USER AGREEMENT (CONTINUED)
(continued from page 1 of User Agreement)
24. Limitation of Liability; No Warranty; Risks. IN NO EVENT SHALL AcloudBank LABS, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, MEMBERS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE (I) FOR ANY AMOUNT OF DIGITAL ASSETS OR OTHER ITEMS OF VALUE ASSOCIATED WITH YOUR USE OF THE AcloudBank LABS SERVICES OR (II) FOR ANY LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL OR REPUTATION, LOSS OF DATA, DIMINUTION IN VALUE OR BUSINESS OPPORTUNITY, ANY LOSS, DAMAGE, CORRUPTION OR BREACH OF DATA OR ANY OTHER INTANGIBLE PROPERTY OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH ANY USE OF THE AcloudBank LABS SITE OR THE AcloudBank LABS SERVICES, OR THIS AGREEMENT, EVEN IF AcloudBank LABS HAS BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, EXCEPT TO THE EXTENT OF A FINAL JUDICIAL DETERMINATION THAT SUCH DAMAGES WERE A RESULT OF AcloudBank LABS’ GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT OR INTENTIONAL VIOLATION OF LAW. IN NO EVENT SHALL AcloudBank LABS’ AGGREGATE LIABILITY RELATING TO THESE TERMS, YOUR USE OF THE SITE OR THE SERVICES, OR ANY RESULTS OBTAINED OR OUTCOMES DETERMINED BY YOUR USE OF THE SITE OR THE SERVICES (REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM NEGLIGENCE OR OTHERWISE) EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES UNDER THE FEE ARRANGEMENT ALONE (NOT TO INCLUDE MECHANICAL COSTS, BLOCKCHAIN TRANSACTION COSTS OR ANY OTHER FEES OR COSTS) GIVING RISE TO THE LIABILITY IN THE TWENTY FOUR HOURS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, OR, IF NO FEES UNDER THE FEE ARRANGEMENT HAVE BEEN PAID, EXCEED $50.00 USD. IN JURISDICTIONS WHERE THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES IS NOT PERMITTED, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
THE AcloudBank LABS SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AcloudBank LABS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. AcloudBank LABS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE AcloudBank LABS SITE, ANY PART OF THE AcloudBank LABS SERVICES, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE. AcloudBank LABS DOES NOT GUARANTEE THAT ANY OPERATION WILL BE EXECUTED, ACCEPTED, RECORDED OR REMAIN IN TACT. EXCEPT FOR THE EXPRESS STATEMENTS SET FORTH IN THIS AGREEMENT, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED UPON ANY OTHER STATEMENT OR UNDERSTANDING, WHETHER WRITTEN OR ORAL, WITH RESPECT TO YOUR USE AND ACCESS OF THE AcloudBank LABS SERVICES AND THE SITE. WITHOUT LIMITING THE FOREGOING, YOU HEREBY UNDERSTAND AND AGREE THAT AcloudBank LABS WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO: (I) ANY INACCURACY, DEFECT OR OMISSION OF DIGITAL ASSET INFORMATION OR DATA, OR ANY ERROR, DELAY OR INTERRUPTION IN THE TRANSMISSION OF SUCH DATA OR ANY FAILED OR UNCOMPLETED TRANSACTIONS; (II) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING OUR WEBSITES, SOFTWARE, SYSTEMS OPERATED BY US OR ON OUR BEHALF OR ANY OF THE AcloudBank LABS SERVICES OR ANY WEBSITE OR SERVICE LINKED TO OUR WEBSITE; (III) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN OUR WEBSITES, SOFTWARE, SYSTEMS OPERATED BY US OR ON OUR BEHALF OR ANY OF THE AcloudBank LABS SERVICES; OR (IV) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR USE OF AcloudBank LABS SERVICES.
