Houston Lawyer Ken Bailey’s Luxury Art Seized for Non-Payment by Collateral Lender and Pawn Broker

ORDER RESETTING TRIAL (appears to be a sua sponte order, pushing back March trial to August, 2024)

Plaintiff’s Traditional Motion For Judgment

BIOGRAPHY

Dewey Burke is the Founder and Chief Executive Officer of Luxury Asset Capital, the leader in the alternative finance segment that provides loans using borrowers’ luxury assets as collateral.

As CEO, he is primarily responsible for formulating the company’s strategy and overseeing its execution.

Under his leadership, the company has experienced 8x growth of AUM since January of 2017 and acquired its largest competitor, Borro, in January of 2020.

Dewey was an executive in two alternative finance firms prior to founding Luxury Asset Capital.

Before that he was Vice President of a sub-Saharan Africa focused private equity firm backed by the Coors Family of Colorado, and a private equity analyst at international law firm Morrison & Foerster.

He earned a Bachelor’s degree from the University of North Carolina at Chapel Hill, double-majoring in economics and management.

As a student-athlete he played Men’s Basketball for Hall of Fame Coach Roy Williams and won two ACC Championships.

At Carolina he serves on the Leadership Council for the Center for Entrepreneurship at the Kenan-Flagler Business School, investing his time and energy to build the program and foster the growth of startups coming out of the University.

Dewey is also a member of the Advisory Board of the UNC Rams Club, the school’s principal fundraising organization for athletics.

Dewey lives in Denver, Colorado with his wife and two daughters and still enjoys playing basketball as well as competitive amateur golf.

TERMS OF USE

Last Updated: June 6, 2022

IMPORTANT! PLEASE CAREFULLY READ THESE TERMS OF USE (“TOU”) BEFORE USING THE WEBSITES, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. These TOU only apply to the websites which are owned, controlled, and/or operated by or on behalf of Luxury Asset Capital LLC and/or its subsidiaries (“LAC” or “we,” “our,” or “us”), however accessed and/or used, whether via personal computers, mobile devices, or otherwise (the “Websites”), or other interactive features or protocols that are owned or operated by LAC and are available through the Websites or that interact with the Websites or that interact with the Websites and post these TOU. You agree to these TOU by accessing or using the Websites, registering for, or using any of the products or services offered on the Websites (“Services”), by accepting, uploading, submitting or downloading any information or content from or to the Websites, or by otherwise expressly agreeing to these TOU.

THESE TERMS OF USE INCLUDE AN ARBITRATION PROVISION AND CLASS ACTION WAIVER. CAREFULLY REVIEW THE SECTION ENTITLED “Dispute Resolution – Arbitration and Class Action Waiver” BEFORE YOU AGREE TO THESE TERMS.

The Websites are intended exclusively for residents of the United States ages 18 and above.

IF YOU DO NOT CONSENT TO BE BOUND BY ALL OF THESE TOU, DO NOT USE THE WEBSITES OR OTHERWISE AGREE TO THESE TOU.

Modifications
We may modify these TOU at any time without notice to you by posting revised TOU on our Websites, and such modification will be effective upon posting by LAC on the Websites. If we make any changes to these TOU, we will change the “Last Updated” date above. Your continued use of our Websites after LAC posts a revised TOU constitutes your binding acceptance of these TOU, including any modifications that we make. Your use of the Website will be governed by the TOU in place on the date you access the Website. It is therefore important that you review these TOU regularly to ensure you are updated as to any changes.

Privacy Policy; Additional Terms; Additional Agreements
Our Privacy Policy (“Privacy Policy”) describes our practices concerning data that you provide or that we collect about you through the Websites or the Services, and you consent to our use of data in compliance with the Privacy Policy. Our Privacy Policy is posted on the Websites and available by clicking here: https://borro.com/privacy-policy/.

