Terms of Service
Last Revised on December 19, 2023
Welcome to the Terms of Service (these “Terms”) for our website-hosted user interface located at https://increment.finance/ (the “Interface”), in each case, operated by or on behalf Layken Limited (“Company”, “we” or “us”). The Interface, the Increment Governance Forum available at https://discourse.increment.finance/ (the “Governance Forum”), and any content, tools, documentation, features and functionality offered on or through the Interface are collectively referred to as the “Services”. These Terms are entered into between you (acting on your own behalf, the “Individual User”) and on behalf of the firm on whose behalf you are acting (the “Firm”, and together with the Individual User, “you”) and the Company. If you act as an employee or agent of a legal entity, and enter into these Terms on their behalf, you represent and warrant that you have all the necessary rights and authorizations to bind such legal entity.
These Terms govern your access to and use of the Services. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.
The Protocol is Not Part of the Services: The Increment protocol (whether the mainnet or testnet version) is an open source protocol that enables on-chain perpetual swaps (the “Protocol”), as further described in the documentation available at https://docs.increment.finance/increment/ (“Documentation”). The Interface is a web application and user interface that displays data and provides certain tools and functionality to facilitate a user’s access to the Protocol. The Interface is part of our Services. However, the Protocol, including its underlying smart contracts, and any other blockchain protocol or smart contracts that the Protocol interacts with are not part of the Services. There may be other ways to engage with the Protocol other than by using the Interface or other Services. Other developers may in the future create their own interfaces to function with the Protocol. We do not control all activity and data on the Protocol itself, nor do we take possession, custody, or control over any digital assets on the Protocol (other than such assets that we hold or custody for ourselves or for third parties that have specifically authorized us to hold or custody such assets on their behalf, and that in each case are transacted in via the Protocol). You acknowledge and agree that you are not buying, selling or swapping digital assets from us and that we do not operate any liquidity pools on the Protocol or control trade execution on the Protocol, and transactions on the Protocol are peer-to-peer transactions and are executed directly between users of the Protocol, including when accessing the Protocol through the Services. You acknowledge and agree that we make no representations and warranties with respect to the Protocol. Your use of the Protocol is entirely at your own risk.
For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
SECTION 9 CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. BY AGREEING TO THESE TERMS, YOU AGREE (A) TO RESOLVE ALL DISPUTES (WITH LIMITED EXCEPTION) RELATED TO THE COMPANY’S SERVICES AND/OR PRODUCTS THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND (B) TO WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS, AS SET FORTH BELOW. YOU HAVE THE RIGHT TO OPT-OUT OF THE ARBITRATION CLAUSE AND THE CLASS ACTION WAIVER AS EXPLAINED IN SECTION 9 .
Table of Contents
GENERAL
WHO MAY USE THE SERVICES
LOCATION OF OUR PRIVACY POLICY AND OTHER POLICIES
RIGHTS WE GRANT YOU
OWNERSHIP AND CONTENT
THIRD PARTY SERVICES AND MATERIALS
DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION
ARBITRATION AND CLASS ACTION WAIVER
ADDITIONAL PROVISIONS
1. GENERAL
1.1 Wallets. To use certain of the Services, you will need to connect a compatible third-party digital wallet (“Wallet”) with the Services. By using a Wallet in connection with the Services, you agree that you are using the Wallet under the terms and conditions of the applicable third-party provider of such Wallet. Wallets are not associated with, maintained by, supported by or affiliated with the Company. You acknowledge and agree that we are not party to any transactions conducted while accessing our Interface, and we do not have possession, custody or control over any digital assets appearing on the Services. When you interact with the Interface, you retain control over your digital assets at all times. We accept no responsibility or liability to you in connection with your use of a Wallet, and we make no representations or warranties regarding how the Services will operate or be compatible with any specific Wallet. The private keys necessary to access the assets held in a Wallet are not held by the Company. The Company has no ability to help you access or recover your private keys and/or seed phrases for your Wallet. You are solely responsible for maintaining the confidentiality of your private keys and you are responsible for any transactions signed with your private keys.
