Terms of Service
Last Updated: October 27, 2018
Please read GDP Foundation LTD’s (“Company”, “we”, “us” or “our”) Terms of Service (the “Agreement”) carefully. This Agreement constitutes a binding obligation between you and Company. This Agreement applies to your use of: our websites located at http://login.mercurity.com/ (the “Site”), the products or services we may provide or offer, and your member account (collectively the “Services”).
Agreement to Terms.
By using our Services, you agree to be bound by this Agreement. If you do not agree to be bound by this Agreement, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. In that case, “you” and “your” will refer to that company or other legal entity.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THIS AGREEMENT YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND COMPANY THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 17 “DISPUTE RESOLUTION” FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
Changes to Terms or Services.
We may update this Agreement at any time, in our sole discretion. If we do so, we will deliver a notice either by posting the updated Agreement on the Site, or through other communications deemed appropriate by us. It is important that you review this Agreement whenever we update them or you use the Services. If you continue to use the Services after we have posted an updated Agreement, you are agreeing to be bound by the updated Agreement. If you do not agree to be bound by the updated Agreement, you must immediately stop using the Services. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services?
TO BE ELIGIBLE TO USE THE SERVICES, YOU MUST BE AT LEAST 18 YEARS OLD. YOU ACKNOWLEDGE AND AGREE THAT OUR SERVICES ARE NOT AVAILABLE TO COUNTRIES AND TERRITORIES THAT WE MAY DESIGNATE FROM TIME TO TIME. Such prohibited countries and territories are collectively referred to as the“Prohibited Jurisdictions”.YOU ACKNOWLEDGE THAT UNITED STATES IS A PROHIBITED JURISDICTION. The list of Prohibited Jurisdictions is subject to change at any time. In the event a state, province, territory or country becomes a Prohibited Jurisdiction, we will restrict access from users residing in that Prohibited Jurisdiction with or without notice. We reserve the right to block your access to the Services, cancel and/or suspend your Account and/or block transactions immediately and without notice if we determine, in our sole discretion, that you do not meet the eligibility requirements set forth in this Section.
Account and KYC/AML Verification.
(a) Need for an Account.
You must create an account (the “Account”; the holder of an Account, the “Account Holder”) to use the Services. You must provide all information required as part of the account opening process such as your email address.
(b) Identity Verification.
(c) Enhanced Due Diligence.
We may require you to submit additional information about yourself or your business, provide records, and arrange for meetings with our staff (“Enhanced Due Diligence”) if: (i) you want to use certain features of the Services; (ii) if you want to perform certain activities within the Services, such as engaging in transactions beyond certain limits; or (iii) deemed necessary by us in our sole discretion. We reserve the right to charge you costs and fees associated with Enhanced Due Diligence, provided that we notify you in advance of any such charges accruing. In our sole discretion, we may refuse to permit you to use such features of the Services conditioned on the completion of the Enhanced Due Diligence even if you have completed the Enhanced Due Diligence.
(d) Failure to Complete Verification Requirements.
We reserve the right to prohibit transactions from or to anyone who does not meet the verification procedures set forth in this Section 5. Without limiting the foregoing, we may prohibit transactions from or to anyone who: (i) fails to meet AML-CFT standards as set out by the Financial Action Task Force (“FATF”); (ii) is a Politically Exposed Person within the meaning of the FATF’s 40 Recommendations; or (iii) fails to meet any other due diligence standards, requests, or requirements (including the Enhanced Due Diligence).
Description of the Services.
As part of our Services, we provide a fiat-backed digital currency issuance platform (the “Platform”). The Platform provides an open infrastructure where you can issue digital representations of your fiat currency (the “Digital Currency”), and redeem your Digital Currency in return for fiat currency. The Platform is an online environment to issue Digital Currency using corresponding fiat currency (such as issuing USDD using US dollars and RMBD using RMB) and redeem Digital Currency in exchange for the fiat currency for which it represents (such as USDD for US dollars). Digital Currency is not money, legal tender, and is not monetary instruments. Once you obtain Digital Currency, you may keep it, redeem it for fiat currency, or use it in transactions with individuals or entities who agree to accept your Digital Currency, all in accordance with the terms and conditions of this Agreement.
(b) Digital Currency.