YOU FURTHER UNDERSTAND, ACCEPT AND AGREE THAT YOUR USE OF ANY OF OUR SERVICES ASSOCIATED WITH OR IN CONNECTION WITH DIGITAL ASSETS IS DONE ENTIRELY AT YOUR OWN RISK, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY DIGITAL ASSET WALLET OR WALLETS AND/OR YOUR USE OF ANY SOFTWARE THAT CONNECTS BLOCKCHAINS TO ONE ANOTHER. YOU ACKNOWLEDGE AND ACCEPT THAT THE USE OF SUCH SERVICES IS SUBJECT TO SIGNIFICANT RISK OF HACKING AND/OR SYSTEMS FAILURE WHICH MAY RESULT IN THE LOSS OF A PORTION OF OR ALL OF YOUR DIGITAL ASSETS, AND THAT YOU AGREE TO INDEMNIFY AND HOLD US HARMLESS, AND WAIVE ANY CLAIMS AGAINST US TO THE MAXIMUM EXTENT ALLOWABLE BY LAW FOR FITNESS IN THE SECURITY OR OPERATION OF OUR SERVICES WHETHER PERCEIVED, ANTICIPATED OR EXPECTED. YOU FURTHER ACKNOWLEDGE AND ACCEPT THAT, WITHOUT LIMITING THE FOREGOING, AN INDEPENDENT TECHNOLOGY SECURITY AUDIT (AN “AUDIT”) IS AN EXPENSIVE UNDERTAKING, AND THAT UNLESS IT HAS BEEN EXPRESSLY STATED BY US THAT AN AUDIT HAS BEEN COMPLETED, YOU ARE TO PRESUME THAT NO SUCH WORK HAS BEEN DONE, IRRESPECTIVE OF THE EXISTENCE OF ANY PLANS OR STATEMENTS BY US OR OUR REPRESENTATIVES THAT WE INTEND TO OR WOULD LIKE TO PEFORM AND COMPLETE AN AUDIT OR AUDITS.
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YOU AGREE THAT ANY STATEMENTS OR REPRESENTATIONS MADE BY US OR OUR REPRESENTATIVES ON OR THROUGH ANY PLATFORM, CHANNEL OR MEDIUM, INCLUDING WITHOUT LIMITATION ANY SOCIAL MEDIA PLATFORM OR CHANNEL, WHETHER MADE PUBLICLY OR PRIVATELY, SAVE FOR THIS AGREEMENT, THE >> Privacy Policy AND/OR OTHER DOCUMENTS PUBLISHED ON THE SITE EXPRESSLY INDICATED THEREIN AS TO BE BINDING (TO THE EXTENT SUCH OTHER DOCUMENTS ARE PUBLISHED ON THE SITE) ARE OF A DESCRIPTIVE NATURE ONLY AND ARE NOT INTENDED TO BE BINDING IN ANY WAY UNLESS EXPRESSLY STATED AS SUCH (THE "NON-BINDING MARKETING MATERIAL"). TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, YOU AGREE TO INDEMNIFY US, HOLD US HARMLESS AND WAIVE ANY CLAIMS AGAINST US FOR ANY NON-BINDING MARKETING MATERIAL ASSOCIATED WITH, IN CONNECTION WITH, OR THAT LEADS TO OR HAS LED TO YOUR USE OF THE SITE OR SERVICES. FOR FURTHER CLARITY, YOU AGREE THAT, TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, YOU ARE SOLELY RESPONSIBLE FOR ANY RISK AND THEREFORE ANY LOSSES OR DAMAGES ASSOCIATED WITH OR IN CONNECTION WITH YOUR USE OF THE SITE OR SERVICES REGARDLESS OF ANY NON BINDING STATEMENTS OR REPRESENTATIONS MADE BY US OR OUR REPRESENTATIVES.
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YOU FURTHER ACKNOWLEDGE AND ACCEPT THAT ANY OR ALL OF OUR PERSONNEL (KEY OR OTHERWISE), EMPLOYEES (KEY OR OTHERWISE), ADVISORS (KEY OR OTHERWISE) AND/OR AFFILIATES MAY CHANGE, EXIT OR OTHERWISE DISASSOCIATE OR BECOME DISASSOCIATED FROM US AT ANY TIME AND THAT YOU AGREE TO INDEMNIFY US, HOLD US HARMLESS AND WAIVE ANY CLAIMS AGAINST US IN THE EVENT OF ANY CHANGES WITH RESPECT TO ANY PERSONNEL, EMPLOYEES, ADVISORS AND/OR AFFILIATES.
