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General Terms & Conditions

Updated as of June 01, 2024

 

PLEASE READ CAREFULLY.

BY CREATING A USER ACCOUNT, LOGGING INTO, ACCESSING OR USING ANDES CAPITAL PROPRIETARY WEBSITE, ANDES CAPITAL INTERNET-BASED PLATFORM, KOREID, AND RELATED SERVICES, WHETHER FREE OR UPON PAYMENT OF RELEVANT FEES (collectively, the "System", as further defined below), YOU ACKNOWLEDGE AND AGREE TO COMPLY WITH THESE TERMS AND CONDITIONS, Andes Capital’S PRIVACY POLICY, AND ANY OTHER ADDITIONAL TERMS AND CONDITIONS SPECIFIC TO THE SERVICES (collectively, the “Agreement”).  THIS AGREEMENT WILL APPLY TO EACH USER (“YOU”), WHETHER YOU ARE ACCESSING THE SYSTEM THROUGH THE MAIN DOMAIN(S), KOREID MOBILE APP, MOBILE APPLICATION(S), OR THROUGH PRIVATE-LABEL SUBDOMAIN(S), ON BEHALF OF YOUR COMPANY OR AS AN INDIVIDUAL USER, WITH RESPECT TO YOUR USE AND/OR ACCESS TO THE SYSTEM AND/OR DATA (AS SUCH TERMS ARE DEFINED BELOW).

 

IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT ACCESS OR USE OUR SYSTEM. 

1.      MODIFICATIONS: This Agreement may change from time to time and you accept responsibility to check for any such changes, which will be available on the System. Your use and/or access of the System and/or Data after such notice will constitute your agreement to the amended Agreement. Notwithstanding the fact that you may be employed with or contracted to a company or other entity, you confirm by checking “I accept the terms in the Terms and Conditions” that you are personally bound by this Agreement.  

2.      DEFINITIONS: The following terms shall have the following meanings in this Agreement:

(a) “Account Information” means the user account and private password information provided to you for use in connection with access to and use of the System and the Data, and shall include any supplementary or substitute password issued by Andes Capital to you or on your behalf.

(b)  “Company” means, as applicable, the entity or organization on whose behalf you are accessing the System.

 

(c)  “Data” means and shall include, without limitation, Company’s records, documents, (including without limitation scanned and/or digitized documents) communications, data, text, statements, comments, correspondence, requests, responses, discussions, images, files, records, evidence of any sort, and any other materials that are, or are able to be perceived, downloaded, uploaded, authored, created, published, modified, edited, distributed or deleted via the System, regardless of computing device or software used, whether or not they include personal information according to applicable laws, and whether or not with respect to or originating from you, or Company, or your employer or entity to which you are contracted, or otherwise.

 

(d)  “System” also includes the proprietary and confidential Andes Capital corporate system and application provider solution providing access to the Andes Capital platform, services and software and/or other software applications in order to permit a User authorized access via the Internet to the System and to access, process, use and deal with the Data, subject to any restrictions imposed on a User by Company. The “System” also includes Andes Capital’s proprietary Single-Sign-On-Service, which offers you the possibility, after a one-off registration on the System, to log into third-party partner systems without having to create a new account, provide account opening information or go through the same registration process every time.

(e)  “User” means any individual, person or entity (including any parents, subsidiaries or affiliates, as well as their heirs, executors, administrators, trustees and authorized assignees) authorized to access or use the System, including but not limited to you, conditional on your accepting this Agreement and conducting yourself in accordance with the terms and conditions contained herein.

3.      REGISTRATION AND USER ACCOUNT 

For the use of the KoreID or other functionalities of the System, including, but not limited to, to access the Andes Capital Platform, you must register and create a User account. Registration as a User is only allowed if you are at least the age of majority in the jurisdiction in which you reside. You can set up only one (1) User account. You must provide correct and complete information in order to register for the KoreID. The Account Information is intended solely for personal use by you and therefore always to be kept secret and safe.

(2) You agree that your Account will be entirely “self-directed,” by which we mean you are solely responsible for all purchases, orders, investment decisions and instructions placed in or through your Account.


 

4.      ACCESS TO THE SYSTEM: You are granted a limited, personal, revocable and non-exclusive license and permission to access the System, and to access the Data subject to the provisions of this Agreement.  Access to the System is a privilege and not a right and the license and permission granted by Andes Capital may be terminated at any time without notice by Andes Capital in its sole discretion with no liability to you whatsoever.  Any use of the System not expressly permitted in this Agreement or otherwise by Andes Capital is prohibited and will be unlawful.

