Terms Of Service
PLEASE FIND BELOW THE TERMS AND CONDITIONS GOVERNING THE BIT5 OFFERINGS, INCLUDING:
ACCESSING, DOWNLOADING OR USING ANY OF THE BIT5 APPS;
CREATING ANY COLLECTIBLE ON THE BIT5 APPS OR TRADING, BUYING, SELLING, TRANSFERRING OR RECEIVING ANY COLLECTIBLE THAT WAS CREATED ON A BIT5 APP;
USING, SENDING TOKENS TO, RECEIVING TOKENS FROM, SENDING MESSAGES TO OR OTHERWISE TRANSACTING WITH THE BIT5 SYSTEM;
USING, TRANSFERRING, VOTING, BUYING, SELLING OR RECEIVING THE N1 TOKEN
BIT5 IS A MARKETPLACE SOLUTION. WE ARE NOT A BROKER, FINANCIAL INSTITUTION, OR CREDITOR. THE SERVICES ARE AN ADMINISTRATIVE PLATFORM ONLY. BIT5 FACILITATES THE CREATIONS OF NFT STORES BUT IS NOT A PARTY TO ANY AGREEMENT BETWEEN THE BUYER AND SELLER OF CRYPTO ASSETS OR BETWEEN ANY USERS.
YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS YOU PURCHASE ON BIT5-POWERED STORES. NOTWITHSTANDING INDICATORS AND MESSAGES THAT SUGGEST VERIFICATION, BIT5 MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF BIT5-POWERED STORES.
These terms and conditions (these “Terms”) have been established by Bit5 to govern the Offerings. By engaging in or undertaking any of the aforementioned activities, you will be deemed to be a “User” who is legally bound by these Terms.
Please contact us with any questions or issues.
1. CERTAIN DEFINED TERMS AND RELATED INFORMATION
1.1. NFTs and Collectibles
“NFTs” means Ethereum-based tokens complying with the ERC-721 standard, ERC-1155 standard or other similar “non-fungible” token standard. NFTs are intended to be “non-fungible” tokens representing a unique Collectible; however, certain NFTs may be fungible with one another (i.e., all such NFTs are associated with the same Collectible Metadata) while being non-fungible with other NFTs (i.e., such NFTs are associated with different Collectible Metadata)
“Collectible” means the association on Ethereum of an NFT with a Uniform Resource Identifier (“URI”) identifying an appropriately configured JSON file conforming to the ERC-721 Metadata JSON Schema, ERC-1155 Metadata URI JSON Schema or a similar JSON schema, as applicable (such JSON file, the “Collectible ID”).
The Collectible ID of a Collectible specifies the properties of the Collectible, including the name and description of the Collectible (the “Collectible Descriptors”), a URI identifying any image file associated with the Collectible (the “Collectible Image”) and potentially other “metadata” associated with the Collectible (the Collectible Descriptors, Collectible Image and such other metadata, collectively, the “Collectible Metadata''). The Collectible Metadata for Collectibles created through the Bit5 Applications are typically stored on IPFS through an IPFS node operated by Bit5 owner. The Collectible Metadata for Collectibles created outside the Bit5 Applications may be stored in other ways, depending on how such Collectibles were created.
There can be no guarantee or assurance of the uniqueness, originality or quality of any Collectible or Collectible Metadata. In the absence of an express legal agreement between the creator of a Collectible and purchasers of the Collectible, there cannot be any guarantee or assurance that the purchase or holding of the Collectible confers any license to or ownership of the Collectible Metadata or other intellectual property associated with the Collectible or any other right or entitlement, notwithstanding that User may rightfully own or possess the NFT associated with the Collectible.
“Offerings” means the Bit5 Platform and all uses thereof, the Bit5 Apps, the Bit5 System, and the Bit5 Governance Module.
“N1” means the tokens with string constant public name “Bit5” and string constant public symbol “N1”, the supply and balances of which are tracked by the smart contract deployed on Ethereum. Each N1 entitles the holder to one vote per proposal.
