Public.com Terms of Service
Last Updated: March 1, 2020
Welcome, and thank you for your interest in Public Holdings Inc. (“Public.com,” “we,” “our,” or “us”) and our website at www.public.com, our mobile application, and our Services (defined below). This Terms of Service is a legally binding contract between you and Public.com regarding your use of the Services.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. WITH THE EXCEPTION OF DISPUTES ARISING FROM THE BROKERAGE SERVICE (WHICH ARE RESOLVED IN ACCORDANCE WITH THE PUBLIC BROKERAGE AGREEMENT) AND CERTAIN OTHER KINDS OF DISPUTES DESCRIBED IN SECTION 18, YOU AGREE THAT DISPUTES ARISING UNDER THESE TERMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND BY ACCEPTING THESE TERMS, YOU AND PUBLIC.COM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. (SEE SECTION 18.)
LEGAL DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT: (1) THE CONTENT PRESENTED ON THE SERVICES ARE NOT INTENDED TO PROVIDE YOU OR ANYONE ELSE WITH INVESTMENT, LEGAL, TAX, INSURANCE OR ANY OTHER KIND OF PROFESSIONAL ADVICE; AND (2) PUBLIC.COM IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITIES FOR ACTIONS TAKEN BY YOU BASED ON CONTENT PRESENTED ON THE SERVICES.
ADDITIONAL TERMS. Your use of the Services are subject to all additional terms and conditions, policies, rules, or guidelines applicable to the Services or certain features of the Services together with any that we may post on or link to from the Services including the disclosures made available here: https://public.com/disclosures (collectively the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms. For the avoidance of doubt, if you are using the Brokerage Service, you are subject to these Terms and Additional Terms including the Open to the Public Investing, Inc. Brokerage Agreement (“Public Brokerage Agreement”) available here: https://public.com/disclosures. To the extent that any Additional Terms conflict with these Terms, the terms contained in the Additional Terms will control.
- Public.com Services Overview. Public.com is a social investing app. It lets you follow other users on the app, see what they are investing in and allows you to place your own investments in the US stock market. The “Public Service” includes our website at www.public.com, general news and information, commentary, educational material and information and data concerning the financial markets, securities and other subjects, market data such as quotations for securities transactions and/or last sale information for completed securities transactions reported in accordance with federal securities regulations, along with our related websites, networks, applications, mobile applications, and other social media services. The Public Service does not, however, include our online and mobile application-based discount stock brokerage services (the “Brokerage Service”). Together the Public Service and Brokerage Service are referred to as the “Services”
- Eligibility. You must be at least 18 years old to use the Services. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Services; and (c) your registration and your use of the Services is in compliance with any and all applicable laws and regulations. You may not authorize another user to use the Services on your behalf.
- Accounts and Registration. To access most features of the Services, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, phone number, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at email@example.com. For details about your brokerage account, see the Public Brokerage Agreement.
- General Payment Terms. Certain features of the Services may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. The fees set forth in this Section 4 are independent from all brokerage fees and charges described in the Public Brokerage Agreement.
- Price. Public.com reserves the right to determine pricing for the Services. Public.com will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Public.com may change the fees for any feature of the Services, including additional fees or charges, if Public.com gives you advance notice of changes before they apply. Public.com, at its sole discretion, may make promotional offers with different features and different pricing to any of Public.com’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
- Authorization. You authorize Public.com and its third party payment processors (including Braintree for debit card payments and Apex, for ACH transfers) to charge all sums for the orders that you make and any level of Services you select as described in these Terms or published by Public.com, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Public.com or its third party payment processors may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
- Delinquent Accounts. Public.com may suspend or terminate access to the Services, including fee-based portions of the Services, for any account for which any amount is due but unpaid. In addition to the amount due for the Services, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
- Limited License. Subject to your complete and ongoing compliance with these Terms, Public.com grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Services obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use of the Services.
- License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Services; (b) make modifications to the Services; or (c) interfere with or circumvent any feature of the Services, including any security or access control mechanism. If you are prohibited under applicable law from using the Services, you may not use it.