Some of the Services may be subject to additional terms (“Additional Terms”). Additional Terms applicable to the Service, will be posted online at the time you attempt to utilize the particular Service, provided offline when you provide information in person or by telephone, and shall be included in any repurchase agreement or other contract that you enter into with us (the “Additional Agreements”). Your use of those Services is subject to those Additional Terms and Additional Agreements, which are incorporated into these TOU by reference. In the event of an inconsistency between these TOU and any Additional Terms and/or Additional Agreements, the provisions of the Additional Terms and/or Additional Agreements take precedence and control. In the event of an inconsistency between any Additional Terms and any Additional Agreement, the provisions of the Additional Agreement shall take precedence and control. For example, sellers may submit an application through the Websites for consideration of a repurchase agreement and enter in ACH payment information for use if such repurchase agreement is accepted. Each payment made will be subject to (i) any Additional Terms posted online, and (ii) the terms and conditions set forth in the Additional Agreement.

Website Content and Ownership
The past, present and future content on the Websites, including, without limitation, organization, graphics, text, images, technology, applications, artwork, information, data, designs, compilations, and the trademarks, logos, domain names, trade names, service marks and trade identities; any and all copyrightable material (including source and object code); and all other materials related to the Websites, including, without limitation, the “look and feel” of the Websites (collectively, “Content”), are protected by applicable U.S. copyright laws, international conventions, other applicable copyright laws and other proprietary (including, but not limited to, intellectual property) rights and are owned or controlled by LAC, its subsidiaries, affiliates or its licensors. Except as expressly set forth in these TOU or otherwise expressly granted to you in writing by LAC, no rights (either by implication, estoppel or otherwise) are granted to you. Any and all rights to use any Content not expressly granted to you under this TOU are hereby reserved for LAC and/or its subsidiaries, affiliates or its licensors. Nothing contained in this TOU will affect, impair, or limit in any way LAC’s rights to exploit fully any or all of the Content. The Websites and the Content are intended solely for personal, non-commercial use. You may download or copy the Contents and other downloadable materials displayed on the Sites for your personal use only. No right, title or interest in any downloaded Content is transferred to you as a result of any such downloading or copying. Except pursuant to the express limited grant of rights hereunder, you are prohibited from copying, reproduction, alteration, rearrangement, sale, leasing, renting, distributing, redistributing, modifying, downloading, exchanging, creating of derivative works, uploading, posting, transmitting, publishing or otherwise exploiting the Content, directly or indirectly, including removing or altering the Content. You agree to abide by any and all additional copyright notices, information, or restrictions contained in any part of the Websites (including the Content) or as LAC may impose from time to time. Moreover, you agree that you will not remove any proprietary notices or labels contained in or on the Content. Copying, archiving or storing any part of the Websites for a purpose that is not permitted by these TOU is expressly prohibited without prior written permission from LAC or the applicable copyright holder as identified on the Websites. You acknowledge and agree that you will not acquire or claim any rights in the Content, or aid or abet anyone else in doing so. The terms of this paragraph do not apply to information you submit to the Websites in connection with any Services or User Upload Information addressed below.

The information contained on the Websites is intended for general information purposes only. We have made reasonable efforts to ensure that the information on the Websites is accurate at the time of posting, however there may be inaccuracies and occasional errors. We make no representations or warranties about the information provided on or through this Website, including but not limited to information obtained through links to any third-party websites, and we do not assume any responsibility for updating information provided on or through the Websites. We accept no liability for any inaccuracies or omissions in the Websites and any decisions based on information contained in the Websites are the sole responsibility of the user.

Restrictions; Termination
You agree not to use our Websites or Services to:

Promote surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information.
Upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same.
Use any material or information, including images or photographs, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.
Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another.
Restrict or inhibit any other user from using and enjoying our Websites and Services.
Harvest or otherwise collect information about others, including e-mail addresses.
Violate any applicable laws or regulations.
Create a false identity for the purpose of misleading others.
Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the Services or other user or usage information or any portion thereof.
LAC reserves the right, at any time and without notice, to modify, alter, suspend or terminate all or any part of the Websites and to restrict or prohibit access to them. LAC shall not be liable to any party for such modification, alteration, suspension, restriction or termination.

If you object to any of the terms set forth in these TOU, you must discontinue use of the Websites.

Sections 1 through 3 and 5 through 17 will survive any termination of your access to the Website, whether we terminate your access or you voluntarily discontinue your use.
You agree that we will not be liable to you or any third party for taking any of these actions.

Compliance with Law
You shall not use the Websites for any illegal purposes. You agree not to send any unsolicited promotional or advertising material, spam or similar materials or any volume messages and/or interfere with the operation of the Websites or with the enjoyment of the Websites by other users.