“Bit5 Apps” means the consumer software applications created, operated and made publicly available for transactions involving Collectibles and the Bit5 System, other than the Bit5 System itself. On the date these Terms were first published, the Bit5 Apps consisted of the world wide web application (the “Bit5 Website”). In the future, Bit5 team may release one or more mobile applications (the “Bit5 Mobile Apps”).
“Bit5 System” means the bytecodes (aka “smart contracts”) for creating, buying, selling and transferring NFTs and Collectibles that are officially supported in the Bit5 Apps. On the date these Terms were first published, the Bit5 System comprised the bytecodes deployed to the BNB network
“Bit5 Governance Module” means the websites, forums, technologies and methods established from time to time by Bit5 owner for the coordination, voting and other official activities.
“Bit5 Platform” means the Bit5 Apps and Bit5 System
2. CERTAIN GENERAL TERMS
User Responsible for Accounts / Addresses. Users are responsible for all matters relating to their accounts (if any) on the Bit5 Apps or the blockchain accounts or addresses through which they interact with the Offerings, and for ensuring that all uses thereof comply fully with these Terms. Users are responsible for protecting the confidentiality of their login information and passwords (if applicable) for the Bit5 Apps or the private keys controlling the relevant blockchain accounts or addresses through which they interact with the Offerings.
Bit5 May Discontinue Offerings. Bit5 owner shall have the right at any time to change or discontinue any or all aspects or features of the Offerings.
Bit5 May Deny Access to or Use of the Offerings. Bit5 owner reserves the right to terminate a User’s access to or use of any or all of the Offerings at any time, without or without notice, for violation of these Terms or for any other reason, or based on the discretion of Bit5's owner company. Bit5 owner reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Bit5 owner's sole discretion. Collectibles or other materials uploaded to the Offerings may be subject to limitations on usage, reproduction and/or dissemination; Users are responsible for adhering to such limitations if you acquire a Collectible. Users must always use caution when giving out any personally identifiable information through any of the Offerings. Bit5's owner company does not control or endorse the content, messages or information found in any Offerings and Bit5's owner company specifically disclaims any liability with regard to the Offerings and any actions resulting from any User’s participation in any Offerings.
Monitoring. Bit5's owner company shall have the right, but not the obligation, to monitor the content of the Offerings, to determine compliance with this TOU and any operating rules established by Bit5's owner company and to satisfy any law, regulation or authorized government request. Bit5's owner company shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted through the Offerings. Without limiting the foregoing, Bit5's owner company shall have the right to remove any material that Bit5's owner company, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable
Copyright Notice. “Bit5” and its logos are trademarks of Bit5's owner company. All rights reserved. All other trademarks appearing in the Offerings are the property of their respective owners.
3. THE BIT5 SYSTEM AND BIT5 APPS
Nature of Bit5 System. The Bit5 System is a public software utility deployed on BSC, which is accessible directly through any Ethereum node or indirectly through any compatible Ethereum “wallet” application that interacts with such a node. Through the Bit5 System, any person may create, buy, sell and transfer Collectibles.
Relationship of Bit5 System and Bit5 Apps. Interacting with the Bit5 System does not require use of the Bit5 Apps, but the Bit5 Apps provide a potentially more convenient and user-friendly method of reading and displaying data (including Collectible Metadata) from the Bit5 System and generating standard transaction messages compatible with the Bit5 System. Interacting with the Bit5 System through the Bit5 Apps requires use of an independent, User-operated Ethereum wallet application through which the user may broadcast the transaction message to Ethereum for processing by Ethereum nodes. The Bit5 Apps may be used to generate standard transaction messages for interacting with the Bit5 System and transmitting those messages to the wallet application. Through the wallet application, a User may broadcast the transaction message to Ethereum for processing by Ethereum nodes. Assuming normal operation of the wallet and the relevant Ethereum nodes, the Ethereum nodes should utilize such transaction messages to make function calls against the relevant bytecode and ultimately include the results of such computations in an Ethereum transaction block, thus effectuating an interaction with the Bit5 System.