1.2 Updates; Monitoring. We may make any improvement, modifications or updates to the Services, including but not limited to changes and updates to the underlying software, infrastructure, security protocols, technical configurations or service features (the “Updates”) from time to time. Your continued access and use of the Services are subject to such Updates and you shall accept any patches, system upgrades, bug fixes, feature modifications, or other maintenance work that arise out of such Updates. We are not liable for any failure by you to accept and use such Updates in the manner specified or required by us. Although the Company is not obligated to monitor access to or participation in the Services, it has the right to do so for the purpose of operating the Services, to ensure compliance with the Terms and to comply with applicable law or other legal requirements.
1.3 Fees and Taxes. Although the Company does not intend to charge any fees for the Services, we may elect to do so in the future. We will post any fees that we charge for the Services prominently on the Interface. In addition, there are certain fees and charges that are payable in connection with use of the Protocol, such as transaction or processing fees, liquidity provider fees, insurance fees, and blockchain gas or similar network fees. These fees are described on https://docs.increment.finance/developer-docs/perpetual-swaps/fees and https://docs.increment.finance/developer-docs/perpetual-swaps/insurance and may vary from time to time. We will disclose the amount of fees we will charge or pass through to you for the applicable Service at the time you initiate any action through the Services – however, additional fees will be charged by the Protocol and may not be determinable in advance. Although we will attempt to provide accurate fee information, any such information reflects our estimate of fees, which may vary from the fees actually paid to use the Services and interact with the Protocol. Additionally, your Wallet provider may impose a fee to transact using the Services. We are not responsible for any fees charged by a third party (including fees charged by the Protocol itself). All transactions processed through the Services are non-refundable. You will be responsible for paying any and all taxes, duties and assessments now or hereafter claimed or imposed by any governmental authority associated with your use of the Services.
2. WHO MAY USE THE SERVICES
2.1 Eligibility.
(a) You must be 18 years of age or older and not be a Prohibited Person to use the Services. A “Prohibited Person” is any person or entity that is (a) the subject of any economic or trade sanctions administered or enforced by any governmental authority, including being designated on any list of prohibited or restricted parties by any governmental authority, such as the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce Denied Persons List Entity List, the E.U. Consolidated List of persons and the U.K. Consolidated List of Financial Sanctions Targets, (b) located, a resident of or organized in a Restricted Territory, or (c) owned or controlled by such persons or entities listed in (a)-(b). “Restricted Territory” means the United States, Canada, any jurisdiction or territory that is the subject of comprehensive country-wide or regional economic sanctions or has been designated as “terrorist supporting” by the United Nations or the governmental authority of the European Union, United Kingdom or the United States, and any other jurisdiction in which accessing or using our protocol is prohibited. We reserve the right to choose markets and jurisdictions to conduct business and may restrict or refuse the access of Website and our Services in other countries or regions in our sole discretion.
(b) You may not use the Services if we have previously suspended you from use of the Services.
(c) You acknowledge and agree that you are solely responsible for complying with all applicable laws of the jurisdiction you are located or accessing the Services from in connection with your use of the Services. By using the Services, you represent and warrant that you meet these requirements and will not be using the Services for any illegal activity or to engage in the prohibited activities in Section 4.2.
2.2 Account. To use certain of the Services, such as the Governance Forum, you need to create an account or link another account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You are solely responsible for any activity on your Account and maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account.
2.3 Other Information. We may require you to provide additional information and documents regarding your use of the Services, including at the request of any competent authority or in case of application of any applicable law or regulation, including laws related to anti-money laundering or for counteracting financing of terrorism. We may also require you to provide additional information or documents in cases where we have reason to believe: (i) that your Wallet is being used for illegal money laundering or for any other illegal activity; or (ii) you have concealed or reported false identification information or other details. In addition to providing any required information, you agree to allow us to keep a record of that information during the period for which your account is active and within five (5) years after your account is closed. You also authorize us to share your submitted information and documentation to third parties to verify the authenticity of such information. We may also conduct necessary investigations directly or through a third party to verify your identity or protect you and/or us from financial crimes, such as fraud, and to take necessary action based on the results of such investigations. We will collect, use and share such information in accordance with our privacy policy.