Links to Third Party Sites
The presence of links to third party sites does not constitute or imply endorsement by LAC of the opinions or views expressed by these linked websites, and LAC does not verify, endorse, or take responsibility for the accuracy, currency, completeness or quality of the content contained in these sites. Furthermore, LAC is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised by or through such third-party sites. To the extent that third party sites collect personally identifiable information from you, please be advised that in no event shall LAC assume or have any responsibility or liability for the manner in which such information is collected or for any claims, damages, or losses, whether in contract, tort (including negligence) or otherwise, arising out of it in connection with your access to and/or use of those sites. In no event will LAC be liable to you for any direct, indirect, incidental, consequential, or special loss or other damage arising out of or in connection with your use of such third-party site(s).

Copyrights and Copyright Agent
If you believe that material posted on the Websites infringes your copyrights, please provide our copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (“DMCA”): (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Our copyright agent for notice of claims of copyright infringement on or regarding the Websites can be reached as follows:

Service Provider: Luxury Asset Capital LLC
Ellen Reilly
Reilly Intellectual Property Law Firm
1325 East 16th Avenue, Denver, Colorado 80218
(303)839-8700
www.patentsdenver.com

Upon receipt of a Notification, service provider will take such action as appropriate under the DMCA.

Registration; Contract for Purchase with Option to Repurchase.
Registration. Joining and registering on our Websites is free. To become a registered member (“Member”), we ask you to provide certain Personal Information, as further described in our Privacy Policy. You agree to provide accurate, complete, and up-to-date Personal Information during the registration process, and to maintain the accuracy of such information while you use the Services. When you sign up to become a Member, you will be asked to choose a username and password, which will enable your access to the Service. You are solely responsible for any and all use of your username and password and for maintaining their confidentiality. You agree not to provide your username and password to any other person or to use another member’s username and password at any time. You agree to notify us immediately if you suspect any unauthorized use of or access to your username and password. You are responsible for any use or misuse of your account or the Services or the Websites resulting from any third party using a password or username issued to you. If you apply to enter into a Contract for Purchase with Option to Repurchase, we will ask you for additional Personal Information in the application.

Contract for Purchase with Option to Repurchase. We may provide you with an opportunity to apply to enter into a Contract for Purchase with Option to Repurchase. LAC reserves the right to refuse any application at any time prior to the execution of the Contract for Purchase with Option to Repurchase by both parties. Applications are available on the “Application” tab of the Websites. Please review the Additional Terms prior to submitting an application. You will be required to provide a current, government issued ID in order to execute a Contract for Purchase with Option to Repurchase (or other type of pawn agreement).

Restrictions on our Services. There are some limitations on our Services. We reserve the right to accept applications in our sole discretion. We do not accept certain types of tangible personal property, as further described on our Websites or by calling us at the number shown on our Websites. We reserve the right to refuse to accept certain types of tangible personal property as collateral at our sole discretion.
Fees and other Charges. We charge fees for our Services. You will be given an opportunity to review and accept the fees that will be charged in connection with each Contract for Purchase with Option to Repurchase. Please review our Additional Terms and any terms set forth in the Contract for Purchase with Option to Repurchase before you enter into the Contract for Purchase with Option to Repurchase. We will charge you applicable taxes, if any. All fees and currency amounts are quoted in U.S. Dollars.
Shipping Policy. Shipping and handling of assets is addressed in the Additional Terms, which you must read and accept prior to submitting an application.
Your Authority. By submitting an application, you represent and warrant that you have good and marketable title to the property, free of all encumbrances of any kind.
Payment Obligation and Credit Card Authorization
When online payment for Services pursuant to an Additional Agreement is offered through the Websites, you will be prompted to authorize us to charge the bank account that you provide in accordance with the terms of the Additional Agreement(s).

Once payments have been charged, they are nonrefundable except in accordance with the terms of the Additional Agreement(s). You will also be responsible for paying any authorized payments charged to your account by someone who authorizes a debit from your account without your permission, even if your bank does not cover such costs.

If we do not receive payment from your bank, you agree to pay all amounts due upon our demand in accordance with the terms of the Additional Agreement. ACH CCD payments shall be governed by the Operating Rules of the National Automated Clearing House Association (“NACHA”).