License to Use the Bit5 Platform. Each User, subject to and conditioned upon such User’s acceptance of and adherence to these Terms, is hereby granted a non-transferable, personal, non-sublicensable license to use the Bit5 System and Bit5 Apps for their intended purposes.
Alterations to Bit5 System. Bit5's owner company may from time to time alter the list of smart contracts which are included in Bit5 System by adding or removing bytecode addresses from the official list of smart contracts supported by the Bit5 Apps, including pursuant to upgrades, forks, security incident responses or chain migrations. In the event any bytecode is removed from the Bit5 System, users would no longer be able to interact with or read the data that is associated with such bytecode through the Bit5 Apps. It is intended (though cannot be guaranteed) that Users would continue to be able to interact with such bytecode directly through any Ethereum node or indirectly through any compatible Ethereum wallet application, but such interactions may require technical expertise beyond those of most Users.
Content. All content on the Bit5 Platform is created by Users. Bit5's owner company makes no representations or warranties as to the quality, origin, or ownership of any content found in the Offerings. Bit5's owner company shall not be liable for any errors, misrepresentations, or omissions in, of, and about, the content, nor for the availability of the content. Bit5's owner company shall not be liable for any losses, injuries, or damages from the purchase, inability to purchase, display, or use of content.
DMCA Notices for Claims of Copyright Infringement.
Takedown Requests. Bit5's owner company will respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. If a User or other person believes that their intellectual property rights have been infringed, please notify us immediately. For Bit5's owner company to respond, the complaint must provide the following information:
a physical or electronic signature of the copyright owner or of a person authorized to act on behalf of the copyright owner;
clear identification of the copyrighted work that is claimed to be infringing;
identification of the online material that is claimed to be infringing, including, if possible, a URL representing a link to the material on the Bit5 website;
information sufficient to permit Bit5's owner company to contact the complainant, such as email address, physical address, and/or telephone number;
a statement that the complainant has a good-faith belief that the relevant material is being used in a way that is not authorized by the copyright owner, its agent, or under the law; and
a statement, made under penalty of perjury, that the above information is accurate, and the complainant is the copyright owner or is authorized to act on behalf of the copyright owner.
Submission of Takedown Requests. Users may submit their takedown requests using the following contact information:
DMCA Counter-Notices. If a User believes that a User’s material has been removed by mistake or misidentification, the User may provide Bit5's owner company with a written counter-notification containing the following information:
the User’s name, address, telephone number, and email address;
a description of the material that was removed, along with the URL where the content was posted in the Offerings prior to its removal;
the following statement: “I swear, UNDER PENALTY OF PERJURY, that I have a good-faith belief that the material was removed or disabled due to a mistake or misidentification of the material to be removed or disabled”;
a statement that the User consents to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if the User’s address is outside of the United States, any jurisdiction in which the User may be properly served, and that the User will accept service of process from the person (or their agent) who filed the original DMCA notice; and
the User’s electronic or physical signature.
Upon receipt of a valid counter-notification, Bit5's owner company will forward it to the party who submitted the original DMCA notification. The original party (or their representative) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If Bit5's owner company does not receive any such notification within 10 days, Bit5's owner company may restore the material to the Offerings.
Repeat Infringers. Bit5's owner company reserves the right to terminate the accounts or block usage of the Offerings of any party who is a repeat infringer or who is repeatedly charged with infringement.
4. FEES, COMMISSIONS, ROYALTIES AND OTHER CHARGES
Fees. Creating, buying, selling or transferring Collectibles may be subject to fees, commissions, royalties and other charges (“Fees”) established from time to time in the sole discretion of Bit5's owner company a Collectible creator or participants in the ecosystem. On the date of the initial publication of these Terms, Fees include (a) service fees established by and payable to Bit5's owner company(b) commissions on secondary sales of Collectibles, established by and payable to the creators of such Collectibles; and (c) “gas” (fees paid to Ethereum miners in ETH through Users’ independent wallet applications as consideration for mining the Users’ transactions). Service fees may be adjusted from time to time at the sole discretion of Bit5's owner company. Commissions are set in the sole discretion of the Collectible creator and may range from 0% to 100%; in the event that a User acquires a Collectible with a 100% commission, the User will be unable to collect any proceeds of a sale of that Collectible on the Bit5 Platform. “Gas” fees are set by the User through the User’s independent Ethereum wallet application, based on the market conditions on Ethereum.