5.      MONITORING AND PRIVACY

(a)  Andes Capital HAS A RIGHT TO AND DOES MONITOR USE OF THE SYSTEM IN ORDER TO CARRY OUT ITS BUSINESS ACTIVITIES, ANALYZE USER ACTIVITY AND ENSURE COMPLIANCE WITH THIS AGREEMENT, ITS AGREEMENT WITH COMPANY, AND ANY OTHER APPLICABLE POLICIES AND PROCEDURES AND APPLICABLE LAWS, AS WELL AS TO MAINTAIN ADEQUATE SECURITY, DETECT AND PREVENT BREACHES OF SECURITY, IMPROPER OPERATION OF THE SYSTEM, INTRUSIONS OR MALICIOUS SOFTWARE, AND TO ANALYZE AND UNDERSTAND PATTERNS OF USE IN ORDER TO IMPROVE OPERATION OF THE SYSTEM.  MONITORING MAY INCLUDE READING OF COMMUNICATIONS AND ACTIVITIES, REVIEW OF UPLOADING ACTIVITIES AND REVIEW OF ALL AVAILABLE LOGS AND RECORDS OF ALL USER ACTIVITIES RELATED TO USE OF THE SYSTEM. INFORMATION OBTAINED IN SUCH ACTIVITIES MAY BE USED FOR RESPONDING TO INQUIRIES, PROCESSING ORDERS, KEEPING YOU INFORMED ABOUT YOUR ORDER STATUS, FOR STATISTICAL PURPOSES, FOR IMPROVING OUR WEBSITE AND ITS PERFORMANCE, FOR DEVELOPING BETTER PRODUCTS AND SERVICES AND OTHER PURPOSES RELATED TO OUR BUSINESS AND ENSURING COMPLIANCE WITH THIS AGREEMENT. ALL SUCH INFORMATION OBTAINED WILL BE SUBJECT TO Andes Capital’S PRIVACY POLICY (AS AMENDED FROM TIME TO TIME).

(b)  You warrant and represent that you will not use the System to upload, send or receive personal information about any individual, including any personal information of another User, other than as permitted by applicable privacy laws and that you will adhere to all the terms and conditions of this Agreement.

 

6.      ACCEPTABLE USE: You agree and undertake to always conduct yourself in a reasonable, courteous and professional manner in accessing and/or using the System, having regard to the focused and limited commercial purposes of the System and the purposes for access thereto being granted to you.  Without restricting the generality of the foregoing, you expressly agree as follows with respect to your use of the System:

(a)  You will comply with all requirements, rules and regulations published or stated by Andes Capital from time to time with respect to the System;

(b) You will promptly respond to requests from Andes Capital for further information or verifications;

(c)  You will comply with and observe all international, federal, provincial, state and local laws and regulations and other laws of applicable governmental authorities relating to your access to and/or use of the System;

(d)  You will not engage in any direct or indirect activity which in Andes Capital's opinion is likely to or is designed to interfere, or may interfere, with the proper operation of the System, or is likely to or is designed to expose, or may expose, Andes Capital to prosecution or to legal action of any kind and in any jurisdiction by any third party and/or User;

(e)  You will not upload or transmit in any manner any material that constitutes, comprises or contains, in whole or in part, obscene, violent, pornographic, adult, illegal, unlawful, tortious, offensive, racist, sexist, humiliating (or tending to hold or holding to ridicule), or discriminatory material or content, or that constitutes hate literature, or that unlawfully discriminates against or contributes to unlawful discrimination against any individual or person, or that advocates and/or threatens terrorism or violence;

(f)  You will not slander, libel or defame the character of any person or individual, whether directly or indirectly, nor contribute to or republish or distribute such defamation;

(g)  You will not infringe the intellectual property rights or industrial property rights of any User, third party, or of Andes Capital;

(h)  You will not disclose your Account Information to anyone other than authorized individuals within your organization or Andes Capital and you will not permit any individual to log in as you, or impersonate you;

(i)  You will not transmit or send bulk unsolicited commercial email or "spam" to any User or to anyone via the System or in connection with the System;

(j)  You will not engage in hacking, cracking, or any other kind of malicious conduct with respect to the System or the Data;

(k)  You will not knowingly, recklessly or carelessly transmit, send or upload any virus, Trojan horse, spyware, malware or other malicious or harmful software or code and you will take commercially reasonable steps, including the use of regularly updated anti-virus and anti-spyware software and similar technological measures to avoid doing any of the foregoing;