Digital Currency is a digital representation of the fiat currency used to create them at issuance. Subject to the terms of this Agreement, after successfully completing the verification procedures, eligible Account Holders can purchase and redeem Digital Currency through the Platform. Fiat currency payment for the issuance and redemption of Digital Currency will be handled through escrow accounts managed by third party trust companies (“Trust Companies”). The Platform will facilitate such purchases and redemptions.
(c) Issuance of Digital Currency.
After completing the required verification procedures, you may use the Services to issue supported Digital Currency by wiring fiat funds to the Trust Companies (in accordance with wire transfer and other payment instructions provided to you at the time of the purchase transaction). After receipt of your payment, we will issue and deliver the Digital Currency to an ERC-20 wallet address that you provided. We will make best efforts to fulfill all transactions, but in the rare circumstance where we cannot fulfill your order, we will notify you and refund you the purchase payment.
(d) Use of Digital Currency.
You may use Digital Currency in transactions with people or entities who agree to accept your Digital Currency on the Platform only. You acknowledge that the Company may impose certain requirements in respect of use of Digital Currency obtained through the Services, and transacting parties must meet all applicable requirements before they can conduct transactions using the Services. Such requirements may include completion of the verification procedures set forth in Section 5.
(e) Redemption of Digital Currency.
After completing the required verification procedures, you may use the Services to redeem your Digital Currency. You will initiate the process by sending the Digital Currency to a wallet address designated by us. Upon receipt of the Digital Currency, we will instruct the Trust Companies to transfer the corresponding fiat currency payment amount to your bank account. You agree that it is your sole responsibility to verify that your bank account information is accurate and that it is capable of receiving the corresponding fiat currency payment. We will make best efforts to fulfill all transactions, but in the circumstance where we cannot fulfill your redemption order (such as when your bank rejects the payment), we will notify you and transfer the Digital Currency back to you.
(f) Published API.
As part of the Services, we will provide access to published API (the “Published API”) for real-time token and fund information disclosure. Through the Published API, users can acquire information and demonstrate bank balance and token amounts for any Digital Currency issued through the Services, with reasonable prior notice to the issuer. For greater certainty, Published API forms part of the Content.
(g) Minimum Amount.
Purchase and redemption transactions may be subject to minimum transaction amount requirements. We reserve the right to prohibit any purchase or redemption transactions if the total amount in question does not meet the minimum amount requirements.
All transactions on the Platform are subject to fees as set out and updated in the fee schedule from time to time.
(i) Reasons to Refuse to Issue or Redeem Digital Currency.
We reserve the right to refuse to issue or redeem Digital Currency if we believe that you have engaged or will engage in any Prohibited Conduct. We also reserve the right to refuse to issue or redeem Digital Currency upon receipt of any subpoena, order, or request from any government, government official, or law enforcement authority of competent jurisdiction.
(j) Right to Prohibit Specific Digital Currency Wallet Addresses.
We reserve the right to prohibit specific digital currency wallet addresses from accessing the Platform, receiving Digital Currency, or transferring Digital Currency, in our sole discretion including if we are directed to do so by law enforcement or a court of competent jurisdiction. We may cooperate with law enforcement and regulatory authorities and may share information if there are reasonable grounds to believe that our Services are or will be used for any Prohibited Conduct.
(k) Access by Digital Currency Exchanges.
We reserve the right to prohibit any digital currency exchanges from accessing the Platform, receiving Digital Currency, or transferring Digital Currency if the exchange has not been preapproved by us or if we are directed to do so by law enforcement or a court of competent jurisdiction. We reserve the right to restrict or prohibit the listing or trading of Digital Currency on any exchange in our sole and absolute discretion.
Digital Currency Risks.
(i)GENERAL RISKS.YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. THE RISK OF LOSS IN TRADING OR HOLDING DIGITAL CURRENCY CAN BE IMMEDIATE AND SUBSTANTIAL. THERE IS NO GUARANTEE AGAINST LOSSES FROM USING THE SERVICES. YOU SHOULD THEREFORE CAREFULLY CONSIDER WHETHER PURCHASING, HOLDING OR USING DIGITAL CURRENCY IS SUITABLE FOR YOU IN LIGHT OF YOUR FINANCIAL CONDITION.