Forms of Payment. Fees may be paid or payable solely in the manner determined in the sole discretion of Bit5's owner company. On the date of the initial publication of these Terms, all Fees must be paid in ETH.
Finality; No Refunds. All transactions involving the Offering are final. All Fees relating are non-refundable except at the sole discretion of Bit5's owner company (for service fees and other fees within its control) or applicable third parties (Collectibles creators, Ethereum miners, etc.).
5. ACCEPTABLE & PROHIBITED USES OF THE OFFERINGS
Acceptable Uses. The Bit5 Platform and other Offerings are reserved exclusively for lawful consumer entertainment and artistic purposes (the “Permitted Uses”).
Prohibited Uses. Users must not, directly or indirectly:
employ any device, scheme or artifice to defraud, or otherwise materially mislead, Bit5's owner company, or any member of the Bit5 owner Community, including by impersonating or assuming any false identity;
engage in any act, practice or course of business that operates or would operate as a fraud or deceit upon the Bit5's owner company, or any member of the Bit5 Community;
use the Offerings by or on behalf of a competitor of the Bit5 owned Company or competing platform or service for the purpose of interfering with the Offerings to obtain a competitive advantage;
engage or attempt to engage in or assist any hack of or attack on the Bit5 Apps, Bit5 System, or any member of the Bit5 Community, theft of Collectibles, N1 or funds, or upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property or interfere with the Offerings
create, buy, sell or use any Collectible that infringes or in a manner infringing the copyright, trademark, patent, trade secret or other intellectual property or other proprietary rights of others, or upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws (including, copyright or trademark laws) or rights of privacy or publicity unless the applicable User owns or controls the rights thereto or has received all necessary consent to do the same;
commit any violation of applicable laws, rules or regulations;
use the Offerings in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming, or any duplicative or unsolicited messages (commercial or otherwise);
defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of other;
publish, post, distribute or disseminate any profane, obscene, pornographic indecent or unlawful content, pictures, topic, name, material or information;
engage in or knowingly facilitate any “front-running,” “wash trading,” “pump and dump trading,” “ramping,” “cornering” or fraudulent, deceptive or manipulative trading activities, including:
trading a Collectible at successively lower or higher prices for the purpose of creating or inducing a false, misleading or artificial appearance of activity in such Collectible, unduly or improperly influencing the market price for such Collectible or establishing a price which does not reflect the true state of the market in such Collectible;
for the purpose of creating or inducing a false or misleading appearance of activity in a Collectible or creating or inducing a false or misleading appearance with respect to the market in a Collectible:
executing or causing the execution of any transaction in a Collectible which involves no material change in the beneficial ownership thereof; or
entering any order for the purchase or sale of a Collectible with the knowledge that order of substantially the same size, and at substantially the same price, for the sale of such Collectible, has been or will be entered by or for the same or different parties; or
participating in, facilitating, assisting or knowingly transacting with any pool, syndicate or joint account organized for the purpose of unfairly or deceptively influencing the market price of a Collectible;
utilize the Offerings to transact in securities, commodities futures, trading of commodities on a leveraged, margined or financed basis, binary options (including prediction-market transactions), real estate or real estate leases, equipment leases, debt financings, equity financings or other similar transactions;
utilize the Offerings to buy, sell or advertise personal, professional or business services
utilize the Offerings to engage in token-based or other financings of a business, enterprise, venture, DAO, software development project or another initiative, including ICOs, DAICOs, IEOs, “yield farming” or other token-based fundraising events; or
utilize the Offerings primarily as general-purpose communication or messaging or social networking platform.
