NEPTUNE REM, LLC SUBSCRIPTION Agreement (FOR reward INTERESTS FOR ELIGIBLE REFERRALS)
Exhibit 4.7
NEPTUNE REM, LLC SUBSCRIPTION Agreement
(FOR reward INTERESTS FOR ELIGIBLE REFERRALS)
The following terms constitute a binding agreement (“Agreement”) between you, as an eligible Referrer or eligible referee (“you”), as applicable, of an eligible referral under the Realbricks Friends and Family Reward Program (the “Reward Program”) and Neptune REM, LLC, a Delaware Series Limited Liability Company (“Neptune,” “we,” or “us”). This Agreement will govern all your acquisitions of Reward Interests (the “Reward Interests”) under the Reward Program that you may, from time to time, receive from Neptune. By signing electronically below, you agree that you have read these documents and agree to the following terms, agree to transact business with us and receive communications relating to the Reward Interests electronically, and agree to have any dispute with us resolved by binding arbitration.
RECITAL
WHEREAS, Xxxxxxx has created the Reward Program to provide investors (each a “Referrer”) who meet eligibility standards set forth herein the opportunity to receive Reward Interests as a thank you for referring a friend or family member (each a “Referee”) to open a Realbricks account to join the Neptune community. Each eligible Referrer will be entitled to receive an award of one Reward Interest valued at $10.00 each (each a “Reward Interest”) per eligible referral, subject to a limitation of 1,000 Reward Interests per Referrer account and Referee account. Reward Interests will be fulfilled through Reward Interests issued under a qualified offering statement. The Reward Interest will be awarded at the account level.
AGREEMENT
In consideration of the covenants, agreements, representations, and warranties hereinafter set forth, and for other good and valuable consideration, receipt of which is hereby acknowledged, it is agreed as follows:
1. REWARD INTERESTS. Subject to the terms and conditions of this Agreement, we will issue to you, as an eligible Referrer of an eligible referral under the Reward Program, a Reward Interest per each eligible referral entitling you to receive from us one Reward Interest with a value of $10.00 per each eligible referral under the Reward Program. Additional Reward Interests will be available depending on the amount of Series Interest the referee purchases. Your commitment to acquire the Reward Interests pursuant to the terms and conditions of this Agreement will be made by you through an acceptance of this Agreement at xxx.xxxxxxxxxx.xxx (the “Realbricks Site”). Such acceptance is binding upon you.
2. PROCESSING OF REWARD INTERESTS. We will generally process a Reward Interest and deposit the Reward Interest issued pursuant to the Reward Interest in your account within 15 days following the date the eligible referee opens a qualifying account with the unique referral link designated to the eligible Referrer. Notwithstanding the foregoing, Reward Interests are limited to 1,000 Reward Interests per eligible Referrer’s account and per eligible referee’s account.
3. Terms of the Reward Interests. Each Reward Interest shall have the terms and conditions set forth in the applicable series designation issued to you, which such designations are filed as exhibits to Neptune’s offering circular to the Form 1-A (File No. 024-12356), as amended, filed with the U.S. Securities and Exchange Commission (“SEC”) available at: XXX.XXX.XXX .
Reward Interests may be subscribed by both accredited investors (as that term is defined in the Securities Act of 1933, as amended (the “Securities Act”) and non-accredited investors. Generally, we place no limit on the amount of Reward Interests which may be subscribed by an accredited investor. Pursuant to Rule 251(d)(2)(C) of the Securities Act, however, non-accredited investors who are natural persons may only subscribe the greater of 10% of their annual income or net worth and non-natural, non-accredited persons may subscribe up to 10% of the greater of their net assets or revenues for the most recently completed fiscal year.
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NO ENTITY OR PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS AGREEMENT OR THE OFFERING CIRCULAR AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY NEPTUNE.