(ii)Market Risk.The market for digital currency is still new and uncertain. Despite being a digital representation of the underlying fiat currency, the market value for digital currency has been and is expected to continue to be subject to fluctuations. There is no guarantee of value of the Digital Currency, and the Digital Currency may lose all or substantially all of its value.
(iii)Legal Risk. The legal status of certain digital currency may be uncertain. This can mean that the legality of holding or trading them is not always clear. Whether and how a specific type of digital currency constitutes property, or assets, or rights of any kind is ambiguous and cannot be guaranteed. You are responsible for knowing and understanding how digital currency will be addressed, regulated, and taxed under applicable law.
(iv)Technical and Operational Risk. We may experience cyberattacks, surges in activity, or other operational or technical difficulties that may cause interruptions to the Services. Blockchain networks may go offline because of bugs, hard forks, or other unforeseeable reasons. Participants in any digital currency market should pay close attention to their position and holdings, and how they may be affected by sudden and adverse shifts in trading and other market or unforeseen activities. You agree to accept the risk of transaction failure resulting from any technical difficulties, including those resulting from malicious attacks from third parties.
(v)Forks.We do not own or control the underlying protocols which govern the operation of Digital Currency supported by our Services. By using the Services, you acknowledge and agree that (i) we are not responsible for operation of the underlying protocols and that we make no guarantee of their functionality, security, or availability; and (ii) the underlying protocols can be subject to sudden and unexpected changes, including total failures. In some cases, changes to the underlying protocol can create two separate versions of a digital currency's protocols (“Forks”). Such Forks may materially affect the value, function, and/or even the name of the Digital Currency. In the event of a Fork, you agree that we may suspend our operations (with or without advance notice to you), and that we may, in our sole discretion, decide whether or not to support (or cease supporting) any Fork. You acknowledge and agree that we assume no responsibility whatsoever: (i) in connection with our decision to support (including timing of its support), or cease supporting any Fork; and (ii) if you do not receive any digital currency created by an unsupported Fork (or a Fork supported by us in an untimely manner). IN NO EVENT SHALL THE COMPANY BE REQUIRED TO SUPPORT ANY FORK OR TAKE ACTIONS TO MAKE ANY DIGITAL CURRENCY AVAILABLE ON ANY FORKED PROTOCOL.
(vi)Services may Change. (i) We reserve the right to amend any aspect of the Services, in our sole discretion, without prior notice. This includes replacing the existing Digital Currency smart contract with a new smart contract or moving Digital Currency to a new blockchain. In the event that the smart contract is replaced or moved to a new blockchain, balances will be transferred and the old Digital Currency will not be valid for any purpose.
(b) No Advice.
We do not provide any investment or tax advice or consultation on the advisability of purchasing Digital Currency, the timing of a purchase or redemption, or any other matters regarding the purchase or redemption of Digital Currency, such as trading techniques, models, algorithms, or any other schemes.
Content Ownership, Responsibility and Removal.
For purposes of this Agreement, “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that you provide to be made available through the Services.
(b) Our Content Ownership.
Company does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Company and its licensors exclusively own all right, title and interest in and to the Content excluding any User Content, including all associated intellectual property rights. You acknowledge that the Services (which, for greater certainty, includes the Content and the provision of Content) are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content. Subject to the rights granted under Section 8(f), no right, title, or interest in or to the Services or any Content is transferred to you, and all rights not expressly granted are reserved by Company.
(c) Rights in User Content Granted by You.
By making any User Content available through the Services you hereby grant to Company a non-exclusive, irrevocable, perpetual, transferable, worldwide, royalty-free license, with the right to sublicense, to: (i) use, copy, modify, distribute, publicly display and publicly perform your User Content in connection with operating and providing the Services to you and to other users of the Services, including for general promotional purposes, in any form, format, media or media channels now known or later developed or discovered; and (ii); use the name, identity, likeness and voice (or other biographical information) that you submit in connection with such User Content. In the event that such User Content contain the name, identity, likeness and voice (or other biographical information) or intellectual property rights or proprietary rights of third parties, you represent and warrant that you have obtained the appropriate consents and/or licenses for your use of such information and that Company and its sub-licensees are allowed to use them to the extent indicated in this Agreement.