(l)  You will not decompile, reverse engineer or disassemble the System or any software on or related to the System, and you will not attempt to do any of the foregoing, nor will you counsel, authorize or assist any other person or individual to do so;

(m)  You will not attempt to learn or discover the Account Information of any other individual or User, whether by technological means, trickery, fraud, deception or otherwise; and

(n)  You will not tamper with or wrongfully intercept, or attempt to tamper with or wrongfully intercept, the communications, email or messages of any other User, nor will you use any technique or technology to disguise the source of an email, communication or message or to "spoof" or otherwise make any email, communication or message appear to originate from any source other than you, or your organization or Internet Service Provider.

(o)  You agree to receive messages from the system via email, sms, mobile, telephone, or regular mail.

7. SUGGESTIONS: Subject to the Privacy Policy, if you send to Andes Capital either directly or through the System any information, ideas, inventions, concepts, techniques, improvements, or know-how (“Suggestions”), with respect to the System, you acknowledge that Andes Capital can use the Suggestions without acknowledgment or compensation to you, and you hereby waive any claim of ownership or compensation or other rights you may have in relation to the Suggestions.

8. ORDERS: To enhance your use of the System, Andes Capital offers you the option to place orders for certain additional services, such additional services may be subject to additional terms and conditions. Andes Capital accepts the following methods of payment on the website: PayPal, Interac Online, ACH, EFT, Stable Coin, Visa and MasterCard. Any payments made by any credit card are subject to the approval of the financial institution that has issued the credit card.

9. THIRD PARTIES, SERVICES, CONTENT AND WEBSITE

(a)  The System includes Third Party Service providers that are not affiliated with Andes Capital (Third Party Services”). Third Party Services may include services that include but not limited to issuance platform, portfolio, personal dashboard, KoreID, KorePixel, KoreIssuance, KoreConX, KoreChain, KoreTransfer, identity verification, anti-money laundering, investor verification, background check, company verification, OFAC, due diligence report, 409a report, 820 report, rating report, research report, currency exchange rates, and Point of Sale (POS) systems, The Third Party Services may be available through the System or a mobile application. While our third party providers endeavors to offer timely and accurate data, there may be occasional delays or interruptions in the data updates due to circumstances beyond our control, including but not limited to technical issues within the third party providers’ systems or network disruptions. Currency exchange rates are refreshed approximately every hour by the service provider. Andes Capital does not guarantee the accuracy, timeliness, reliability, or completeness of the currency exchange data provided. The user acknowledges and agrees that the user is using the currency exchange data at their own risk. Andes Capital shall not be liable for any decisions, actions, or inactions taken by the user based on the currency exchange data provided. Andes Capital reserves the right to change the third-party service provider of external data at any time without prior notice to users. Under no circumstances shall Andes Capital be liable for any direct, indirect, incidental, special, or consequential damages that result from the use of, or the inability to use, the currency exchange data, even if Andes Capital has been advised of the possibility of such damages. By using the Andes Capital System, the user agrees to the terms set forth in this disclaimer and acknowledges that the user’s use of the external data is governed by these terms.

 

(b)  The System includes content supplied by companies that are not affiliated with Andes Capital ("Third Party Content"). Third Party Content may include prospectuses, fact sheets and other information about investments; general news and commentary; interactive tools; and data concerning the financial markets. Third Party Content providers include Kore, KoreConX, KoreSummit, KoreChain, KoreIssuance, KorePlatforms, KoreBuilders, SCN, Security Token Academy, InvestorIntel, Equities.com, Fintech.TV, and other third party providers that Andes Capital will be adding from time to time. Third Party Content may be available through framed areas, through hyperlinks to third party websites, or by simply publishing it on the System. Third Party Content is generally protected by copyright and is owned or licensed by the applicable Third Party Content provider.

 

(c)  Andes Capital has not been involved in the preparation, adoption or editing of Third Party Content and does not explicitly or implicitly endorse or approve such content. Neither Andes Capital nor the Third Party Content providers guarantee the accuracy, timeliness, completeness or usefulness of the Third Party Content, nor are such parties responsible or liable for any such content. Third Party Content is provided for informational purposes only and Andes Capital and the Third Party Content providers specifically disclaim any responsibility for Third Party Content. You use Third Party Content only at your own risk. Links provided on the System to mutual fund prospectuses may resolve to the fund's summary prospectus, if available, or alternatively to the fund's full prospectus.