Your Conduct on our Websites
If we request registration information from you, you will provide us with true, accurate, current, and complete information. If you create a user account, you agree to accept responsibility for all activities that occur under your account or password, if any, and agree you will not sell, transfer or assign your user account. You will promptly update your registration to keep it accurate, current, and complete. If we issue you a password, you may not reveal it to anyone else. You may not use anyone else’s password. You are responsible for maintaining the confidentiality of your accounts and passwords. You agree to immediately notify us of any unauthorized use of your passwords or accounts or any other breach of security. You also agree to exit from your accounts at the end of each session. We will not be responsible for any loss or damage that may result if you fail to comply with these requirements.

Indemnification
You agree to defend, indemnify and hold harmless LAC, its subsidiaries, affiliates, and the directors, officers, employees, shareholders, members, owners, vendors, partners, contractors, agents, licensors, successors, assigns, or other representatives of each of them (“LAC Parties”) with respect to any and all actions, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, deficiencies, interests, penalties, fines, costs and expenses of whatever kind, including reasonable attorneys’ fees, arising out of or relating to these TOU, including, without limitation: (a) your use of the Websites; (b) your violation of these TOU, any Additional Terms, or any law, rule, or regulation, including, without limitation, those relating, intellectual property infringement, defamation, or authorization; or (c) your use of the Content. You will cooperate as fully and reasonably as required by LAC in the defense of any claim. Notwithstanding the foregoing, LAC retains the exclusive right to assume the exclusive defense and control of any matter for which you are required to indemnify us and/or settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against LAC herein under the terms and provisions of this Section, and in no event shall you settle any such claim in any way that is adverse to LAC or requires any payment or admission of fault by LAC without LAC’s prior written approval.

Disclaimers
We disclaim any responsibility for the deletion, the failure to store, the mis-delivery, or the untimely delivery of any information or material. We disclaim any responsibility for any harm resulting from downloading or accessing any information or material on the Internet using search results from our Websites. We disclaim any responsibility for, and if you subscribe to one of our fee-based services you will not be entitled to a refund as a result of, any service outages that are caused by our maintenance on the servers or the technology that underlies our Websites, failures of our service providers (including telecommunications, hosting, and power providers), computer viruses, natural disasters or other destruction or damage of our facilities, acts of nature, war, civil disturbance, or any other cause beyond our reasonable control.

THE WEBSITES, INCLUDING, WITHOUT LIMITATION, ALL CONTENT AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE WEBSITES, ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, LAC MAKES NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER (EXPRESS OR IMPLIED) ABOUT: (A) THE WEBSITES; (B) THE CONTENT ON OR AVAILABLE THROUGH THE WEBSITES; (C) THE FUNCTIONS MADE ACCESSIBLE ON OR ACCESSED THROUGH THE WEBSITES; (D) THE MESSAGES AND INFORMATION SENT FROM THE WEBSITES BY USERS; (E) ANY PRODUCTS OR SERVICES OFFERED VIA THE WEBSITES, INCLUDING, BUT NOT LIMITED TO, HYPERTEXT LINKS; AND/OR (F) SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE WEBSITES OR ANY LINKED SITE. LAC DOES NOT WARRANT THAT THE WEBSITES, ANY OF THE WEBSITES’ FUNCTIONS, OR ANY CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE WEBSITES OR THE SERVERS THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

LAC DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE WEBSITES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND IN ANY EVENT, LAC SPECIFICALLY DISCLAIMS SUCH WARRANTIES. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE WEBSITES, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE WEBSITES OR THE CONTENT. FURTHER, LAC DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE. YOU EXPRESSLY AGREE THAT YOU WILL ASSUME THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF OUR WEBSITES AND THE ACCURACY OR COMPLETENESS OF ITS CONTENT. LAC, AND ITS DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER REPRESENTATIVES SHALL NOT BE LIABLE FOR THE USE OF THE WEBSITES, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THIS AGREEMENT.