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OUR SERVICES RELY ON EMERGING TECHNOLOGIES, SUCH AS ETHEREUM AND/OR OTHER BLOCKCHAINS. SOME SERVICES ARE SUBJECT TO INCREASED RISK THROUGH YOUR POTENTIAL MISUSE OF THINGS SUCH AS PUBLIC/PRIVATE KEY CRYPTOGRAPHY, OR FAILING TO PROPERLY UPDATE OR RUN SOFTWARE TO ACCOMMODATE PROTOCOL UPGRADES, LIKE A MATERIAL CHANGE IN A BLOCKCHAIN PROTOCOL. BY USING THE SERVICES YOU EXPLICITLY ACKNOWLEDGE AND ACCEPT THESE HEIGHTENED RISKS. YOU REPRESENT THAT YOU ARE FINANCIALLY AND TECHNICALLY SOPHISTICATED ENOUGH TO UNDERSTAND THE INHERENT RISKS ASSOCIATED WITH USING CRYPTOGRAPHIC AND BLOCKCHAIN-BASED SYSTEMS AND UPGRADING YOUR SOFTWARE AND PROCESSES TO ACCOMMODATE SERVICES AND PROTOCOL UPGRADES, AND THAT YOU HAVE A WORKING KNOWLEDGE OF THE USAGE AND INTRICACIES OF DIGITAL ASSETS SUCH AS ETHER (ETH) AND OTHERS. IN PARTICULAR, YOU UNDERSTAND THAT WE DO NOT OPERATE THE ETHEREUM PROTOCOL OR ANY OTHER BLOCKCHAIN PROTOCOL, OR COMMUNICATE OR EXECUTE PROTOCOL UPGRADES. YOU FURTHER UNDERSTAND THAT BLOCKCHAIN PROTOCOLS PRESENT THEIR OWN RISKS OF USE, THAT SUPPORTING OR PARTICIPATING IN THE PROTOCOL MAY RESULT IN LOSSES IF YOUR PARTICIPATION VIOLATES CERTAIN PROTOCOL RULES, THAT BLOCKCHAIN-BASED TRANSACTIONS ARE IRREVERSIBLE, THAT WE WILL NOT STORE A BACKUP OF, NOR WILL WE BE ABLE TO DISCOVER OR RECOVER, YOUR SECURITY KEYS, THAT DIGITALLY COPYING AND STORING ANY OF YOUR SECURITY KEYS ON A CLOUD STORAGE SYSTEM OR OTHER THIRD PARTY SUPPORTED DATA STORAGE, INCLUDING YOUR PERSONAL DEVICE, MAY INCREASE THE RISK OF LOSS OR THEFT, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY APPROVALS OR PERMISSIONS YOU PROVIDE BY CRYPTOGRAPHICALLY SIGNING BLOCKCHAIN MESSAGES OR TRANSACTIONS OR ALLOWING SUCH MESSAGES OR TRANSACTIONS TO BE SIGNED ON YOUR BEHALF, ESPECIALLY THOSE RESPONDING TO SOLICITATIONS AND OTHER PROMPTS FROM THIRD PARTIES.
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YOU FURTHER UNDERSTAND AND ACCEPT THAT DIGITAL ASSETS PRESENT MARKET VOLATILITY RISK, TECHNICAL SOFTWARE RISKS, REGULATORY RISKS, AND CYBERSECURITY RISKS. YOU UNDERSTAND THAT THE COST AND SPEED OF A BLOCKCHAIN-BASED SYSTEM IS VARIABLE, THAT COSTS MAY INCREASE DRAMATICALLY AT ANY TIME, AND THAT COST AND SPEED IS NOT WITHIN THE CAPABILITY OF AcloudBank LABS TO CONTROL. YOU UNDERSTAND THAT PROTOCOL UPGRADES MAY INADVERTENTLY CONTAIN BUGS OR SECURITY VULNERABILITIES THAT MAY RESULT IN LOSS OF FUNCTIONALITY AND ULTIMATELY FUNDS OR VALUE.