(d) Your Responsibility for User Content.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under this Agreement. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Company on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
(e) Removal of User Content.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services or outside of the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
(f) Rights in Content Granted by Company.
Subject to your compliance with this Agreement, Company grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, to, during the term of this Agreement, access and view the Content (excluding your User Content) solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
Terms for Published API.
(a) Subject to your compliance with this Agreement, Company grants you a limited, revocable, non-exclusive, non-transferrable license, with no right to sublicense, solely to use the Published API for purposes expressly permitted in Section 6(f). Except as expressly permitted in this Agreement, you may not: (i) copy, modify or create derivative works based on the Published API; (ii) distribute, transfer, sublicense, lease, lend or rent the Published API to any third party; (iii) reverse engineer, decompile or disassemble the Published API; or (iv) make the functionality of the Published API available to multiple users through any means. Company reserves all rights in and to the Published API not expressly granted to you under this Agreement.
General Prohibitions and Company’s Enforcement Rights.
You agree not to do any of the following (collectively, the “Prohibited Conduct”):
(a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
(b) Use, display, mirror or frame the Services or any individual element within the Services, Company’s name, any Company trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Company’s express written consent;
(c) Access, tamper with, or use non-public areas of the Services, Company’s computer systems, or the technical delivery systems of Company’s providers;
(d) Attempt to probe, scan or test the vulnerability of any Company system or network or breach any security or authentication measures;
(e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Company or any of Company’s providers or any other third party (including another user) to protect the Services or any Content;
(f) Attempt to access or search the Services or Content or download Content from the Services, through the use of any engine, software, tool, agent, device or mechanism (including spiders, bots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Company or other generally available third-party web browsers;
(g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(h) Use any meta tags or other hidden text or metadata utilizing a Company trademark, logo URL or product name without Company’s express written consent;
(i) Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by this Agreement;
(j) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
(k) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
(l) Interfere with, or attempt to interfere with, the access of any user, host or network, including sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
(m) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(n) Impersonate or misrepresent your affiliation with any person or entity;
(o) Any act can could expose Company to sanctions, restrictions, or penalties;
(p) Falsify or materially omit any information or provide misleading information in the course of, directly or indirectly relating to, or arising from your activities on the Platform or the use of any Services, including at Account registration;
(q) Perform any activity in any way that infringes upon the rights of others, or in any way is illegal, threatening, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity;
(r) Engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or which, as determined by us, may harm or offend Company or users of the Platform or expose them to liability;
(s) Use any funds or other value other than funds or value that have been legally obtained by you and that belong to you;
(t) Violate any applicable law, statutes, ordinances, orders or regulation; or
(u) Encourage or enable any other individual to do any of the foregoing.
Although we are not obligated to monitor access to or use of the Services, we have the right to do so for the purpose of operating the Services, to ensure compliance with this Agreement and to comply with applicable law or other legal requirements. We have the right to investigate violations of this Agreement or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources.
The Services (including the Site and the Content made available through the Services) may make available to you content provided by third parties, including links to third-party websites or resources (collectively, “Third Party Content”). We do not control, endorse or adopt any Third-Party Content and will have no responsibility for Third Party Content including material that may be misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. You acknowledge that we provide the Third Party Content to you only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You further acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources and all your interactions with such third-party websites or resources.
Cancellation, Suspension or Termination of Services.
(a) We may, in our sole discretion and without any cost or liability to you, with or without prior notice and at any time, suspend, modify or terminate, temporarily or permanently, all or any portion of our Services, and/or your Account, and/or your access to all or any portion of our Services, with or without reason, including for any of the following reasons:
- (i) our provision of the Services to you is no longer commercially viable;
- (ii) due to insolvency or bankruptcy; and
- (iii) if you breach any terms of this Agreement.
(b) Upon any cancellation, suspension or termination of the Services or your Account, the following Sections of this Agreement will survive: Sections 3, 7, 8, 10 to 18.
(c) If we terminate your Account or your access to the Services, to the extent not prohibited by any applicable law or regulation, we will use commercially reasonable efforts to provide you with notice of our actions and make the Digital Currency held in your Account available for redemption.