Limitation of Liability
YOU UNDERSTAND AND AGREE THAT LAC LIMITS ITS LIABILITY IN CONNECTION WITH YOUR USE OF THE WEBSITES AS SET FORTH BELOW:

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL LAC BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE, CONSEQUENTIAL, OR STATUTORY DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (1) THE WEBSITES OR THE CONTENT; (2) THE USE OF, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITES; (3) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY LAC OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE WEBSITES OR CONTENT; (4) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OWNERS; (5) ANY ERRORS OR OMISSIONS IN THE WEBSITES’ TECHNICAL OPERATION, EVEN IF FORESEEABLE OR EVEN IF LAC HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE WEBSITES), OR UNDER FEDERAL OR STATE STATUTES OR REGULATIONS. IN NO EVENT WILL LAC BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL LAC’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED ONE HUNDRED DOLLARS ($100).

THE PARTIES AND INDIVIDUALS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO ANY USER’S COMPUTER, MODEM, CELL PHONE, HARDWARE, SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION.

YOUR ACCESS TO AND USE OF THIS WEBSITE IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE WEBSITE OR ANY OF THE CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE WEBSITES OR THE CONTENT.

BY ACCESSING ANY OF THE WEBSITES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU EXPRESSLY WAIVE, THE BENEFITS OF ANY LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES THAT A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR CONSUMER DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE.

CALIFORNIA RESIDENTS—IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

ACCESSING FROM NEW JERSEY—IF YOU ARE ACCESSING THE WEBSITES FROM NEW JERSEY, YOU (A) ASSUME ALL RISKS OF LOSSES OR DAMAGES RESULTING FROM YOUR USE OF, OR INABILITY TO USE, THE SITES; (B) IRREVOCABLY WAIVE ALL LOSSES OF INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) THAT MAY OCCUR AS A RESULT OF YOUR USE OF THE SITES OR YOUR RECEIPT OF EMAILS AND TEXT MESSAGES FROM US; (C) EXPRESSLY AGREE TO RELEASE AND DISCHARGE LAC AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION RESULTING, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE SITES OR YOUR RECEIPT OF EMAILS AND TEXT MESSAGES FROM US; AND (D) YOU VOLUNTARILY GIVE UP OR WAIVE ANY RIGHT THAT YOU MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST US FOR LOSSES OR DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR OTHER LEGAL THEORY, INCLUDING ANY CLAIM BASED ON ALLEGED NEGLIGENCE ON THE PART OF LAC AND ITS AFFILIATES AND ITS AND THEIR AGENTS AND EMPLOYEES. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS “WAIVER AND RELEASE” AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY.

Governing Law, Venue and Jurisdiction
THESE TOU, WITH THE EXCEPTION OF CERTAIN MATTERS GOVERNED BY THE FEDERAL ARBITRATION ACT AS SPECIFIED IN PARAGRAPH 16, SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO, WITHOUT REGARD TO ANY CONFLICTS OF LAWS RULES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.

You agree that jurisdiction over and venue in any legal action or proceeding directly or indirectly arising out of or relating to the Websites, your Use or Access thereof, or these TOU, to the extent the action or proceeding is not subject to arbitration under paragraph 16, must be exclusively in the state or federal courts located in Denver, Colorado, and you hereby consent and submit to the exclusive personal jurisdiction and venue of these courts located in Denver, Colorado for any such legal proceeding.

Authority
You represent that you have all requisite power and authority to agree to be bound by these TOU, and to perform all of the acts and obligations set forth in these TOU.

Dispute Resolution – Arbitration and Class Action Waiver
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. YOU AGREE THAT BY USING THIS WEBSITE OR OTHERWISE AGREEING TO THESE TOU, YOU AND LAC ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AND LAC 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, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.

You and LAC agree that any and all claims and disputes arising from or relating in any way to the subject matter of these TOU, your use of the Website, or your and LAC’s dealings with one another in connection with the Websites shall be finally settled and resolved through BINDING INDIVIDUAL ARBITRATION as described in this section. This agreement to arbitrate is intended to be interpreted broadly. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. The arbitration will be conducted by Judicial Arbiter Group, Inc. (“JAG”) using one arbitrator with substantial experience in resolving commercial contract disputes, who shall be selected from the appropriate list of JAG arbitrators in accordance with the Arbitration Rules and Procedures of JAG. If JAG is unable or unwilling to arbitrate a dispute, then the dispute may be referred to any other arbitration organization or arbitrator that you and LAC both agree upon in writing or that is appointed pursuant to section 5 of the Federal Arbitration Act (“FAA”).