If you provide any information to us, you must ensure that such information is true, complete, and timely updated when changed. If there are any grounds for believing that any of the information you provided is incorrect, false, outdated or incomplete, we reserve the right to send you a notice to demand correction, directly delete the relevant information, and as the case may be, terminate all or part of the Services we provide for you. You shall be fully liable for any loss or expense caused to us during your use of the Services. You hereby acknowledge and agree that you have the obligation to keep all the information accurate, update and correct at all times.
3. LOCATION OF OUR PRIVACY POLICY AND OTHER POLICIES
3.1 Privacy Policy. Our Privacy Policy describes how we handle the information you provide to us when you use the Services. For an explanation of our privacy practices, please visit our Privacy Policy located at https://docs.increment.finance/increment/legal/privacy-policy.
3.2 Governance Forum Community Guidelines. Our Governance Forum Community Guidelines available at https://discourse.increment.finance/t/faq-guidelines/5 describe our rules of behavior and engagement when you use the Governance Forum, which are intended to foster a positive and engaging community. All content that you upload or share to the Governance Forum must comply with the Governance Forum Community Guidelines.
3.3 Risks and Disclaimers. The Risks and Disclaimers available at https://docs.increment.finance/increment/legal/risks-and-disclaimers describe certain risks and other information you should know when using the Services and other blockchain technology, such as the Protocol. By agreeing to these Terms, you acknowledge that you have read and understood such Risks and Disclaimers.
4. RIGHTS WE GRANT YOU
4.1 Right to Use Services. We hereby permit you to use the Services for your internal use only, provided that you comply with these Terms in connection with all such use. If any software, content or other materials owned or controlled by us are distributed to you as part of your use of the Services, we hereby grant you a personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to access and display such software, content and materials provided to you as part of the Services, in each case for the sole purpose of enabling you to use the Services as permitted by these Terms. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that Company, in its sole discretion, may elect to take.
4.2 Restrictions On Your Use of the Services. You may not do any of the following in connection with your use of the Services:
(a) use the Services to transact with any Prohibited Person or in violation of any applicable law, including laws related to anti-money laundering and terrorist financing;
(b) use the Services for market manipulation (such as pump and dump schemes, wash trading, self-trading, front running, quote stuffing, and spoofing or layering, regardless of whether prohibited by law);
(c) download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services, except for temporary files that are automatically cached by your web browser for display purposes, or as otherwise expressly permitted in these Terms;
(d) duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same, except as expressly permitted by these Terms or applicable law;
(e) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
(f) use the Services to send advertisements, chain letters, or other solicitations, or to gather addresses or other personal data for commercial mailing lists or databases;
(g) use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;
(h) access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same;
(i) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services or the computer systems, wallets, accounts, protocols or networks connected to the Services;
(j) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services or the computer systems, wallets, accounts, protocols or networks connected to the Services, including through use of VPN software;
(k) use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
(l) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
(m) submit, transmit, display, perform, post or store any content that is inaccurate, unlawful, defamatory, obscene, lewd, lascivious, filthy, excessively violent, pornographic, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, harmful, hateful, cruel or insensitive, deceptive, or otherwise objectionable, use the Services for illegal, harassing, bullying, unethical or disruptive purposes, or otherwise use the Services in a manner that is obscene, lewd, lascivious, filthy, excessively violent, harassing, harmful, hateful, cruel or insensitive, deceptive, threatening, abusive, inflammatory, pornographic, inciting, organizing, promoting or facilitating violence or criminal or harmful activities, defamatory, obscene or otherwise objectionable; or
(n) access or use the Services in any way not expressly permitted by these Terms.