The foregoing matters are referred to herein as “Prohibited Uses”.
6. REPRESENTATIONS AND WARRANTIES OF N1 RECIPIENTS
Each User hereby represents and warrants to Bit5's owner company that the following statements and information are accurate and complete at all relevant times. In the event that any such statement or information becomes untrue as to a User, User shall immediately divest and cease using all N1 and cease accessing and using all other Offerings.
Status. If User is an individual, User is of legal age in the jurisdiction in which User resides (and in any event is older than thirteen years of age) and is of sound mind. If User is a business entity, User is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, and has all requisite power and authority for a business entity of its type to carry on its business as now conducted.
Power and Authority. User has all requisite capacity, power and authority to accept the terms and conditions of these Terms and to carry out and perform its obligations under these Terms. These Terms constitute a legal, valid and binding obligation of User enforceable against User in accordance with its terms.
No Conflict; Compliance with law. User agreeing to these Term and buying, selling holding, using or receiving N1 does not constitute, and would not reasonably be expected to result in (with or without notice, lapse of time, or both) a breach, default, contravention or violation of any law applicable to User, or contract or agreement to which User is a party or by which User is bound.
Absence of Sanctions. User is not, (and, if User is an entity, User is not owned or controlled by any other person who is), and is not acting on behalf of any other person who is, identified on any list of prohibited parties under any law or by any nation or government, state or other political subdivision thereof, any entity exercising legislative, judicial or administrative functions of or pertaining to the government such as the lists maintained by the United Nations Security Council, the U.S. government (including the U.S. Treasury Department’s Specially Designated Nationals list and Foreign Sanctions Evaders list), the European Union (EU) or its member states, and the government of a User home country. User is not, (and, if User is an entity, User is not owned or controlled by any other person who is), and is not acting on behalf of any other person who is, located, ordinarily, resident, organized, established, or domiciled in Cuba, Iran, North Korea, Sudan, Syria, the Crimea region (including Sevastopol) or any other country or jurisdiction against which the U.S. maintains economic sanctions or an arms embargo. The tokens or other funds a User use to participate in the Bit5 Platform or acquire Collectibles or N1 are not derived from and do not otherwise represent the proceeds of, any activities are done in violation or contravention of any law.
No Claim, Loan, Ownership Interest or Investment Purpose. User understands and agrees that the User’s purchase, sale, holding, receipt and use of N1 and the other Offerings does not:(a) represent or constitute a loan or a contribution of capital to, or other investment in Bit5's owner company or any business or venture; (b) provide User with any ownership interest, equity, security, or right to or interest in the assets, rights, properties, revenues or profits of, or voting rights whatsoever in, Bit5's owner company or any other business or venture; and (c) create or imply or entitle User to the benefits of any fiduciary or other agency relationship between Bit5's owner company or any of its directors, officers, employees, agents or affiliates, on the on hand, and User, on the other hand. User is not entering into these Terms or buying, selling, holding receiving or using N1 for the purpose of making an investment with respect to Bit5's owner company or its securities, but solely wishes to use the Bit5 Platform for its intended purposes and participate in the Bit5 DAO in order to participate in the protection and improvement of the use and enjoyment of the Bit5 Platform for such purposes. User understands and agrees that Bit5's owner company will not accept or take custody over any Collectibles, N1, cryptocurrencies or other assets of User and has no responsibility or control over the foregoing.
Non-Reliance. Users are knowledgeable, experienced and sophisticated in using and evaluating blockchain and related technologies and assets, including Ethereum, NFTs, Collectibles and “smart contracts” (bytecode deployed to Ethereum or another blockchain). User has conducted its own thorough independent investigation and analysis of the Bit5 Platform, N1 and the other matters contemplated by these Terms, and has not relied upon any information, statement, omission, representation or warranty, express or implied, written or oral, made by or on behalf of Bit5's owner company in connection therewith, except as expressly set forth by Bit5's owner company in these Terms.