For any claim where the total amount of the award sought is $10,000 or less, the arbitrator, you, and LAC must abide by the following rules: (a) the arbitration shall be conducted solely based on telephone or online appearances and/or written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in the County of Denver, State of Colorado. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.

YOU AND WE AGREE THAT “CLAIMS” AND “DISPUTES” SUBJECT TO THIS ARBITRATION PROVISION ARE TO BE GIVEN THE BROADEST POSSIBLE MEANING AND INCLUDE CLAIMS OF EVERY KIND AND NATURE, INCLUDING, BUT NOT LIMITED TO, INITIAL CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS AND THIRD-PARTY CLAIMS, AND CLAIMS BASED ON ANY CONSTITUTION, STATUTE, REGULATION, ORDINANCE, COMMON LAW RULE (INCLUDING RULES RELATING TO CONTRACTS, TORTS, NEGLIGENCE, FRAUD OR ANY OTHER INTENTIONAL WRONGS) AND EQUITY. THEY INCLUDE CLAIMS AND DISPUTES THAT SEEK RELIEF OF ANY TYPE, INCLUDING DAMAGES AND/OR INJUNCTIVE, DECLARATORY, OR OTHER EQUITABLE RELIEF.

There is no judge or jury in arbitration. Generally, arbitration procedures are simpler and more limited than rules applicable in court and review by a court is limited. Neither you nor LAC will be able to have a court or jury trial or participate in a class action or class arbitration. You and LAC each understand and agree that by agreeing to resolve any dispute through individual arbitration, YOU AND LAC ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION, OR ANY SIMILAR PROCEEDING. The arbitrator may not consolidate the claims of multiple parties.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OF USE, YOUR USE OF THE WEBSITES, OR YOUR AND LAC’S DEALINGS WITH ONE ANOTHER must be commenced in arbitration within one (1) year after the cause of action accrues. After that one (1)-year period, such cause of action or claim is permanently barred. Some jurisdictions do not allow time limitations other than those set forth in such state’s statute of limitations laws. In such cases, the applicable statute of limitations provided for under the laws of such state shall apply.

You and we agree that all challenges to the validity and applicability of the arbitration provision—i.e. whether a particular claim or dispute is subject to arbitration—shall be determined exclusively by the arbitrator. Notwithstanding any provision in these terms to the contrary, you and we agree that if the class-action waiver above is deemed invalid or unenforceable, neither you nor we are entitled to arbitration and any proceeding shall be brought and proceed exclusively in the state and federal courts of competent jurisdiction located in the County of Denver, State of Colorado. If the arbitration provision in this section is found unenforceable or to not apply for a given dispute, then the proceeding shall be brought and proceed exclusively in the state and federal courts of competent jurisdiction located in the County of Denver, State of Colorado, and you and we agree to submit to the personal jurisdiction of each of these courts for the purpose of litigating such claims or disputes, and you and we still waive any right to a jury trial and waive any right to initiate or proceed in a class or collective action. You also remain bound by any and all limitations on liability and damages included in these TOU. This arbitration agreement and class action waiver shall survive termination of your use of the Websites and/or termination of our dealings with you.

This arbitration agreement involves interstate commerce and, therefore, shall be governed by the FAA, 9 U.S.C. §§ 1-16, and not by state law. THE ARBITRATOR WILL FOLLOW APPLICABLE SUBSTANTIVE LAW TO THE EXTENT CONSISTENT WITH THE FAA, APPLICABLE STATUTES OF LIMITATION AND APPLICABLE PRIVILEGE RULES, AND SHALL BE AUTHORIZED TO AWARD ALL REMEDIES AVAILABLE IN AN INDIVIDUAL LAWSUIT UNDER APPLICABLE SUBSTANTIVE LAW, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, STATUTORY, AND PUNITIVE DAMAGES, AS WELL AS, DECLARATORY, INJUNCTIVE, AND OTHER EQUITABLE RELIEF—INCLUDING PUBLIC INJUNCTIVE RELIEF AND ATTORNEYS’ FEES AND COSTS. Information on AAA and how to start arbitration can be found at www.adr.org or by calling 800-778-7879.