4. Your Covenants and Acknowledgements.
You understand and acknowledge the following:
(a) The Reward Interests have not been registered under the Securities Act, or under the securities act of any other jurisdiction, nor is any such registration contemplated. The Reward Interests will be offered and awarded under the exemption provided by Section 3(b)(2) of the Securities Act and Regulation A promulgated thereunder pursuant to an offering statement on Form 1-A including the offering circular which forms a part thereof and the supplements and post-qualification amendments thereto (collectively, the “Offering Circular”) filed with the SEC available at: XXX.XXX.XXX and other exemptions of similar import in the laws of the states and other jurisdictions where the offering will be made. You have received and have had the opportunity to review the Offering Circular provided to you. Neither the SEC nor any state securities commission has passed upon the merits of or given its approval of any securities offered or the terms of the offering nor passed upon the accuracy or completeness of any Offering Circular or other selling literature. Any representation to the contrary is a criminal offense. The Reward Interests are being offered pursuant to an exemption from registration with the SEC; however, the SEC has not made an independent determination that the securities offered thereunder are exempt from registration.
(b) SUBSCRIPTION IN THE REWARD INTERESTS IS HIGHLY RISKY AND YOU MAY LOSE ALL VALUE OF SUCH SUBSCRIPTION. THESE ARE SPECULATIVE SECURITIES. YOU SHOULD SUBSCRIBE IN THESE SECURITIES ONLY IF YOU CAN AFFORD A COMPLETE LOSS OF YOUR SUBSCRIPTION. BEFORE SUBSCRIBING IN A REWARD INTEREST, YOU SHOULD REVIEW THE RISK DISCLOSURES AND OTHER TERMS OF THE SECURITIES OFFERING AVAILABLE IN THE NEPTUNE FORM 1-A OFFERING STATEMENT ON THE SEC’S XXXXX FILINGS DATABASE AT XXXX://XXX.XXX.XXX.
(c) ALL AGREEMENTS AND OBLIGATIONS RELATING TO YOUR REWARD INTERESTS ARE BETWEEN YOU AND NEPTUNE.
(d) YOU UNDERSTAND THAT AS NEPTUNE HAS A LIMITED OPERATING HISTORY, AND IS IN THE EARLY STAGES OF DEVELOPMENT, WE FACE INCREASED RISKS, UNCERTAINTIES, EXPENSES, AND DIFFICULTIES, WHICH COULD IMPACT YOUR SUBSCRIPTION.
(e) PLEASE SEE THE OFFERING CIRCULAR AND OUR OTHER FILINGS WITH THE SEC WHICH ARE AVAILABLE ON ITS WEBSITE AT XXX.XXX.XXX FOR CERTAIN RISK DISCLOSURES REGARDING YOUR SUBSCRIPTION IN THE REWARD INTERESTS.
(f) THE REWARD INTERESTS WILL NOT BE LISTED ON ANY SECURITIES EXCHANGE, NOR DO WE HAVE PLANS TO ESTABLISH ANY KIND OF TRADING PLATFORM TO ASSIST SUBSCRIBERS WHO WISH TO SELL THEIR REWARD INTERESTS. THERE IS NO PUBLIC MARKET FOR THE REWARD INTERESTS, AND NONE IS EXPECTED TO DEVELOP. REWARD INTERESTS MAY BE SUBJECT TO TRANSFER RESTRICTIONS.
(g) THE REWARD INTERESTS WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
(h) REWARD INTERESTS ARE NOT TRANSFERRABLE.
(i) WE WILL ISSUE THE REWARD INTERESTS ONLY IN ELECTRONIC FORM. SUBSCRIBERS WILL BE REQUIRED TO HOLD THEIR REWARD INTERESTS THROUGH NEPTUNE’S ELECTRONIC REGISTER.
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(j) NEPTUNE HAS INCURRED NET LOSSES IN THE PAST AND EXPECTS TO INCUR NET LOSSES IN THE FUTURE.
(k) IF THE SECURITY OF OUR SUBSCRIBERS’ CONFIDENTIAL INFORMATION STORAGE SYSTEMS IS BREACHED OR OTHERWISE SUBJECTED TO UNAUTHORIZED ACCESS, YOUR SECURE INFORMATION MAY BE STOLEN.
(l) UPON RECEIVING REWARD INTERESTS UNDER THE REWARD PROGRAM, YOU WILL GENERALLY REALIZE TAXABLE INCOME EQUAL TO THE FAIR MARKET VALUE OF THE REWARD INTERESTS. WE WILL REPORT THIS AMOUNT TO THE IRS USING FORM 1099-MISC AS APPLICABLE.
