Park West Asset Management Website Terms of Use
Last Updated: June 15, 2023
These Terms of Use (“Terms of Use”) state the terms and conditions under which you (“you,” or “your“) may use our website located at www.parkwestllc.com (the “Site”), and any Content and Services (as defined below) offered through the Site.
Please read these Terms of Use carefully. They, along with our Privacy Policy (collectively, the “Agreement”), govern your use of the Site and affect your legal rights, including limiting your damages if you sue us. If you do not agree with the terms and conditions outlined in this Agreement, you may not access or otherwise use the Site. Any use of the Site in a manner inconsistent with these Terms of Use is deemed unauthorized access and may be subject to civil or criminal penalties.
The Site may contain various information in the form of text, graphics, photos, sound and video clips, underlying code and software, and other materials relating to us, as well as third-party content, (collectively, the “Content”). By accessing, and/or using the Site and any services that may be made available through the Site (the “Services”), you acknowledge that you have read, understood and agree to be legally bound by this Agreement. We reserve the right to amend this Agreement from time to time and without prior notice to you. If you use the Site after the amended Agreement has been posted, you will be deemed to have agreed to the amended Agreement.
Nothing contained in these Terms of Use is intended to modify or amend any other written agreement you may have with us (“Other Agreements”) that may currently be in effect. In the event of any inconsistency between these Terms of Use and any Other Agreements, the Other Agreements will govern.
I. Limited Right to Use
Park West grants you a limited right to use the Site for personal, non-commercial use. Your right to use the Site is subject to your agreement to abide by the Agreement in its entirety, as well as all applicable local, state, national, and international laws, rules, and regulations. We may revoke your right to use all or any portion of the Site at any time and for any reason.
II. Restrictions on Use
As a condition of your use of the Site, you agree that you will not, under any circumstances:
(i) Use any robot, spider, intelligent agent, other automatic device, or manual process to monitor, “mine”, manipulate or copy the web pages on the Site;
(ii) Use any device, software or routine to interfere or attempt to interfere with the proper working or circumvent, disable or otherwise compromise any security features of the Site;
(iii) Knowingly or recklessly upload or transmit to the Site any data or material that contains viruses, spyware, worms or other malicious software code designed to adversely affect the operation of the Site or Park West’s software, hardware or networks;
(iv) Take any action, including flooding, spamming, mailbombing and crashing, that imposes an unreasonable or disproportionately large load on Park West’s infrastructure;
(v) Transmit to the Site, or to any Park West personnel, any profane, defamatory, libelous, threatening, obscene or unlawful material;
(vi) Use the Site for any unlawful purpose or for the promotion of illegal activities;
(vii) Reverse engineer, decompile or disassemble the underlying software;
(viii) Reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any Content;
(ix) Remove any notices, warnings, labels, annotations or instructions from any portion of the Site or any related material, including, without limitation, any trademark, copyright, or other proprietary notices or license provisions;
(x) Otherwise invade the privacy of, obtain the identity of, or obtain any Personal Information or other confidential information about any user of the Site.
Park West prohibits the use of any links to the Site from any other websites unless establishment of such a link is approved in advance by Park West in writing. You may not frame any elements of the Site with any other website.
III. Intellectual Property Rights
The Site and the Content are protected by copyrights, trademarks, trade secrets, patents, or other proprietary rights (whether registered or not, and wherever in the world those rights may exist) owned by Park West or third parties that have licensed their materials or provided services to us.
Your access to or viewing of materials posted to the Site does not confer any license under any of our or any third party’s intellectual property rights or otherwise authorize you to use any trademark, logo, service mark, copyright, or other intellectual property, except as explicitly provided herein, agreed to by us, or permitted under applicable law. You may not reproduce or redistribute in whole or in part, in any format, the Content of the Site without the express written approval of Park West.
IV. Copyright Infringement Complaints and Notification Procedures
If you believe that any Content on the Site violates yours or a third-party’s copyright, please notify Park West as indicated below with a notice including (i) a description of the copyrighted work that you claim has been infringed; and (ii) a description of where the material that you claim is infringing is located on the Site.
V. International Use
The Site is operated and controlled by Park West in the United States, and the Content provided in or accessible through the Site is, unless otherwise specified, directed at residents of the United States. Despite the global nature of the Internet, Park West makes no claims that the Content or the Site are appropriate or may be viewed or used outside the United States where access may be illegal or prohibited. Park West makes no representations that the transactions, products or services discussed on or accessible through the Site are available or appropriate for sale or use in all jurisdictions or by all users. Those who access the Site from outside the United States do so on their own initiative and are responsible for establishing the legality, usability and correctness of any Content and the compliance with local laws, rules and regulations. You may not use or export the Content in violation of U.S. export laws and regulations. The Content provided in or accessible through the Site is not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be illegal or which would subject Park West and/or its affiliates to any registration or other requirement within such jurisdiction or country.