AN INTENDED BENEFICIARY OF THIS ARBITRATION PROVISION MAY ENFORCE IT IN FULL WITH RESPECT TO ANY CLAIMS BETWEEN THEM ON THE ONE HAND AND YOU ON THE OTHER ARISING FROM OR IN ANY WAY RELATING TO THE WEBSITES, OUR DEALINGS WITH YOU, OR THIS ARBITRATION PROVISION. INTENDED BENEFICIARIES ARE OUR AGENTS, PRINCIPALS, REPRESENTATIVES, DIRECTORS, OFFICERS, SHAREHOLDERS, GOVERNORS, MANAGERS, AND MEMBERS. INTENDED BENEFICIARIES ALSO ARE OUR PARENTS, SUBSIDIARIES, AFFILIATES, PARTNERS, LICENSEES, ATTORNEYS, PREDECESSORS, SUCCESSORS, JOINT VENTURERS, CONTRACTORS, ASSIGNS, DESIGNEES, SERVICERS, AND SERVICE PROVIDERS. A SERVICE PROVIDER IS ANY THIRD-PARTY PROVIDING US OR ANY INTENDED BENEFICIARY ANY GOODS OR SERVICES ARISING OUT OF OR IN ANY WAY RELATING TO THE WEBSITES, OUR DEALINGS WITH YOU, OR THIS ARBITRATION PROVISION. INTENDED BENEFICIARIES INCLUDE PAST, PRESENT, AND FUTURE PERSONS LISTED IN THIS PARAGRAPH. THIS ARBITRATION PROVISION MAY BE ENFORCED BY OR AGAINST ANY PERSON OR ENTITY PURPORTING TO BRING CLAIMS ON YOUR BEHALF, INCLUDING ANY AGENT, REPRESENTATIVE, GUARDIAN, OR TRUSTEE. THIS ARBITRATION PROVISION MAY ALSO BE ENFORCED BY OR AGAINST ANY PERSON OR ENTITY WHO ACQUIRES ANY RIGHT OR INTEREST THAT, BUT FOR THE TRANSFER OF THE RIGHT OR INTEREST, WOULD HAVE BELONGED TO US OR AN INTENDED BENEFICIARY OF THIS ARBITRATION PROVISION, INCLUDING, BUT NOT LIMITED TO, ANY PERSON WHO ACQUIRES OWNERSHIP OF OR THE RIGHTS TO ANY CONTRACT BETWEEN YOU AND US.

IF YOU WISH TO OPT-OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF WHEN YOU FIRST USE OUR WEBSITES OR SERVICES, OR FIRST SUBMIT THROUGH THE WEBSITES OR SERVICES A REQUEST FOR INFORMATION, YOU MUST SEND US A LETTER OR EMAIL STATING, “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” AT THE FOLLOWING MAILING OR EMAIL ADDRESS AND MUST INCLUDE YOUR FULL NAME AND MAILING ADDRESS:

Luxury Asset Capital LLC

Attn: Kim Mrvos

4100 E Mississippi Ave, Suite 1850

Denver, CO 80246

Email: info@luxuryassetcapital.com

In the event you opt out of the arbitration provision, you agree to litigate exclusively in the state or federal courts of competent jurisdiction located in the County of Denver, State of Colorado and you agree to submit to the personal jurisdiction of each of these courts for the purpose of litigating such claims or disputes, and you still waive your right to a jury trial, waive your right to initiate or proceed in a class or collective action, and remain bound by any and all limitations on liability and damages included in these TOU.

Miscellaneous
We may be required by state or federal law to notify you of certain events. You hereby acknowledge and agree that such notices will be effective upon our posting them on our Websites or delivering them to you via email. You may update your email address by visiting the Services where you have provided contact information. If you do not provide us with accurate information, we will not be responsible for failure to notify you. These TOU—including all Additional Terms, conditions, and policies on the Services that are incorporated into these terms by reference and, if applicable, any Additional Agreements—constitute the entire agreement between you and us and supersede all prior agreements with respect to the subject matter hereof.

LAC’s failure to exercise or enforce any right or provision of these TOU shall not constitute a waiver of such right or provision.

If any part of these TOU is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of the TOU shall continue in effect.