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YOU UNDERSTAND AND ACCEPT THAT AcloudBank LABS DOES NOT CONTROL ANY BLOCKCHAIN PROTOCOL, NOR DOES AcloudBank LABS CONTROL ANY SMART CONTRACT THAT IS NOT OTHERWISE OFFERED BY US AS PART OF THE SERVICES AND IS NOT ITSELF A THIRD PARTY SERVICE. YOU UNDERSTAND AND ACCEPT THAT AcloudBank LABS DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR THE TRANSITION OF ANY BLOCKCHAIN PROTOCOL FROM OR TO ANY CONSENSUS OR THE FUNCTIONING OF ANY PROTOCOL AFTER IT UNDERGOES A TECHNICAL UPGRADE. YOU UNDERSTAND AND ACCEPT THAT AcloudBank LABS DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR ANY THIRD PARTY SERVICE. YOU AGREE THAT YOU ALONE, AND NOT AcloudBank LABS, ARE RESPONSIBLE FOR ANY TRANSACTIONS THAT YOU ENGAGE IN WITH REGARD TO SUPPORTING ANY BLOCKCHAIN PROTOCOL WHETHER THROUGH TRANSACTION VALIDATION OR OTHERWISE, OR ANY TRANSACTIONS THAT YOU ENGAGE IN WITH ANY THIRD-PARTY-DEVELOPED SMART CONTRACT OR TOKEN, INCLUDING TOKENS THAT WERE CREATED BY A THIRD PARTY FOR THE PURPOSE OF FRAUDULENTLY MISREPRESENTING AFFILIATION WITH ANY BLOCKCHAIN PROJECT. YOU AGREE THAT AcloudBank LABS IS NOT RESPONSIBLE FOR THE REGULATORY STATUS OR TREATMENT IN ANY JURISDICTION OF ANY DIGITAL ASSETS THAT YOU MAY ACCESS OR TRANSACT WITH USING OUR SERVICES. YOU EXPRESSLY ASSUME FULL RESPONSIBILITY FOR ALL OF THE RISKS OF ACCESSING AND USING THE SERVICES TO INTERACT WITH BLOCKCHAIN PROTOCOLS.
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This Agreement is not intended to, and does not, create or impose any fiduciary duties on us. To the fullest extent permitted by law, you acknowledge and agree that we owe no fiduciary duties or liabilities to you or any other party, and that to the extent any such duties or liabilities may exist at law or in equity, those duties and liabilities are hereby irrevocably disclaimed, waived, and eliminated. You further agree that the only duties and obligations that we owe you are those set out expressly in this Agreement.
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IF YOU ARE A NEW JERSEY RESIDENT, the provisions of this section are intended to apply only to the extent permitted under New Jersey law.
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The foregoing limitations of damages, liability and no warranty provisions set forth above in this section are fundamental elements of the basis of the bargain between AcloudBank Labs and you.
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3To the maximum extent allowable under law, you agree that any and all applicable indemnification protections, harmlessness protections and/or any waiver of claims, demands and/or damages in this Agreement that apply to AcloudBank Labs shall extend to and apply to The Labs, including without limitation in the event that any legal framework in any relevant jurisdiction determines that laws and/or regulations involving securities apply to your use of the Site or Services. You further agree that the Arbitration Agreement in Appendix 1 shall also apply to The Labs to maximum extent allowable by law.
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25. Entire Agreement. This Agreement, including any Appendix or Appendices and the >> Privacy Policy incorporated by reference herein comprise the entire understanding and agreement between you and AcloudBank Labs as to the subject matter hereof, and supersedes any and all prior discussions, agreements and understandings of any kind (including without limitation any prior versions of this Agreement), between you and AcloudBank Labs.