- Feedback. We welcome your feedback, comments and suggestions. If you choose to contribute by sending Public.com or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings, promotions, strategies or product/feature names or any related documentation, artwork, computer code, diagrams or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, you hereby grant Public.com an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Services and create other products and services. Feedback is provided on a non-confidential basis, and Public.com is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way. Public.com has no obligation to review, consider or implement your Feedback, or to return to you all or part of any Feedback for any reason.
- Ownership; Proprietary Rights. The Services are owned and operated by Public.com. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Services (“Materials”) provided by Public.com are protected by intellectual property and other laws. All Materials included in the Services are the property of Public.com or its third party licensors. Except as expressly authorized by Public.com, you may not make use of the Materials. Public.com reserves all rights to the Materials not granted expressly in these Terms.
- Third Party Terms
- Third Party Services and Linked Websites. Certain content is furnished by third parties (each, a “Third-Party Provider” and collectively, the “Third-Party Providers”). Such content (“Third Party Content”) includes, without limitation, any information, content, service or software made available by or through social media websites, blogs, wikis, online conferences, telecasts, podcasts, and other forums (collectively, the “Forums”). Third Party Content may be available through framed areas or through hyperlinks to the Third-Party Providers’ websites. Third-Party Content is not advice created or provided by Public.com and does not constitute a recommendation to buy, sell, or hold any security or securities. All communications made at or through the Forums are public. Neither Public.com nor the Third-Party Providers screen, review, approve or endorse any Third Party Content available on or through the Forums. Third Party Providers are not supervised or monitored by Public.com or any affiliate of Public.com. Public does not monitor, supervise or endorse any Third Party Content or any posts in the Forums, and users of Third Party Content are not supervised persons of Public.com or any affiliate, including without limitation Open to the Public Investing, Inc. No affiliate of Public.com is responsible or will be liable for any Third Party Content. Reliance on any Third Party Content available on or through the Forums is at your own risk. Public.com may provide tools through the Services that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Public.com with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Public.com may transfer that information to the applicable third party service. Third party services are not under Public.com’s control, and, to the fullest extent permitted by law, Public.com is not responsible for any third party service’s use of your exported information. The Services may also contain links to third party websites. Linked websites are not under Public.com’s control, and Public.com is not responsible for their content.
- Third Party Software. The Services may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Services are provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
- User Content
- User Content Generally. Certain features of the Public Services may permit users to upload and post content to the Public Service. “User Content” means any content that you upload, post or transmit to or through the Services including, without limitation, any text, photographs, audio files, graphics, videos and any other works subject to protection under the laws of the United States or any other jurisdiction, including, copyright, trademark, trade secret and patent laws, and excludes any and all Public.com Materials. Public.com does not guarantee the accuracy, integrity, appropriateness, availability or quality of any User Content, and under no circumstances will Public.com be liable in any way for any User Content. User Content is not advice created or provided by Public.com and does not constitute a recommendation to buy, sell, or hold any security or securities. Users creating User Content are not supervised or monitored by Public.com or any affiliate. Users are not supervised or monitored by Public.com. Public does not monitor, supervise or endorse any User Content, and Users are not supervised persons of Public.com or any affiliate, including without limitation Open to the Public Investing, Inc. No affiliate of Public.com is responsible or will be liable for any User Content.
- Screening User Content. Public.com offers you and other users the ability to submit User Content to or transmit through the Services. Public.com does not pre-screen any User Content, but reserves the right to remove, disallow, block or delete any User Content in its sole discretion. Public.com reserves the right to disable the ability to upload and post User Content for specific users at its sole discretion. Any User Content deemed to be misleading, an attempt to cause movement in a stock price, or a general falsehood regarding a security or the markets at large may lead to a restriction, closure or a potential escalation to enforcement authorities depending on the severity of the case. In addition, we have the right—but not the obligation—in our sole discretion to remove, disallow, block or delete any User Content (i) that we consider to violate these Terms or applicable law or to otherwise constitute Objectionable Content; or (ii) in response to complaints from third parties, with or without notice and without any liability to you. Without limiting the preceding sentences of this Section, Public.com also has the right—but not the obligation—to take remedial action in connection with any Objectionable Content posted on the Service as described more fully in Section 8.5 below. We recommend that you save copies of any User Content that you Post to the Service on your personal device(s) in the event that you want to ensure that you have permanent access to copies of such User Content.