VI. Links to Third-Party Websites
The Site may provide links to websites operated by other entities (“External Sites”). These Terms of Use govern only our Site and not any such External Sites. Park West’s decision to link to an External Sites is strictly for your convenience and not a sponsorship, endorsement or recommendation of the third party or the content or services of the linked External Sites. If you decide to access linked External Sites, your access is governed by the terms of use and privacy policies of those External Sites, and you do so at your own risk. Park West makes no representation or commitment and accepts no responsibility for any such External Sites, or any transactions completed, or contracts entered into by you with any such third-party or any security threats they may cause to your system.
VII. Disclaimer of Warranty; Limitation of Liability
THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PARK WEST DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, SUITABILITY OR USEFULNESS OF ANY PORTION OF THE SITE. PARK WEST DOES NOT WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, ITS SERVER OR ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SITE ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE IS ASSUMED SOLELY BY YOU. PARK WEST DOES NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL, REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS TO THE FULL EXTENT PERMITTED BY LAW. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE IS TO STOP USING THE SITE.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITES, THE SERVICES AND/OR THE PRODUCTS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITES, THE SERVICES AND/OR THE PRODUCTS SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100) EXCEPT AS EXPRESSLY SET FORTH IN THE TERMS AND CONDITIONS OF SALE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
THE WEBSITES AND THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS LISTED ON THE WEBSITES AND THE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE WEBSITES AND THE SERVICES AND/OR ADD OR REMOVE CONTENT AT ANY TIME WITHOUT NOTICE.
VIII.Indemnification
You will indemnify, defend, and hold Park West and its shareholders, members, officers, directors, employees, agents, and representatives (collectively, “Park West Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any Park West Indemnitee in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from (i) your breach of this Agreement; (ii) your misuse of the Site, the Services, or the Content; (iii) your violation of any third-party right, including without limitation any copyright, trademark, property, or privacy right; or (iv) your negligence, gross negligence, willful misconduct, fraud, misrepresentation or violation of law.
IX. No Offers or Advice
The Content on the Site is provided for informational purposes only and is not, and may not be relied on in any manner as, professional, tax, accounting, legal, ERISA or financial advice or an offer to sell or a solicitation of an offer to buy services of Park West or any of Park West’s affiliated entities. None of the information contained on the Site has been filed with the U.S. Securities and Exchange Commission, any securities administrator under any state securities laws or any other governmental or self-regulatory authority, and no governmental authority has passed on the merits of the offerings or the adequacy of the information contained on the Site. To the extent that past performance is available through the Site, past performance is not indicative of future results, and no representation is being made that any investment will or is likely to achieve profits or losses similar to those achieved in the past, or that significant losses will be avoided.
X. Binding Arbitration
In the event of a dispute arising under or relating to this Agreement or any other products or services provided by us (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 18 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
XI. Class Action Waiver
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
XII. Equitable Relief
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of Arizona for purposes of any such action by us.
XIII.Controlling Law; Exclusive Forum
The Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of California for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
XIV.Termination
We may at any time terminate these Terms of Use and your access to the Site if:
(i) We believe that you have breached or attempted to breach any provision of the Agreement;
(ii) We are required to do so by law;
(iii) We are transitioning to no longer providing the Site to users in the country or state in which you reside or from which you use the Site;
(iv) The provision of the Site to you by us is, in our opinion, no longer commercially viable; or
(v) In our sole discretion, at any time and for any other reason.
Your continued use of the Site following such termination may result in your liability for conversion, misappropriation, trespass to chattels and all other claims and causes, regardless of the identity of claimant or injured party, arising from or relating to your continued use of the Site.
The following sections shall survive the termination of these Terms of Use:
“Use of Personal Information,” “Intellectual Property Rights,” “Disclaimer of Warranty; Limitation of Liability,” “Indemnification,” “Termination,” “Binding Arbitration,” “Class Action Waiver,” “Equitable Relief,” “Controlling Law; Exclusive Forum,” and “Miscellaneous.”
XV. Miscellaneous
Severability. If any section of these Terms of Use are deemed unlawful, void or for any reason unenforceable by a court of competent jurisdiction, such provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms of Use, and the remainder of these Terms of Use shall continue in full force and effect.
Waiver. Our failure to act with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches.
Term for Cause of Action. Regardless of any statute or law to the contrary, you must commence any cause of action you may have with respect to your use of the Site within one (1) year after the claim or cause of action arises.
Entire Agreement. Other than with respect to Other Agreements, these Terms of Use and the Privacy Policy constitute the entire agreement between you and Park West regarding the subject matter hereof and govern your use of the Site, superseding any prior agreement between you and us on this subject.
XVI.How to Contact Us
If you have any questions, comments, or concerns about this Agreement or the information practices of the Site, please contact Park West at legal@parkwestllc.com.