5. Your Acknowledgments, Representations, Warranties, and Covenants.
(a) You represent and warrant (i) at the time of the acquisition of Reward Interests that you are an accredited investor (as that term is defined in the Securities Act), or if you are not an accredited investor, you will not invest more than the greater of 10% of your annual income or net worth (for natural persons) or revenue or net assets for your most recently completed fiscal year end (if a non-natural person), (ii) that you satisfy any additional minimum financial suitability standards applicable to the state in which you reside, and (iii) that you covenant that you will abide by the maximum investment limits, as set forth below or as may be set forth on the Realbricks Site. You agree to provide any additional documentation reasonably requested by us, as may be required by the securities administrators or regulators of the federal government or of any state, to confirm that you meet such minimum financial suitability standards and have satisfied any maximum investment limits. You understand that the Reward Interests will not be listed on any securities exchange, that there will be no trading platform for the Reward Interests, and that Reward Interest acquirers should be prepared to hold the Reward Interests they acquired until the Reward Interests are repurchased by us at your demand or upon our redemption of the Reward Interests.
(b) You further represent and warrant to Neptune, as of the date of this Agreement and as of any date that you commit to subscribe for Reward Interests pursuant to Reward Interests under the Reward Program that: (i) you are a U.S. resident of majority age; (ii) you have the power to enter into and perform your obligations under this Agreement; (iii) this Agreement has been duly authorized, executed and delivered by you and (iv) in connection with this Agreement, you have complied in all material respects with application federal, state and local laws.
(c) You further represent, warrant and covenant that if you request the repayment of Reward Interests in the aggregate principal amount greater than $50,000, Neptune may make such repayment to you within 30 days of the request for such repayment.
(d) You should check the Office of Foreign Assets Control (“OFAC”) website at xxxx://xxx.xxxxx.xxx/xxxx before making the following representations. You represent that the amounts subscribed by you in the Reward Interests were not and are not directly or indirectly derived from activities that contravene federal, state or international laws and regulations, including anti-money laundering laws and regulations. Federal regulations and Executive Orders administered by OFAC prohibit, among other things, the engagement in transactions with, and the provision of services to, certain foreign countries, territories, entities and individuals. The lists of OFAC prohibited countries, territories, persons and entities can be found on the OFAC website at xxxx://xxx.xxxxx.xxx/xxxx. In addition, the programs administered by OFAC (the “OFAC Programs”) prohibit dealing with individuals1 or entities in certain countries regardless of whether such individuals or entities appear on the OFAC lists.
6. Neptune Representations and Warranties. Neptune represents and warrants to you, as of the date of this Agreement and as of any date that you commit to subscribe for Reward Interests, that: (a) it is duly organized and validly existing as a series limited liability company in good standing under the laws of the State of Delaware and has the requisite power to enter into and perform its obligations under this Agreement; (b) this Agreement has been duly authorized, executed, and delivered; (c) the Reward Interests have been duly authorized and, following subscription by you and electronic execution, authentication, and delivery to you, will constitute valid and binding obligations of Neptune enforceable in accordance with their terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, or other laws; and (d) Neptune has complied in all material respects with applicable federal, state, and local laws in connection with the offer and sale of the Reward Interests.
1 These individuals include specially designated nationals, specially designated narcotics traffickers and other parties subject to OFAC sanctions and embargo programs.
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7. No Advisory Relationship. YOU ACKNOWLEDGE AND AGREE THAT THE AWARD OF THE REWARD INTERESTS PURSUANT TO THIS AGREEMENT IS AN ARMS-LENGTH TRANSACTION BETWEEN YOU AND NEPTUNE. NEPTUNE IS NOT AN INVESTMENT ADVISER OR BROKER/DEALER. IN CONNECTION WITH THE AWARD OF THE REWARD INTERESTS, XXXXXXX IS NOT ACTING AS YOUR AGENT OR FIDUCIARY. XXXXXXX ASSUMES NO ADVISORY OR FIDUCIARY RESPONSIBILITY IN YOUR FAVOR IN CONNECTION WITH THE AWARD OF THE REWARD INTERESTS. NEPTUNE HAS NOT PROVIDED YOU WITH ANY LEGAL, ACCOUNTING, REGULATORY, INVESTMENT OR TAX ADVICE WITH RESPECT TO THE REWARD INTERESTS. YOU HAVE CONSULTED YOUR OWN LEGAL, ACCOUNTING, REGULATORY, INVESTMENT AND/OR TAX ADVISORS TO THE EXTENT YOU HAVE DEEMED APPROPRIATE.