4.3 Interactions with Other Users on the Services. You are responsible for your interactions with other users on or through the Services. While we reserve the right to monitor interactions between users, we are not obligated to do so, and we cannot be held liable for your interactions with other users, or for any user’s actions or inactions. If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
5. OWNERSHIP AND CONTENT
5.1 Ownership of the Services. The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Company and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content, including, without limitation, the exclusive right to create derivative works.
5.2 Ownership of Trademarks. The Company’s name, trademarks and logos and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
5.3 Ownership of Feedback. We welcome feedback, bug reports, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
5.4 Your Content License Grant. In connection with your use of the Services, you may be able to post, upload, or submit content to be made available through the Services (“Your Content”), including on our Governance Forum. In order to operate the Service, we must obtain from you certain license rights in Your Content so that actions we take in operating the Service are not considered legal violations. Accordingly, by using the Service and uploading Your Content, you grant us a license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, and modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) Your Content but solely as required to be able to operate, improve and provide the Services. You agree that these rights and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable (for so long as Your Content is stored with us), and include a right for us to make Your Content available to, and pass these rights along to, others with whom we have contractual relationships related to the provision of the Services, solely for the purpose of providing such Services, and to otherwise permit access to or disclose Your Content to third parties if we determine such access is necessary to comply with our legal obligations. As part of the foregoing license grant you agree that the other users of the Services shall have the right to comment on and/or tag Your Content and/or to use, publish, display, modify or include a copy of Your Content as part of their own use of the Services; except that the foregoing shall not apply to any of Your Content that you post privately for non-public display on the Services. To the fullest extent permitted by applicable law, the Company reserves the right, and has absolute discretion, to remove, screen, edit, or delete any of Your Content at any time, for any reason, and without notice. By posting or submitting Your Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for Your Content. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.
5.5 Notice of Infringement – Copyright Policy
If you believe that any text, graphics, photos, audio, videos or other materials or works uploaded, downloaded or appearing on the Services have been copied in a way that constitutes copyright infringement under applicable copyright laws, including, to the extent applicable, the Digital Millennium Copyright Act, you may submit a notification to our copyright agent by providing the following information in writing:
(a) identification of the copyrighted work that is claimed to be infringed;
(b) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
(c) information for our copyright agent to contact you, such as an address, telephone number and e-mail address;
(d) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
(e) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
(f) the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
Notices of copyright infringement claims should be sent by by e-mail to contact@layken.xyz. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
6. THIRD PARTY SERVICES AND MATERIALS
6.1 Third Party Services and Materials. The Services may display, include or make available services, content, data, information, applications or materials from third parties (“Third-Party Services and Materials”) or provide links to certain third party websites. The Company does not endorse any Third-Party Services and Materials. You agree that your access and use of such Third-Party Services and Materials is governed solely by the terms and conditions of such Third-Party Services and Materials, as applicable. The Company is not responsible or liable for, and makes no representations as to any aspect of such Third-Party Services and Materials, including, without limitation, their content or the manner in which they handle, protect, manage or process data or any interaction between you and the provider of such Third-Party Services and Materials. The Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Services and Materials or websites. You irrevocably waive any claim against the Company with respect to such Third-Party Services and Materials. We are not liable for any damage or loss caused or alleged to be caused by or in connection with your enablement, access or use of any such Third-Party Services and Materials, or your reliance on the privacy practices, data security processes or other policies of such Third-Party Services and Materials. Third-Party Services and Materials and links to other websites are provided solely as a convenience to you.
7. DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION
7.1 Disclaimers.
(a) YOUR ACCESS TO AND USE OF THE SERVICES AND THE PROTOCOL ARE AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY, ITS PARENTS, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS AND LICENSORS (THE “COMPANY ENTITIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES RELATING TO TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, USAGE, QUALITY, PERFORMANCE, SUITABILITY OR FITNESS OF THE SERVICES AND THE PROTOCOL FOR ANY PARTICULAR PURPOSE, OR AS TO THE ACCURACY, QUALITY, SEQUENCE, RELIABILITY, WORKMANSHIP OR TECHNICAL CODING THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN WHETHER LATENT OR PATENT.