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26. Section Headings. Section headings in this Agreement are for convenience or reference only and shall not govern the meaning or interpretation of any provision of this Agreement.
27. Assignment. We reserve the right to assign our rights without restriction, including without limitation to any of our affiliates or subsidiaries, or to any successor in interest of any business associated with the Services. In the event that AcloudBank Labs is acquired by or merged with a third party entity, we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or other change of control. You may not assign any rights and/or licenses granted under this Agreement without our prior written consent. Any attempted transfer or assignment by you in violation hereof shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
28. DAOs. We may interact with and provide certain Services to decentralized autonomous organizations, or to a group or groups that may be seen or considered as such a kind of organization, whether formally or informally (a “DAO”). Due to the unique nature of DAOs, to the extent the DAO votes in favor of or does not reject or accepts such Services from AcloudBank Labs, the DAO has acknowledged and agreed to the terms of this Agreement in its entirety.
29. Severability. If any provision of this Agreement shall be determined to be invalid or unenforceable under any rule, law, or regulation of any local, state, country-wide or federal government agency in any jurisdiction globally, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the validity or enforceability of any other provision of this Agreement shall not be affected.
30. Survival. All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, including, without limitation, sections pertaining to suspension or termination of Services, debts owed to us, general use of the Site, disputes with AcloudBank Labs, and general provisions, shall survive the termination or expiration of this Agreement.
31. Governing Law. You agree that this Agreement and any Dispute, without regard to principles of conflict of laws, shall be governed by, except to the extent governed by US federal law, the laws of the state within the United States where our principal business is located; and that if our business is located in more than one state, and in the event there is any confusion over what constitutes principal business or a location, the determination of the state within the United States in which our principal business is located shall be at our sole discretion (the “State Location”). You also agree that there is no requirement to determine the State Location unless and until a formal action is filed.
32. Force Majeure. We shall not be liable for delays, failure in performance or interruption of service which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to, significant market volatility, act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, pandemic, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
33. Non-Waiver of Rights. This Agreement shall not be construed to waive rights that cannot be waived under applicable laws. In addition, our failure to insist upon or enforce strict performance by you of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of our right to assert or rely upon any such provision or right in that or any other instance.
34. Independent Contractors; Non-Exclusive Rights. The parties (us and you) are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
35. Eligibility. If you are under the age of 18, you may use the Site or Services only with the consent of or under the supervision of your parent or legal guardian.
NOTICE TO PARENTS AND GUARDIANS: By granting your minor permission to access the Site or Services, you agree to the terms in this User Agreement on behalf of your minor. You are responsible for exercising supervision over your minor’s online activities. If you do not agree to the terms in this User Agreement, do not let your minor use the Site or Services.
36. Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict. Words signifying the singular include the plural and vice versa. Words which are gender neutral or gender specific include all genders.
37. Notice.
(a) To You. We may provide any notice to you under this Agreement using commercially reasonable means, including: (i) posting a notice on the Site; (ii) sending a message to an email address to the extent our Services require or request an email address associated with your use of the Services; (iii) posting the notice in the interface of the applicable Service; or (iv) using public communication channels. Notices we provide by posting on the Site or using public communication channels will be effective upon posting, and notices we provide by email will be effective when we send the email to the extent such communication is practicable and of our choosing. It is your responsibility to keep your email address current to the extent our Services require or request an email address associated with your use of the Services. You will be deemed to have received any email sent to the email address then associated with your use of the Services when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact us by email at [email protected].
38. Electronic Delivery of Communications. You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, "Communications") that we provide in connection with your use of the Services. Communications include:
Terms and policies you agree to (e.g., this Agreement and our Privacy Policy), including updates to these agreements or policies; Legal, regulatory, and tax disclosures or statements we may be required to make available to you; and Responses to claims or customer support inquiries filed in connection with your use of the Services. We will provide such Communications to you by posting them on the Site and/or through other electronic communication.