8. Limitations on Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY TO THE OTHER REGARDING THE EFFECT THAT THIS AGREEMENT MAY HAVE UPON THE FOREIGN, FEDERAL, STATE, OR LOCAL TAX LIABILITY OF THE OTHER.
9. Further Assurances. The parties agree to execute and deliver such further documents and information as may be reasonably required in order to effectuate the purposes of this Agreement.
10. Consent to Electronic Transactions and Disclosures. Because Neptune operates only on the Internet, it is necessary for you to consent to transact business with us online and electronically. As part of doing business with us, therefore, we also need you to consent to our giving you certain disclosures electronically, either via the Realbricks Site or to the email address you provide to us. By entering into this Agreement, you consent to receive electronically all documents, communications, notices, contracts, and agreements arising from or relating in any way to you or our rights, obligations, or services under this Agreement (each, a “Disclosure”). The decision to do business with us electronically is yours. This document informs you of your rights concerning Disclosures.
Electronic Communications. Any Disclosures will be provided to you electronically through Xxxxxxxxxxxx.xxx either on our Realbricks Site or via electronic mail to the verified email address you provided. If you require paper copies of such Disclosures, you may write to us at the mailing address provided below and a paper copy will be sent to you.
Scope of Consent. Your consent to receive Disclosures and transact business electronically, and our agreement to do so, applies to any transactions to which such Disclosures relate.
Consenting to Do Business Electronically. Before you decide to do business electronically with us, you should consider whether you have the required hardware and software capabilities described below.
Hardware and Software Requirements. In order to access and retain Disclosures electronically, you must satisfy the following computer hardware and software requirements: access to the Internet; an email account and related software capable of receiving email through the Internet; a web browser which is SSL-compliant and supports secure sessions, and hardware capable of running this software.
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How to Contact Us regarding Electronic Disclosures. You can contact us via email at xxxxxxx@xxxxxxxxxx.xxx or in writing to Neptune REM, LLC, 00 X. Xxxxx Xx. Xxxxx X Xxxxxxxx, XX 00000.
You will keep us informed of any change in your email or home mailing address so that you can continue to receive all Disclosures in a timely fashion. If your registered email address changes, you must notify us of the change by sending an email to xxxxxxx@xxxxxxxxxx.xxx. You also agree to update your registered residence address and telephone number on the Realbricks Site if they change.
You will print a copy of this Agreement for your records. You agree and acknowledge that you can access, receive, and retain all Disclosures electronically sent via email or posted on the Realbricks Site.
11. Notices. All notices, requests, demands, required disclosures, and other communications to you from Neptune will be transmitted to you only by email to the email address you have registered on the Realbricks Site or will be posted on the Realbricks Site, and shall be deemed to have been duly given and effective upon transmission or posting. If your registered email address changes, you must notify Neptune promptly. You also agree to promptly update your registered residence/mailing address on the Realbricks Site if you change your residence. You shall send all notices or other communications required to be given hereunder to Neptune via email at xxxxxxx@xxxxxxxxxx.xxx or in writing to Neptune REM, LLC, 00 X. Xxxxx Xx. Xxxxx X Xxxxxxxx, XX 00000.
12. Miscellaneous. We reserve the right to make changes to this Agreement from time to time, and we will send or post electronic notice of such changes with ten days of the change(s). You understand and agree that these terms are subject to change.