7. RISKS, DISCLAIMERS AND LIMITATIONS OF LIABILITY.
- No Consequential, Incidental or Punitive Damages. Notwithstanding anything to the contrary contained in these Terms, Bit5's owner company shall not be liable to any person, whether in contract, tort (including pursuant to any cause of action alleging negligence), warranty or otherwise, for special, incidental, consequential, indirect, punitive or exemplary damages (including but not limited to lost data, lost profits or savings, loss of business or other economic loss) arising out of or related to these Terms, whether or not Bit5's owner company has been advised or knew of the possibility of such damages, and regardless of the nature of the cause of action or theory asserted.
- Limitation of Liability. Bit5's owner company’s liability for damages to each User shall in all cases be limited to, and under no circumstances shall exceed, Bit5's owner company’s service fees actually received by Bit5's owner company from such User.
- Disclaimer of Representations. The Offerings are being provided on an “AS IS” and “AS AVAILABLE” basis. To the fullest extent permitted by law, Bit5's owner company is not making, and hereby disclaims, any and all information, statements, omissions, representations and warranties, express or implied, written or oral, equitable, legal or statutory, in connection with the Offerings and the other matters contemplated by these Terms, including any representations or warranties of title, non-infringement, merchantability, usage, security, uptime, reliability, suitability or fitness for any particular purpose, workmanship or technical quality of any code or software used in or relating to the Offerings. User acknowledges and agrees that use of the Offerings is at the User’s own risk.
- No Responsibility for Collectibles; No Guarantee of Uniqueness or IP. Bit5's owner company has no responsibility for the Collectibles created or traded by Users on the Bit5 Platform. Bit5's owner company does not investigate and cannot guarantee or warrant the authenticity, originality, uniqueness, marketability, legality or value of any Collectible created or traded by Users on the Bit5 Platform.
- No Professional Advice or Liability. All information provided by or on behalf of Bit5's owner company is for informational purposes only and should not be construed as professional, accounting or legal advice. Users should not take or refrain from taking any action in reliance on any information contained in these Terms or provided by or on behalf of Bit5's owner company. Before Users make any financial, legal, or other decisions involving the Offerings, Users should seek independent professional advice from persons licensed and qualified in the area for which such advice would be appropriate.
- Limited Survival Period for Claims. Any claim or cause of action a User may have or acquire in connection with the Offerings or any of the other matters contemplated by these Terms shall survive for the shorter of, and maybe brought against Bit5's owner company solely prior to: (a) the expiration of the statute of limitations applicable thereto; and (b) the date that is six months after the date on which the facts and circumstances giving rise to such claim or cause of action first arose.
- Third-Party Offerings and Content. References, links or referrals to or connections with or reliance on third-party resources, products, services or content, including smart contracts developed or operated by third parties, may be provided to Users in connection with the Offerings. In addition, third parties may offer promotions related to the Offerings. Bit5's owner company does not endorse or assume any responsibility for any activities of or resources, products, services, content or promotions owned, controlled, operated or sponsored by third parties. If Users access any such resources, products, services or content or participate in any such promotions, Users do so solely at their own risk. Each User hereby expressly waives and releases Bit5's owner company from all liability arising from User’s use of any such resources, products, services or content or participation in any such promotions. User further acknowledges and agrees that Bit5's owner company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such resources, products, services, content or promotions from third parties.
- Store Content: We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any store. Please review carefully the store's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding store products should be directed to the store owners
- Certain Uses and Risks of Blockchain Technology.
- Legal Limitations on Disclaimers. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of certain liabilities and damages. Accordingly, some of the disclaimers and limitations set forth in these Terms may not apply in full to specific Users. The disclaimers and limitations of liability provided in these terms shall apply to the fullest extent permitted by applicable law.