 

(d)  THE THIRD PARTY CONTENT IS PROVIDED ON AN "AS-IS" BASIS. THE THIRD PARTY CONTENT PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

 

(e)  The System may also provide links to other websites or pages that are independently operated by third parties. Such third party websites are not under our control, management or supervision and we or our agents are not responsible or liable to you or any third party in any way for the content of any of these websites. Their inclusion does not constitute any warranties, approvals or endorsements of any sorts of these websites by us. All statements and/or opinions expressed in any third party websites are solely the opinions and the responsibility of the person or entity providing those materials.

You acknowledge that the use of third-party websites may be subject to terms and conditions contained in these websites and you agree to assume sole responsibility and risks for your use of these websites.

10.      REPRESENTATIONS AND WARRANTIES:  In addition to, and not in substitution for any warranties or representations contained in this Agreement or any other agreement between you and Andes Capital, you represent and warrant to Andes Capital as follows:

(a)  You have full legal capacity to enter into this Agreement and by doing so you will not be in breach of any agreement with, nor in breach of any legal duty to any third party or other User;

(b)  Any and all Data and other materials transmitted or uploaded by you will comply with this Agreement;

(c)  Any and all Data, materials or messages transmitted or uploaded by you will not infringe the intellectual property or industrial property rights of any third party or User, including without limitation copyrights, moral rights, trade-marks and patent rights, nor will such Data, materials or messages constitute wrongful disclosure or misappropriation of personal information, confidential information, the proprietary information or trade secrets of any third party or User; and

(d)  You will comply in all respects with the provisions of this Agreement, including without limitation the provisions set forth herein regarding Acceptable Use.

11.      OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS      

 

(a)  Andes Capital and/or its licensors are and shall remain the owner of the System.   You do not own the System.

(b)  You acknowledge and agree that the System is proprietary, unique and valuable to Andes Capital, and that the infrastructure platform, portal, arrangement, architecture, workflows, selection, design, improvements, modifications and enhancements related to the System and its features are protected by United States and international intellectual property rights, industrial property rights and treaties, including without limitation, copyright, trade-marks and other proprietary rights.

(c)  Andes Capital acknowledges and agrees that the Company or you, as the case may be, will remain the owner of the Data. Subject to the Privacy Policy, Andes Capital will be collecting and using certain Data, insights, profiles, use history, trends or other information resulting or learned from Andes Capital’s analysis of the Data (“Reports”). You acknowledge and agree that Andes Capital shall own such Reports.

12.      DISCLAIMERS AND LIMITATIONS: BY ACCEPTING OR ENTERING INTO THIS AGREEMENT, AND/OR BY USING OR ATTEMPTING TO ACCESS AND/OR USE THE SYSTEM, YOU EXPRESSLY ACKNOWLEDGE AND AGREE TO THE FOLLOWING: 

 

(a)  THE SYSTEM AND THE DATA ARE PROVIDED STRICTLY ON AN “AS IS, WHERE IS” AND “AS AVAILABLE” BASIS.  Andes Capital DOES NOT OWN AND HAS NO CONTROL OVER THE NATURE OR CONTENTS OF THE DATA. 

(b)  ANDES CAPITAL DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, OR ARISING FROM A COURSE OR CUSTOM OF USAGE OR TRADE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY DESCRIPTION WITH RESPECT TO THE SYSTEM AND/OR THE DATA.

(c)  ANDES CAPITAL MAKES NO WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS REGARDING THE SYSTEM OR THE DATA, OR THAT THE SYSTEM OR THE DATA WILL BE AVAILABLE WITHOUT ERRORS, OMISSIONS OR DEFECTS, OR THAT ERRORS, OMISSIONS OR DEFECTS WILL BE CORRECTED, OR THAT THE SYSTEM AND THE SERVER OR SERVERS ON WHICH IT IS HOSTED WILL BE FREE OF VIRUSES OR OTHER HARMFUL CONTENT, OR THAT THE SYSTEM WILL NOT INFRINGE THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OR MISAPPROPRIATE THIRD PARTY CONFIDENTIAL INFORMATION OR TRADE SECRETS. 

   

(d)  YOU ACKNOWLEDGE AND AGREE THAT THE SYSTEM IS SOFTWARE AND COMPUTER BASED, THAT THERE IS NO SUCH THING AS ERROR FREE SYSTEMS OR SOFTWARE, AND THAT THE DATA ORIGINATES FROM AND IS SUBJECT TO REVISION BY MANY AUTHORS AND SOURCES NOT UNDER THE CONTROL OF Andes Capital.  YOU THEREFORE AGREE THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH HEREIN ARE REASONABLE AND FREELY ACCEPTED.