- Intellectual Property Rights and License. You retain ownership of any rights you may have in your user content and submitting your User Content to the Services does not transfer ownership of your rights. You hereby grant Public.com an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit, and otherwise exploit and use all or any part of all User Content you post to or through the Services by any means and through any media and formats now known or hereafter developed, for any purposes including (i) advertising, marketing and promoting Public.com and the Services; (ii) displaying and sharing your User Content to other users of the Services; and (iii) providing the Services as authorized by these Terms. By posting User Content to or through the Services, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity or any other rights of a similar nature in connection with your User Content, or any portion thereof. You further grant Public.com a royalty-free license to use your user name, image and likeness to identify you as the source of any of your User Content. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you post to or through the Services.
- You Must Have Rights to the Content You Post. You must not post any User Content on or through the Service or transmit to Public.com any User Content that you consider to be illegal, confidential or proprietary. Any User Content posted by you to or through the Services or transmitted to Public.com will be considered non-confidential and non-proprietary, and treated as such by Public.com, and may be used by Public.com in accordance with these Terms without notice to you and without any liability to Public.com. You must not post any User Content to the Services if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to post to the Services. You represent and warrant that: (i) you own the User Content Posted by you on or through the Services or otherwise have the right to grant the licenses set forth in these Terms; (ii) the posting and use of your User Content on or through the Services does not infringe any privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, or third party including, the rights of any person visible in any of your User Content; (iii) the posting of your User Content on the Services will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the posting of your User Content on the Services does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person or company as a result of posting your User Content on the Services.
- Objectionable Content. You are not permitted to and agree not to post any User Content to the Services that is or could be interpreted by a reasonable person to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar or in violation of any applicable laws (including laws related to speech); (ii) bigotry, discrimination, hatred, intolerance, racism or inciting violence (including suicide), (iii) in violation of federal or state securities laws (including without limitation based on activities distributing insider information or providing content that could be considered attempts to manipulate the market), in each of clauses (i), (ii) and (iii) of this Section, as Public.com may determine in its sole and absolute discretion (collectively, “Objectionable Content”). The posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in these Terms may be raised as a defense against any third party claims arising from your posting of Objectionable Content. You also agree not to use the Services for illegal or unlawful purposes, including, without limitation, to stalk any other users or to encourage any user to harm themselves or any other person. Except as provided for in Section 10 below, if you encounter any Objectionable Content on the Public Service, then please immediately email Public.com at firstname.lastname@example.org or inform us through the functionality offered on the Public Service. You acknowledge and agree that Public.com provides you with the ability to report Objectionable Content as a courtesy, and Public.com has no obligation to remove or take any other action with respect to any Objectionable Content on the Public Service that you report to us. However, Public.com in its sole discretion may take any actions it deems necessary and/or appropriate against any user who posts Objectionable Content on the Service, including, warning the user, suspending or terminating the user’s account, removing all of the user’s User Content posted on the Public Service and/or reporting the user to law enforcement authorities, either directly or indirectly.
- User Content Representations and Warranties. Public.com disclaims any and all liability in connection with User Content. For the avoidance of doubt, Public.com will not be liable for any unauthorized use of User Content by any user. You are solely responsible for your User Content and the consequences of providing User Content via the Services. By posting User Content via the Services, you affirm, represent, and warrant that you will fully comply with Sections 8 and 9, and these Terms.