The terms of this Agreement shall survive until the Reward Interests acquired by you are repaid by Neptune at your demand or redeemed by Neptune. The parties stipulate that there are no third-party beneficiaries to this Agreement. You may not assign, transfer, sublicense, or otherwise delegate your rights or responsibilities under this Agreement to any person without prior written consent from Neptune. Any such assignment, transfer, sublicense, or delegation in violation of this section shall be null and void. This Agreement shall be governed by the laws of the State of Delaware without regard to any principle of conflict of laws that would require or permit the application of the laws of any other jurisdiction. Any waiver of a breach of any provision of this Agreement will not be a waiver of any subsequent breach. Failure or delay by Neptune to enforce any term or condition of this Agreement will not constitute a waiver of such term or condition. If at any time subsequent to the date hereof, any of the provisions of this Agreement shall be held by any court of competent jurisdiction to be illegal, void, or unenforceable, such provision shall be of no force and effect, but the illegality and unenforceability of such provision shall have no effect upon and shall not impair the enforceability of any other provisions of this Agreement. The headings in this Agreement are for reference purposes only and shall not affect the interpretation of this Agreement in any way.
13. Notice of Dispute Resolution by Binding Arbitration and Class Action/Class Arbitration Waiver.
(a) IMPORTANT: PLEASE READ CAREFULLY. THE FOLLOWING PROVISION (“ARBITRATION PROVISION”) CONSTITUTES A BINDING AGREEMENT THAT LIMITS CERTAIN RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN RELIEF OR DAMAGES THROUGH COURT ACTION OR AS A MEMBER OF A CLASS. THAT MEANS THAT, IN THE EVENT THAT YOU HAVE A COMPLAINT AGAINST XXXXXXX THAT THE NEPTUNE IS UNABLE TO RESOLVE TO YOUR SATISFACTION, YOU AND XXXXXXX AGREE TO RESOLVE YOUR DISPUTE THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT, INSTEAD OF THROUGH COURTS OF GENERAL JURISDICTION OR THROUGH A CLASS ACTION. BY ENTERING INTO THIS AGREEMENT, YOU AND NEPTUNE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN ANY CLASS ACTION, EXCEPT IN CASES THAT INVOLVE PERSONAL INJURY. THE ARBITRATION PROVISION AND THE WAIVER OF THE RIGHT TO A JURY TRIAL AND CLASS ACTION IS NOT INTENDED TO BE DEEMED A WAIVER BY YOU OF OUR COMPLIANCE WITH THE EXCHANGE ACT AND SECURITIES ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER. THE ARBITRATION, CLASS ACTION WAIVER AND JURY WAIVER PROVISIONS DO NOT APPLY TO CLAIMS BROUGHT UNDER THE EXCHANGE ACT AND SECURITIES ACT.
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(b) “Claim” shall mean any dispute or controversy arising out of or relating to this Agreement, your use of the Realbricks Site, and/or the transactions, activities, or relationships that involve, lead to, or result from any of the foregoing, (except for cases pending in Small Claims Court as provided in Section 13(h) below, or claims for personal injury). Claims include, but not limited to breach of contract, fraud, misrepresentation, express or implied warranty, and equitable, injunctive, or declaratory relief, as well as claims relating to loan servicing, credit/collections, and securities matters, regardless of the originating source (common law, statute, constitution, regulation, etc.). Claims include matters arising as initial claims, counter-claims, cross-claims, third-party claims, or otherwise and include those brought by or against your assigns, heirs, or beneficiaries.
(c) Either party to this Agreement has the right to require binding arbitration as the sole and exclusive forum and remedy for resolution of a claim between you and Neptune. The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”). The procedure shall be governed by the AAA Commercial Rules, and the parties stipulate that the laws of the State of Delaware applies, without regard to conflict-of-law principles. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to controlling law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. Arbitration shall take place in the State of Delaware, or in such location as agreed upon by the parties.
(d) Absent agreement among the parties, the presiding arbitrator shall determine how to allocate the fees and costs of arbitration among the parties according to the administrator’s rules or in accordance with controlling law if contrary to those rules. Each party shall bear the expense of that party’s attorneys, experts, and witnesses, regardless of which party prevails in the arbitration, unless controlling law provides a right for the prevailing party to recover fees and costs from the other party. Notwithstanding the foregoing, if the arbitrator determines that your claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), we shall not be required to pay any fees or costs of the arbitration proceeding, and any previously paid fees or costs shall be reimbursed by you.