(a) We may require you to meet certain requirements for passwords and multi-factor authentication and we may change the requirements with or without prior notice. But, no matter how strong your password is, you must ensure that your Account credentials are secure. If they are not, people may compromise and take action on your Account. You should always use two-factor authentication when available, always avoid copying scripts into you browser address bar, and avoid clicking on links, opening attachments or visiting Internet resources you do not trust. You are responsible for maintaining adequate security and control of any and all IDs, passwords, hints, personal identification numbers (PINs), or any other codes that you use to access or in relation to the Services. We assume no responsibility for any losses resulting from the compromise of your Account.
(b) WE WILL USE REASONABLE EFFORTS TO VERIFY THE ACCURACY OF ANY INFORMATION PROVIDED BY THE SERVICES BUT WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE CONTENT, THE SERVICES, INFORMATION AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICES, ANY HYPERLINKS TO THIRD PARTY WEBSITES, OR THE SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE SERVICES.
(c) WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR AND WILL NOT BE LIABLE TO YOU FOR ANY USE OF OUR SERVICES, INCLUDING ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE; (C) UNAUTHORIZED ACCESS TO APPLICATIONS OR YOUR THIRD PARTY ACCOUNTS; OR (D) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING THE USE OF VIRUSES, PHISHING, BRUTE FORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICES.
(d) WE MAKE NO WARRANTY THAT THE SERVICES INCLUDING THE SERVER THAT MAKES THE SERVICES AVAILABLE, ARE FREE OF VIRUSES OR ERRORS, THAT THE CONTENT IS ACCURATE, THAT IT WILL BE UNINTERRUPTED, OR THAT DEFECTS WILL BE CORRECTED. WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS OF ANY KIND, FROM ACTION TAKEN, OR TAKEN IN RELIANCE ON MATERIAL, OR INFORMATION, CONTAINED OR MADE AVAILABLE THROUGH THE SERVICES.
(e) THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
(f) YOU ACCEPT AND ACKNOWLEDGE THAT THERE ARE RISKS ASSOCIATED WITH USING THE SERVICES, INCLUDING THE RISK DESCRIBED IN SECTION 7. YOU ACKNOWLEDGE AND ACCEPT THAT COMPANY WILL NOT BE RESPONSIBLE FOR ANY LOSS YOU INCURRED AS A RESULT OF SUCH RISKS.
You will indemnify and hold harmless Company and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services, (ii) your User Content, or (iii) your breach of this Agreement.
Limitation of Liability.
(a) NEITHER COMPANY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(b) IN NO EVENT WILL COMPANY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED ONE HUNDRED DOLLARS ($100).
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
Governing Law and Forum Choice.
This Agreement and any action related thereto (including all Disputes as defined below) will be governed by the law of the Federation of Saint Christopher and Nevis, without regard to its conflict of laws provisions.
(a) Arbitration. Company believes that most disagreements can be resolved informally and efficiently by contacting Company’s customer support. If the dispute is not resolved through Company customer support, you and Company agree that any such dispute, claim or controversy arising out of or relating in any way to the Services or this Agreement (each, a “Claim”), will be determined by binding arbitration in the Federation of Saint Christopher and Nevis, instead of in courts of general jurisdiction, in accordance with this Section 17.
(b) Class Action Waiver. YOU AND COMPANY 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.(a) Further, if you have elected arbitration, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section will be null and void. Any arbitrator of any Claim may award relief, including monetary, injunctive, and declaratory relief, only in favor of the party seeking relief, and only to the extent necessary to provide relief necessitated by that party’s Claim(s). Any relief awarded cannot affect other users of the Services.
(a) Entire Agreement.This Agreement constitutes the entire and exclusive understanding and agreement between Company and you regarding the Services, and this Agreement supersedes and replaces any and all prior oral or written understandings or agreements between Company and you regarding the Services. If any provision of this Agreement is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. You may not assign or transfer this Agreement, by operation of law or otherwise, without Company’s prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null. Company may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
(b) Notices. Any notices or other communications provided by Company under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
(c) Waiver of Rights. (a) Company’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Company. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
(d) Interpretation.(a) For purposes of this Agreement: (i) the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. The parties also agree that the normal rule of construction that an agreement will be interpreted against the drafting party does not apply to this Agreement.
If you have any questions about this Agreement or the Services, please contact Company at [email protected]