(b) The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services or the Protocol; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or the Protocol; (c) the operation or compatibility of the Services with any other application or any particular system or device, including any Wallets; (d) whether the Services or the Protocol will meet your requirements or be available on an uninterrupted, secure or error-free basis; (e) whether the Services or the Protocol will protect your assets from theft, hacking, cyber attack, or other form of loss caused by third party conduct; and (f) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Services.
(c) Nothing contained in the Services constitutes, or is meant to constitute, financial, legal or other professional advice of any kind. If you require advice in relation to any financial, legal or other professional matter you should consult an appropriate professional. No advice or information, whether oral or written, obtained from the Company Entities or through the Services, will create any warranty or representation not expressly made herein. We make no representation or warranty as to the merit, legality or characterization of any particular digital asset that may be available for trading on the Protocol, including whether or not such digital asset is considered a security or financial instrument under any applicable laws. Investing in digital assets is highly risky and may lead to a total loss of investment. You must have sufficient understanding of cryptographic tokens, token storage mechanisms (such as token wallets), and blockchain technology to appreciate the risks involved in dealing in digital assets. You understand and agree that the value of digital assets can be volatile, and we are not in any way responsible or liable for any losses you may incur by using or transferring digital assets in connection with our Services.
(d) There are certain multi-signature crypto wallets (the “MultiSigs”, and the signatories to such MultiSigs, the “MultiSig Committee Members”) that have certain controls related to the Protocol, that may include, but are not limited to, the ability to pause certain functionality of the Protocol, implement or influence upgrades to the Protocol (or any aspect thereof) and certain other controls of the functionality of the Protocol as described in the Documentation or in public communications made by us. Certain MultiSigs may be controlled by us or MultiSig Committee Members that are employed or engaged by us, and certain other MultiSigs will be controlled partially or entirely by MultiSig Committee Members that are unaffiliated third parties over which we have no or limited control. We will not be able to control the actions of such MultiSig Committee Members if they are not employed or engaged by us and thus certain MultiSigs will be outside of our control.
(e) THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN SECTION 7.2 BELOW. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
(f) THE COMPANY ENTITIES TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES.
(g) YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH THE COMPANY ENTITIES WILL BE RESPONSIBLE FOR.
7.2 Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES AND THE MULTISIG COMMITTEE MEMBERS BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING INDIRECT SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. THE COMPANY ENTITIES’ AND THE MULTISIG COMMITTEE MEMBERS’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE SERVICES (OR OFFERINGS PURCHASED ON THE SERVICES) GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7.3 Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Company Entities and MultiSig Committee Members harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your misuse of the Services; (d) your negligence or wilful misconduct; or (e) Your Content. If you are obligated to indemnify any Company Entity hereunder, then you agree that Company (or, at its discretion, the applicable Company Entity) will have the right, in its sole discretion, to control any action or proceeding and to determine whether Company wishes to settle, and if so, on what terms, and you agree to fully cooperate with Company in the defense or settlement of such claim. Your obligations under this indemnification provision will continue even after these Terms have expired or been terminated.
7.4 Third Party Beneficiaries. You and the Company acknowledge and agree that the Company Entities (other than the Company) and the MultiSig Committee Members are third party beneficiaries of these Terms, including under Sections 7 and 8.
8. ARBITRATION AND CLASS ACTION WAIVER
8.1 PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
8.2 Informal Process First. You and the Company agree that in the event of any dispute between you and the Company Entities or the MultiSig Committee Members, either party will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action, after first allowing the receiving party 30 days in which to respond. Both you and the Company agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.
8.3 Arbitration Agreement and Class Action Waiver. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to the Services, including the Interface, any use or access or lack of access thereto, and any other usage of the Protocol even if interacted with outside of the Services or Interface, will be resolved by arbitration, including threshold questions of arbitrability of the Claim. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered by the British Virgin Islands International Arbitration Centre (“BVIIAC”) under its BVIIAC Administered Arbitration Rules (the “BVIIAC Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the BVIIAC Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and the Company are each waiving the right to trial by jury or to participate in a class action or class arbitration.