(e)  AS A CONVENIENCE TO USERS OF THE SYSTEM, AND ALTHOUGH IT ACCEPTS NO OBLIGATION TO DO SO, Andes Capital MAY, IN ITS SOLE DISCRETION, INCLUDE LINKS TO OTHER SYSTEMS, COMPUTERS, SERVERS, WEBSITES OR RESOURCES UNDER THE CONTROL OF THIRD PARTIES (“THIRD PARTY RESOURCES”) AND OVER WHICH YOU ACKNOWLEDGE AND AGREE Andes Capital HAS NO CONTROL.  Andes Capital PROVIDES NO ENDORSEMENT, WARRANTY OR REPRESENTATION OF ANY KIND REGARDING THE PRODUCTS, SERVICES, CONTENT, ACCURACY OR APPROPRIATENESS OF CONTENT OF, OR ACCESSIBLE THROUGH, SUCH THIRD PARTY RESOURCES, OR WITH RESPECT TO THE DATA, AND YOU USE SUCH THIRD PARTY RESOURCES AND THE DATA SOLELY AND ENTIRELY AT YOUR OWN RISK AND HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST Andes Capital WITH RESPECT TO SUCH WEBSITES OR THE DATA.

(f)  EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, NONE OF Andes Capital OR ANY OF ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, AGENTS, EMPLOYEES OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY DAMAGES, COSTS OR LOSS WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE USE OR MISUSE OF, OR ANY DEFECTS, INACCURACIES, ERRORS OR OMISSIONS IN OR TO, THE SYSTEM, THE DATA, OR ANY LINKED THIRD PARTY RESOURCE, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, COMPENSATORY, SPECIAL, EXEMPLARY, PUNITIVE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF PROGRAMS, APPLICATIONS, INFORMATION OR DATA, FAILURE TO REALIZE EXPECTED REVENUES, PROFITS, OR SAVINGS, LOSS OF OR DAMAGE TO PROPERTY OF ANY KIND, HARM TO BUSINESS, OR ANY OTHER ECONOMIC OR PECUNIARY LOSS OF ANY KIND, WHETHER ARISING OUT TORT, CONTRACT, BREACH OF DUTY OR OTHERWISE, AND WITHOUT REGARD TO FORM OF ACTION.    THE FOREGOING PROVISIONS SHALL ALL APPLY EVEN IF Andes Capital HAS BEEN ADVISED BY YOU OR ANYONE ELSE OF THE POSSIBILITY OF ANY LOSS OR DAMAGE.

(g)  IN ANY JURISDICTION WHERE EXCLUSION OR LIMITATION OF LIABILITY FOR ANY TIME OF DAMAGES IS PROHIBITED, Andes Capital’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT ALLOWED BY THAT JURISDICTION.

(h)  THIS AGREEMENT PROVIDES A LICENSE AND ACCESS TO CERTAIN CONTENT AND IS NOT A SALE OF GOODS.  

13.  LIMITATION OF LIABILITY: WITHOUT DEROGATING FROM ANY OTHER LIMITATION OF LIABILITY CONTAINED IN THIS AGREEMENT, YOU AGREE THAT THE AGGREGATE OF ALL LIABILITY ON THE PART OF Andes Capital FOR BREACH OF ANY WARRANTY, GUARANTEE, TERM OR CONDITION CONTAINED IN THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED HEREIN, OR OF ANY OTHER PROVISION OF THIS AGREEMENT OR OF ANY AGREEMENT CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER BREACH GIVING RISE TO LIABILITY, INCLUDING A BREACH OF A CONDITION OR FUNDAMENTAL TERM OR FUNDAMENTAL BREACH OR BREACHES OR IN ANY OTHER WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED BY THIS AGREEMENT, FOR ANY AND ALL CAUSES OF ACTION WHATSOEVER AND, REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT, BREACH OF DUTY, STRICT LIABILITY OR TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY), SHALL BE LIMITED TO A MAXIMUM SUM OF ONE HUNDRED DOLLARS ($100.00) IN UNITED STATES CURRENCY.   THE FOREGOING PROVISIONS SHALL ALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.   

