solicitation to buy any securities. Although Menlo makes a good faith effort to provide accurate information on this Website, Menlo does not make any representation as to the completeness or accuracy of the information contained on this Website and certain material information, including risk factors and conflict disclosures, may not be included on this Website. The portfolio companies highlighted on this Website are not necessarily representative of our full portfolio of investments. We often highlight select companies to feature our investment theses and investment strategies.
7. Third-Party Links
The Website may contain links to third-party services such as third party websites or applications (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Website. Menlo does not control and is not responsible for Third-Party Links. Menlo provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.
You agree to indemnify and hold Menlo, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “Menlo Parties”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any claims concerning: (a) your misuse of the Website; (b) your violation of this Agreement; (c) your violation of any rights of another party; or (d) your violation of any applicable laws, rules or regulations. Menlo reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Menlo in asserting any available defenses. You agree that the provisions in this section will survive any termination of this Agreement or your access to the Website.
9. Disclaimer of Warranties and Conditions
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK, AND THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE MENLO PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. THE MENLO PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WEBSITE WILL MEET YOUR REQUIREMENTS OR (2) YOUR USE OF THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
10. Limitation of Liability
10.1 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE MENLO PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE SERVICES, WHETHER OR NOT MENLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE MENLO PARTIES BE LIABLE TO YOU FOR MORE THAN ONE HUNDRED DOLLARS ($100) IN THE TOTAL AGGREGATE AMOUNT.
10.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MENLO AND YOU.
At its sole discretion, Menlo may modify or discontinue the Website, or may modify, suspend or terminate your access to the Website, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Website, Menlo reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress.
12. International Users
The Website is controlled and offered by Menlo from its facilities in the United States of America. Menlo makes no representations that the Website is appropriate or available for use in other locations. Those who access or use the Website from other countries do so at their own volition and are responsible for compliance with local law.
13. Dispute Resolution
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Menlo and limits the manner in which you can seek relief from us.
13.1 Applicability of Arbitration Agreement. You agree that any dispute between you and us relating in any way to the Website or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Menlo may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
13.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Menlo Ventures Management, L.P., 2884 Sand Hill Rd, Suite 100, Menlo Park, CA 94025, Attn: General Counsel. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration. JAMS’s rules are also available at http://www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, Menlo will pay them for you. In addition, Menlo will reimburse all such JAMS’ filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in San Mateo County, California, or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Menlo. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
13.4 Waiver of Jury Trial. YOU AND MENLO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Menlo are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If a decision is issued stating that applicable law precludes enforcement of any of the limitations in this Section 13.5 as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts in San Mateo County in the State of California. All other claims shall be arbitrated.
13.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Menlo Ventures Management, L.P., 2884 Sand Hill Rd., Suite 100, Menlo Park, CA 94025, Attn: General Counsel or email to [email protected], within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
13.7 Severability. Except as provided in Section 13.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
13.8 Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Menlo.
13.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Menlo makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Menlo at the following address: Menlo, 2884 Sand Hill Rd., Suite 100, Menlo Park, CA 94025, Attn: General Counsel.
14. General Provisions
14.1 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Menlo’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
14.2 Force Majeure. Menlo shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.3 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Menlo agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state courts in San Mateo County, California or federal courts located in the Northern District of California.
14.4 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
14.5 Notice. You may give notice to Menlo at the following address: Menlo, 2884 Sand Hill Rd, Suite 100, Menlo Park, CA 94025, Attn: General Counsel. Such notice shall be deemed given when received by Menlo by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
14.6 Contact Information. If you would like to contact us with respect to the Website, please e-mail [email protected].
14.7 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.8 Severability. Subject to Sections 13.5 and 13.7, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
14.9 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.