(e) If the amount in controversy exceeds $50,000, any party may appeal the arbitrator’s award to a three-arbitrator panel within thirty (30) days of the final award. Additionally, in the event of such an appeal, any opposing party may cross-appeal within thirty (30) days after notice of the appeal. The three-arbitrator panel may consider all of the evidence and issue a new award, and the panel does not have to adopt or give any weight to the first arbitrator’s findings of fact or conclusion. This is called “de novo” review. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (the “FAA”), and may be entered as a judgment in any court of competent jurisdiction.
(f) The parties agree that this Arbitration Provision is made pursuant to a transaction between you and Neptune that involves and affects interstate commerce and therefore shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by the law of the State of Delaware, subject to the limitations set forth in this Agreement. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The parties also agree that the proceedings shall be confidential to protect intellectual property rights.
(g) IF YOU DO NOT AGREE TO THE TERMS OF THIS ARBITRATION AGREEMENT, YOU MAY OPT OUT OF THIS ARBITRATION PROVISION BY SENDING AN ARBITRATION OPT-OUT NOTICE TO NEPTUNE REM, LLC, 00 X. XXXXX XX. SUITE R XXXXXXXX, WY 82801, THAT IS RECEIVED AT THIS ADDRESS WITHIN THIRTY (30) DAYS OF YOUR FIRST ELECTRONIC ACCEPTANCE OF THIS FORM. YOUR OPT-OUT NOTICE MUST CLEARLY STATE THAT YOU ARE REJECTING ARBITRATION; IDENTIFY THE AGREEMENT TO WHICH IT APPLIES BY DATE; PROVIDE YOUR NAME, ADDRESS, AND SOCIAL SECURITY NUMBER; AND BE SIGNED BY YOU. YOUR MAY CONVEY THE OPT-OUT NOTICE BY U.S. MAIL OR ANY PRIVATE MAIL CARRIER (E.G. FEDERAL EXPRESS, UNITED PARCEL SERVICE, DHL EXPRESS, ETC.), SO LONG AS IT IS RECEIVED AT THE ABOVE MAILING ADDRESS WITHIN THIRTY (30) DAYS OF YOUR FIRST ELECTRONIC ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. IF THE NOTICE IS SENT BY A THIRD PARTY, SUCH THIRD PARTY MUST INCLUDE EVIDENCE OF HIS OR HER LEGAL AUTHORITY TO SUBMIT THE OPT-OUT NOTICE ON YOUR BEHALF. IF YOUR OPT-OUT NOTICE IS NOT RECEIVED WITHIN THIRTY (30) DAYS, YOU WILL BE DEEMED TO HAVE ACCEPTED ALL TERMS OF THIS ARBITRATION AGREEMENT.
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(h) Xxxxxxx agrees not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration.
(i) This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the relationship of the parties; (ii) the bankruptcy or insolvency of any party or other person; and (iii) any transfer of any Reward Interest which you own, or any amounts owed on such Reward Interests, to any other person or entity. If any portion of this Arbitration Provision other than the prohibitions on class arbitration in Sections 13(a) and 13(h) is deemed invalid or unenforceable under any law or statute consistent with the FAA, it shall not invalidate the other provisions of this Arbitration Provision or this Agreement; if the prohibition on class arbitration is deemed invalid, however, then this entire Arbitration Provision shall be null and void.
(j) THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT UPON ELECTION OF ARBITRATION BY ANY PARTY. THE PARTIES HERETO WAIVE A TRIAL BY JURY IN ANY LITIGATION RELATING TO THIS AGREEMENT, OR ANY OTHER AGREEMENTS RELATED THERETO.
14. Entire Agreement. Except as otherwise expressly provided herein, this Agreement represents the entire agreement between you and Neptune regarding the subject matter hereof and supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between us. IF THERE IS A DISCREPANCY BETWEEN THE TERMS OF THIS AGREEMENT AND THE TERMS OF THE REWARD INTEREST, THE TERMS OF THE REWARD INTEREST SHALL PREVAIL.
15. Headings. All section headings herein are inserted for convenience only and do not modify or affect the meaning, construction, or interpretation of any of the provisions of this Agreement.
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IN WITNESS WHEREOF, the Referrer and Neptune have caused this Agreement to be duly executed as of the date first above written.
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