14.  EQUITABLE REMEDIES: You acknowledge and agree that a breach of this Agreement may cause Andes Capital irreparable harm for which no adequate remedy exists at law, and for which damages will not be an adequate remedy, and that upon any such breach or threatened breach Andes Capital shall be entitled to injunctive relief without prejudice to any other right in law or equity and without the necessity of prior demand or proof of damage, and without the necessity of providing an undertaking as to damages or posting a bond or surety.   

15.  INDEMNITY OF ANDES CAPITAL BY YOU: You will be liable to and shall indemnify and save harmless Andes Capital, its affiliates, third party providers and their respective officers, directors, shareholders, employees, agents, representatives, successors, and assigns from and against any and all claims, actions, suits, proceedings, costs, expenses, damage and/or liabilities (including reasonable legal fees) whatsoever arising out of, connected with, or resulting from: (a) your access to and use of the System and/or the Data; (b) any breach by you of this Agreement, or any breach by you of any warranty given by you; and (c) your actions and omissions in connection with your use of the System and/or the Data.  

16.  RIGHTS CUMULATIVE: The rights of Andes Capital under this Agreement shall be cumulative, and the election by Andes Capital to pursue any remedy, whether legal or equitable, shall not be deemed to be a waiver of the rights of Andes Capital to other remedies.

17.  GOVERNING LAW: This Agreement shall be governed by the federal laws of United States of America applicable therein.  Subject to the rights of Andes Capital to seek equitable relief in any court of competent jurisdiction for a breach of its rights as provided in this Agreement, you irrevocably submit and attorn to the jurisdiction of the courts of the State of New York.  Any litigation arising out of this Agreement shall be commenced and all proceedings, including examinations for discovery, and the trial shall be held in New York, NY, USA.

Dispute Resolution

In the event of any claim, controversy or alleged dispute between you and Andes Capital or its affiliates (“Dispute”), you hereby agree to attempt in good faith to amicably resolve any Dispute at least 30 days before instituting any legal proceeding. Each party agrees to submit any Dispute for resolution by final binding arbitration after serving written notice, which notice shall set forth in detail the controversy, question, claim or alleged breach along with your attempt to resolve such Dispute. Upon such notice and attempt to resolve, the party may then commence an arbitration proceeding pursuant to the rules of FINRA Dispute Resolution. Any proceedings will be held in New York, NY.

The decision(s) of the arbitrator(s) shall be final and binding and may not be appealed to any court of competent jurisdiction, or otherwise, except on very limited legal grounds. The implementation of arbitration decision(s) shall in no way be delayed or otherwise impaired pending the outcome of any appeal. Judgment upon the award rendered in an arbitration may be entered by any court having jurisdiction thereof. You agree that all disputes will be limited between you, individually, and Andes Capital. To the full extent allowable by law, you agree that no arbitration proceeding or other dispute resolution proceeding shall be joined with any other party or decided on a class-action basis.

 

Notwithstanding the foregoing, you agree that the following matters shall not, at the election of Andes Capital, be subject to binding arbitration: (1) any dispute related to, or arising from allegations of criminal activity; (2) any dispute concerning Andes Capital’s intellectual property rights; and (3) any claim for injunctive relief. Any court action commenced by you or Andes Capital in accordance with these Terms of Conditions shall be brought in the United States District Court of New York, and you and we hereby submit and consent to the personal jurisdiction of, and the service of process by, that Court.

18.  GENERAL PROVISIONS 

(a)  If any provision of this Agreement shall be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision of this agreement, and all such other provisions shall remain in full force and effect, and it is the intention of the parties hereto that if any provision of this agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the meaning that renders it valid.

(b)  No waiver of any right or of any breach of any provision of this Agreement by either party shall constitute a waiver of any other right or breach of any other provision, nor shall it be deemed to be a general waiver of such provision by such party or to sanction any subsequent breach thereof by the other party.

(c)  This Agreement is meant by the parties to not only apply to initial access to or use of the System and/or the Data, but also on an ongoing and continuous basis to any and all access to or use of the System and/or the Data.  

(d)  This Agreement and everything herein contained shall enure to the benefit of and be binding upon the parties together with their personal representatives, heirs, successors and permitted assigns but, being personal to you, this Agreement shall not be assigned by you, by operation of law or otherwise, without the prior written consent of Andes Capital, in its sole discretion, which consent may be unreasonably withheld.  Andes Capital may freely assign this Agreement.

(e)  This Agreement shall be governed by the laws of the State of New York, USA, and the federal laws of USA applicable therein. Any legal suit, action or proceeding arising out of or relating to this Agreement may be instituted in the federal or State courts of New York, in the State of New York.

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