39. Hardware and Software Requirements. In order to access and retain electronic Communications, you will need the following computer hardware and software:
A device with an Internet connection; A current web browser that includes 128-bit encryption (e.g. Internet Explorer version 9.0 and above, Firefox version 3.6 and above, Chrome version 31.0 and above, or Safari 7.0 and above) with cookies enabled; Sufficient storage space to save past Communications or an installed printer to print them.
APPENDIX 1: ARBITRATION AGREEMENT1.1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and AcloudBank Labs agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services or of the Site, any Communications you receive, any products sold or distributed or made available through the Site, the Services, or the User Agreement and prior versions of the User Agreement, including claims and disputes that arose between us before the effective date of these terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and AcloudBank Labs may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or AcloudBank Labs may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the User Agreement as well as claims that may arise after the termination of this User Agreement.1.2. Waiver of Jury Trial. YOU AND AcloudBank LABS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and AcloudBank Labs are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
1.3. Waiver of Class and Other Non-Individualized Relief. YOU AND AcloudBank LABS AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 1.8, EITHER PARTY (YOU OR AcloudBank LABS) MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 1.8 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and AcloudBank Labs agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located within our State Location as defined in the User Agreement. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or AcloudBank Labs from participating in a class-wide settlement of claims.
1.4. Rules and Forum. The User Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If, by contacting us at [email protected], you inform us of a complaint involving a Dispute which does not resolve satisfactorily within forty-five (45) business days after receipt of your complaint, you and AcloudBank Labs agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). If you initiate the arbitration, you must provide AcloudBank Labs a copy of your Request by email at [email protected] or through our registered agent for service of process. The Request must include: (1) the name, telephone number, mailing address, email address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought, including an accurate, good faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying that you have informed us of a complaint involving a Dispute (if you are the party making the Request); and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and AcloudBank Labs otherwise agree, or the Batch Arbitration process discussed in subsection 1.8 is triggered, the arbitration will be conducted in a county of our choosing in our State Location. Disputes involving claims, counterclaims, or requests for relief under $25,000, not inclusive of attorneys’ fees and interest, will be conducted solely on the basis of documents you and AcloudBank Labs submit to the arbitrator. If your claim exceeds $25,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. In any case, you and AcloudBank Labs agree to not request more than three depositions per side in each arbitration or Batch Arbitration proceeding. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and AcloudBank Labs agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
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1.5. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State Location and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) business days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 1.8 is triggered, the AAA will appoint the arbitrator for each batch.
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1.6. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the Section entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the Section entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such Section entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied or failed to satisfy any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction. In any award of damages, the arbitrator shall abide by Section 24 with the section heading “Limitation of Liability; No Warranty; Risks” of this User Agreement.
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1.7. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or AcloudBank Labs need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
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1.8. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and AcloudBank Labs agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against AcloudBank Labs by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
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All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid jointly and equally by you and us to the extent such joint and equal payment is allowable under AAA rules and the law, otherwise the Administrative Arbitrator’s fees shall be paid by us.
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You and AcloudBank Labs agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
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This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
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1.9. Modification. Notwithstanding any provision in this User Agreement to the contrary, if we make any future material change to this Arbitration Agreement, such change shall be made by posting on the Site. It is your responsibility to check the Site regularly for modifications to the Arbitration Agreement. Your continued use of the Site and/or Services, including without limitation the acceptance of products and services offered on or through the Site following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes.
California Residents are not permitted to participate in
the Token offering, and there are restrictions in place to
prevent such an occurance. However, California Civil Code
1798.115(c), 1798.130(a)(5)(c), 1798.130(c), and 1798.140
indicate that organizations should disclose whether certain
categories of information are “sold” or
transferred for an organization’s “business
purpose” as those terms are defined under California
law. You can find a list of the categories of information
that we share in the “California Information Sharing
Disclosure” section below. Please note that because
this list is comprehensive it may refer to types of
information that we share about people other than yourself.
If you would like more information concerning the categories
of personal information (if any) we share with third parties
or affiliates for those parties to use for direct marketing
please submit a written request to us using the information
in the "How to contact us" section below.
California Information Sharing Disclosure
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