- Prohibited Conduct. In addition to any other restrictions set forth in these Terms, and without limiting those restrictions, when using the Services, you agree not to (and not to attempt to or assist or permit any person to):
- use the Services for any illegal purpose or violate any applicable federal, state, local, national, or international laws or regulations, or these Terms;
- violate any rules, regulations or laws of the Financial Industry Regulatory Authority, Inc., the Securities and Exchange Commission, the Commodities Futures Trading Commission, any state securities agency, any securities exchange or association, or any commodities or futures contract market or association;
- violate any terms and conditions of any Additional Terms including the Public Brokerage Agreement;
- violate, or encourage others to violate, any right of a third party, including by (i) infringing or misappropriating any third party intellectual property right, (ii) use any trademarks, service marks, design marks, logos, photographs or other content belonging to Public.com or obtained from the Services, (iii) make unauthorized copies of any content made available on or through the Services;
- provide any false personal information to Public.com, create a false identity or impersonate another person or entity in any way or perform any fraudulent activity including claiming a false affiliation, accessing any other Services account without permission, or falsifying your age or date of birth;
- interfere with security-related features of the Services or any user’s enjoyment of the Services, including by: (i) use any device, software or routine to interfere or attempt to interfere with the proper working of the Services, or any activity conducted on the Services, (ii) disabling or circumventing features that prevent or limit use or copying of any content, (iii) attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up the Services except to the extent that the activity is expressly permitted by applicable law, (iv) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code, (v) disrupting any network, equipment, or server connected to or used to provide the Services, (vi) disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment or any other aspect of the Services or communications equipment and computers connected to the Services, (vii) access, tamper with or use non-public areas of the Services, Public.com’s (and its hosting company’s) computer systems and infrastructure or the technical delivery systems of Public.com’s providers, (viii) create a new account with Public.com, without Public.com’s express written consent, if Public.com has previously disabled or suspended an account of yours, or (ix) use the Services, without Public.com’s express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming, (x) gain unauthorized access to the Services, to other Users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Services, (xi) bypass any approved software through which the Services is made available, (xii) frame or link to any of the materials or information available on the Services, or (xiii) interfere with or disrupt the Services, networks or servers connected to the Services or violate the regulations, policies or procedures of those networks or servers;
- interfere with any user’s enjoyment of the Services by: (i) restrict, discourage or inhibit any person from using the Services, disclose personal information about a third person on the Services or obtained from the Services without the consent of that person, or collect information about or threaten, harass, demean, embarrass, menace or intimidate users of the Services; (ii) making any unsolicited offer or advertisement to another user of the Services, (iii) collecting personal information about another user or third party without consent, (iv) solicit, or attempt to solicit, personal information from other users of the Services, (v) use the Services to send communications to persons who have requested that you not send them communications; or
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials;
- Digital Millennium Copyright Act
- Respect of Third Party Rights. Public.com respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our you to do the same. Infringing activity will not be tolerated on or through the Service.
- Repeat Infringer Policy. Public.com’s intellectual property policy is to (i) remove or disable access to material that Public.com believes in good faith or upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Services; and (ii) remove any User Content uploaded to the Services by “repeat infringers.” Public.com considers a “repeat infringer” to be any User that has uploaded User Content or Feedback to or through the Services and for whom Public.com has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. Public.com has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon Public.com’s own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Services has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Public.com with the User alleged to have infringed a right you own or control, and you hereby consent to Public.com making such disclosure. Your communication must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Public.com to locate the material;
- Information reasonably sufficient to permit Public.com to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
- Designated Agent Contact Information. Public.com’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Public Holdings Inc.
ATTN: Legal Department (Copyright Notification)
1 State street
New York, NY
Subject line: Copyright Notification
- Counter Notification. If you receive a notification from Public.com that material made available by you on or through the Services has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Public.com with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Public.com’s Designated Agent through one of the methods identified in Section 10.3d and include substantially the following information:
- A physical or electronic signature of the subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- The subscriber’s name, address and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which Public.com may be found, and that the subscriber will accept service of process from the person who provided notification under Section 10.3d above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Public.com in response to a Notification of Claimed Infringement, then Public.com will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Public.com will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Public.com will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Public.com’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Public.com’s system or network.
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Public.com] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Public.com reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
- Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
- Email. We may send you emails concerning out products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
- Brokerage Account. Any and all electronic communications and documentation (including tax documentation) regarding investments made through the Brokerage Service will be made available to you as set forth in the Public Brokerage Agreement.
- Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
- Term, Termination and Modification of the Service
- Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
- Termination. If you violate any provision of these Terms, your authorization to access the Services and these Terms automatically terminate. In addition, Public.com may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at email@example.com.
- Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Public.com any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination. Sections 5.3, 6, 8.3, 13.3, and 14 through 20 will survive expiration or termination of these Terms.
- Modification of the Service. Public.com reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Public.com will have no liability for any change to the Services or any suspension or termination of your access to or use of the Services.
- Indemnity. In addition to your indemnification obligations under the Public Brokerage Agreement, to the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Public.com and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Public.com Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims
- Disclaimers of Warranties
WITHOUT LIMITING ANY DISCLAIMER OF WARRANTIES MADE BY US IN ANY ADDITIONAL TERMS, THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PUBLIC.COM DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PUBLIC.COM DOES NOT WARRANT THAT THE SERVICES OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PUBLIC.COM DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR PUBLIC.COM ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE PUBLIC.COM ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICES AND YOUR DEALING WITH ANY OTHER SERVICES USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. PUBLIC.COM DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT PUBLIC.COM IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
- Legal Disclaimer
INVESTMENTS IN SECURITIES ARE NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION (FDIC) OR ANY OTHER GOVERNMENTAL AGENCY. PUBLIC.COM PROVIDES SELF-DIRECTED INVESTORS WITH A DISCOUNT BROKERAGE SERVICE, AND DOES NOT MAKE RECOMMENDATIONS OR OFFER INVESTMENT ADVICE OF ANY KIND. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING THE MERITS AND RISKS ASSOCIATED WITH THE USE OF ANY INFORMATION, MATERIALS, CONTENT, USER CONTENT, OR THIRD PARTY CONTENT (COLLECTIVELY “CONTENT”) PROVIDED THROUGH THE SERVICES BEFORE MAKING ANY DECISIONS BASED ON SUCH CONTENT.
AS A USER OF THE SERVICES, YOU ALONE ARE RESPONSIBLE FOR DETERMINING WHETHER ANY CONTENT, PRODUCT, SERVICE, SECURITY, OR OTHER FINANCIAL INSTRUMENT MENTIONED ON THE PUBLIC SERVICE IS SUITABLE FOR YOUR PERSONAL FINANCIAL PURPOSES. PAST PERFORMANCE DATA SHOULD NOT BE CONSTRUED AS INDICATIVE OF FUTURE RESULTS. YOU SHOULD CONSIDER YOUR INDUVIAL INVESTMENT OBJECTIVES AND RISK TOLERANCE BEFORE INVESTING. THE CONTENT PRESENTED ON THE PUBLIC SERVICE IS NOT INTENDED TO PROVIDE YOU OR ANYONE ELSE WITH INVESTMENT, LEGAL, TAX, INSURANCE OR ANY OTHER KIND OF PROFESSIONAL ADVICE. YOU SHOULD CONSULT WITH A FINANCIAL, TAX OR LEGAL PROFESSIONAL FOR ADVICE REGARDING YOUR SPECIFIC FINANCIAL, TAX OR LEGAL POSITIONS AND CIRCUMSTANCES.
TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PUBLIC.COM NOR THE THIRD PARTY PROVIDERS MAKE ANY REPRESENTATIONS, WARRANTIES OR OTHER GUARANTEES AS TO (1) THE ACCURACY OR TIMELINESS OF ANY PRICE QUOTES; (2) THE ACCURACY, TIMELINESS, COMPLETENESS OR USEFULNESS OF ANY CONTENT MADE AVAILABLE ON THE SERVICES; OR (3) THE PRESENT OR FUTURE VALUE OR SUITABILITY OF ANY SALE, TRADE OR OTHER TRANSACTION INVOLVING ANY PARTICULAR SECURITY OR ANY OTHER INVESTMENT. ANY AND ALL CONTENT PROVIDED TO YOU IS EXCLUSIVELY FOR INFORMATIONAL, PERSONAL AND NONCOMMERCIAL ACCESS AND USE. YOU AGREE THAT ANY RELIANCE BY YOU ON ANY PRICE QUOTES, CONTENT OR USE OF THE SERVICES IS AT YOUR OWN RISK. PRICE QUOTES MAY BE DELAYED 20 MINUTES OR LONGER, ACCORDING TO THE RULES AND REGULATIONS APPLICABLE TO EXCHANGES AND THIRD PARTY PROVIDERS.