8.4 Exceptions. Notwithstanding the foregoing, you and the Company agree that the following types of disputes will be resolved in a court of proper jurisdiction: (i) disputes or claims where the sole form of relief sought is injunctive relief (including public injunctive relief); or (ii) intellectual property disputes.
8.5 Costs of Arbitration. Payment of all filing, administration, and arbitrator costs and expenses will be governed by the BVIIAC Rules, except that if you demonstrate that any such costs and expenses owed by you under those rules would be prohibitively more expensive than a court proceeding, the Company will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to possible reimbursement as set forth below).
Fees and costs may be awarded as provided pursuant to applicable law. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose, then the payment of all fees will be governed by the BVIIAC Rules. In that case, you agree to reimburse the Company for all monies previously disbursed by it that are otherwise your obligation to pay under the applicable rules. If you prevail in the arbitration and are awarded an amount that is less than the last written settlement amount offered by the Company before the arbitrator was appointed, the Company will pay you the amount it offered in settlement. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
8.6 Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to contact@layken.xyz. The notice must be sent to the Company within thirty (30) days of your first registering to use the Services or agreeing to these Terms; otherwise you shall be bound to arbitrate disputes on a non-class basis in accordance with these Terms. If you opt out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. If you opt-out of these arbitration provisions, the Company also will not be bound by them.
8.7 WAIVER OF RIGHT TO BRING CLASS ACTION AND REPRESENTATIVE CLAIMS. To the fullest extent permitted by applicable law, you and the Company each agree that any proceeding to resolve any dispute, claim, or controversy will be brought and conducted ONLY IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY AND NOT AS PART OF ANY CLASS (OR PURPORTED CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR PROCEEDING (“CLASS ACTION”). You and the Company AGREE TO WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION. You and the Company EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN A CLASS ACTION IN ANY FORUM. If the dispute is subject to arbitration, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO COMBINE OR AGGREGATE CLAIMS, CONDUCT A CLASS ACTION, OR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. Further, you and the Company agree that the ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND IT MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS ACTION. For the avoidance of doubt, however, you can seek public injunctive relief to the extent authorized by law and consistent with the Exceptions clause above.
IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or consolidated or representative action must be brought in a court of proper jurisdiction and not in arbitration.
9. Additional Provisions
9.1 Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Interface. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms. No amendment shall apply to a dispute for which an arbitration has been initiated prior to the change in Terms.
9.2 Suspension; Termination. If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may, in its sole discretion, suspend or terminate your Account and/or access to or use of any of the Services, with or without notice, for any or no reason, including, without limitation, (i) if we believe, in our sole discretion, you have engaged in any of the prohibited activities set forth in Section 4.2; (ii) if you provide any incomplete, incorrect or false information to us; (iii) if you have breached any portion of these Terms; and/or (iv) if we determine such action is necessary to comply with these Terms, any of our policies, procedures or practices, or any law rule or regulation. If the Company deletes your Account or suspends or terminates your access to the Services, you are prohibited from using the Services under a different name or wallet address. In the event of Account deletion for any reason, the Company may, but is not obligated to, delete any of Your Content. the Company shall not be responsible for the failure to delete or deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.
9.3 Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
9.4 Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of our obligations under these Terms or in providing the Services, when and to the extent such failure or delay is caused by or results from any events beyond our ability to control, including acts of God; flood, fire, earthquake, epidemics, pandemics, tsunami, explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, government order, law, or action, embargoes or blockades, strikes, labor stoppages or slowdowns or other industrial disturbances, shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity, and other similar events beyond our control.
9.5 Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms are governed by the laws of the British Virgin Islands, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the courts located in the British Virgin Islands.
9.6 How to Contact Us. You may contact us regarding the Services or these Terms by e-mail at contact@layken.xyz.
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