PUBLIC.COM ALLOWS ITS USERS TO HAVE OTHER USERS ‘FOLLOW’ THEIR TRADE ACTIVITY. YOU AND OTHER USERS HAVE THE OPTION TO ALLOW YOUR TRANSACTIONS TO BE SEEN ON THE PUBLIC SERVICE BY OTHER USERS WHO HAVE FOLLOWED YOU. PUBLIC.COM DOES NOT RECOMMEND OR ENDORSE THESE SHARED TRANSACTIONS. YOU AND OTHER USERS ARE FREE TO DISCLOSE OR NOT DISCLOSE TO YOUR FOLLOWERS YOUR TRADING INFORMATION AND DO SO AT YOUR OWN DISCRETION AND RISK.
TO THE FULLEST EXTENT PERMITTED BY LAW, PUBLIC.COM IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITIES FOR REFERENCES TO OR INCLUSION OF SECURITIES WITHIN CONTENT. CONTENT MADE IN ASSOCIATION WITH ANY TRADE OR SECURITY DOES NOT REPRESENT A SOLICITATION OR RECOMMENDATION BY PUBLIC.COM TO BUY OR SELL ANY SECURITY.
YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTAND THE DISCLAIMERS PROVIDED IN THIS SECTION 16. FURTHERMORE, YOU REPRESENT AND WARRANT THAT YOU WILL NOT DISCLOSE, BUY OR SELL ANY SECURITY, IN BREACH OF A FIDUCIARY DUTY OR OTHER RELATIONSHIP OF TRUST AND CONFIDENCE, WHILE IN POSSESSION OF MATERIAL, NONPUBLIC INFORMATION ABOUT THE SECURITY. YOU ASSUME ALL RISKS IN TRADES DONE VIA THE BROKERAGE SERVICE.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PUBLIC.COM ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PUBLIC SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PUBLIC.COM ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 18.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE PUBLIC.COM ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PUBLIC SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PUBLIC.COM FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and Public.com in the most expedient and cost effective manner, and except as described in Section 18.2 and 18.3, you and Public.com agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Notwithstanding the foregoing, this Section 18 is not intended to resolve disputes arising out of Brokerage Service, such disputes are to be resolved as set forth in the Public Brokerage Agreement. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PUBLIC.COM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 18.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to these Terms by sending a letter to Public Holdings Inc., Attention: Legal Department – Arbitration Opt-Out, 1 State street, Floor 10, New York, NY that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Public.com receives your Opt-Out Notice, this Section 18 will be void and any action arising out of these Terms will be resolved as set forth in Section 19.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
- Arbitrator. Any arbitration between you and Public.com will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Public.com. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Public.com’s address for Notice is: Public Holdings Inc., 1 State street, Floor 10, New York, NY. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Public.com may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Public.com must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Public.com in settlement of the dispute prior to the award, Public.com will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) [$10,000].
- Fees. If you commence arbitration in accordance with these Terms, Public.com will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Public.com for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND PUBLIC.COM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Public.com agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If Public.com makes any future change to this arbitration provision, other than a change to Public.com’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Public.com’s address for Notice of Arbitration, in which case your account with Public.com will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 18.7 or the entirety of this Section 18 is found to be unenforceable, or if Public.com receives an Opt-Out Notice from you, then the entirety of this Section 18.7 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 19.2 will govern any action arising out of or related to these Terms.
- Governing Law. These Terms are governed by the laws of the State of New York without regard to conflict of law principles. You and Public.com submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York, New York for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in New York, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- No Email Orders. Public.com will not accept any orders placed by email as the time of order placement cannot be guaranteed. All orders not placed through the Brokerage Service must be made by phone.
- Contact Information. The Services are offered by Public Holdings Inc., located at 1 State street, Floor 10, New York, NY. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
- Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
- International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
- Notice Regarding Apple. This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Public.com only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.