- Officers, Directors, Etc. All provisions of these Terms which disclaim or limit obligations or liabilities of Bit5's owner company shall also apply, mutatis mutandis, to the officers, directors, members, employees, independent contractors, agents, stockholders, debtholders and affiliates of Bit5's owner company
- Indemnification. Each User shall defend, indemnify, compensate, reimburse and hold harmless Bit5's owner company (and each of its officers, directors, members, employees, agents and affiliates) from any claim, demand, action, damage, loss, cost or expense, including without limitation reasonable attorneys’ fees, arising out or relating to (a) User’s use of, or conduct in connection with, the Offerings; (b) User’s violation of these Terms or any other applicable policy or contract of Bit5's owner company; or (c) your violation of any rights of any other person or entity.
8. GOVERNING LAW; DISPUTE RESOLUTION.
- Governing law. These Terms shall be governed by and construed and interpreted in accordance with the laws of Panama irrespective of the choice of laws principles of Panama, as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies. Although the Offerings may be available in other jurisdictions, each User hereby acknowledges and agrees that such availability shall not be deemed to give rise to general or specific personal jurisdiction over Bit5's owner company
- Settlement Negotiations. If a User has a potential legal dispute, claim or cause of action against Bit5's owner company, the User shall first (prior to initiating any litigation proceedings) contact Bit5's owner company by sending an email to [email protected] describing the nature of the potential dispute, claim or cause of action and providing all relevant documentation and evidence thereof. If so elected by Bit5's owner company, User shall use commercially reasonable efforts to negotiate a settlement of any such legal dispute, claim or cause of action within 60 days of the delivery of such email. Any such dispute, claim or cause of action that is not finally resolved by a binding, written settlement agreement within such 60 days shall be brought and resolved exclusively.
- Agreement to Binding, Exclusive Arbitration.
- Arbitration Procedures. Bit5's owner company or any User may initiate an arbitration proceeding by delivering written notice to the other, whereupon the parties shall reasonably cooperate to select an arbitrator and submit the relevant Dispute to such arbitrator. In the event the parties are unable to agree on the selection of an arbitrator within 15 days from the filing of a demand for arbitration, the American Arbitration Association (the “AAA”) shall appoint the arbitrator. Any such arbitration shall be administered by the AAA in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer-related disputes of the AAA excluding any rules or procedures governing or permitting class Bit5's owner company will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and reasoned, and binding on the parties, and may be entered by any party as a judgment in any court of competent jurisdiction.
- Seat of Arbitration. The seat of arbitration shall be Wilmington, The arbitrator may choose to have the arbitration of any Dispute conducted by telephone, based on written submissions, or at a mutually agreed location; provided, however, that Bit5's owner company may opt to transfer the venue of any arbitration hearing to Wilmington, Delaware in the event that it agrees to pay any additional fees or costs a User may reasonably incur as a result of the change in venue, as determined by the arbitrator, and, subject to the foregoing, a User hereby agree to submit to the personal jurisdiction of any federal or state court in Wilmington, Delaware, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- Confidentiality of Arbitration. Except to the extent necessary to enforce their respective rights under these Terms or as otherwise required by applicable law, the parties undertake to maintain confidentiality as to the existence and events of the arbitration proceedings and as to all submissions, correspondence and evidence relating to the arbitration proceedings. This provision shall survive the termination of the arbitral proceedings.
- Classic Action Waiver
- Headings. The headings and captions contained in these Terms are for convenience of reference only, shall not be deemed to be a part of these Terms and shall not be referred to in connection with the construction or interpretation of these Terms.
- Successors and Assigns. These Terms shall inure to the benefit of Bit5's owner company, the Users, and their respective permitted successors permitted assigns, permitted transferees and permitted delegates and shall be binding upon all of the foregoing persons and any person who may otherwise succeed to any right, obligation or liability under these Terms by operation of law or otherwise. A User shall not share or provide a copy of, or transfer to, any person any N1 or the private key associated with any N1 without notifying such person that such person shall be bound by and become a party to these Terms by virtue of thereof (or if the transferor has a reasonable belief that the transferee is aware of these Terms). A User shall not assign any of a User rights or delegate any of a User liabilities or obligations under these Terms to any other person without Bit5's owner company’s advance written consent. Bit5's owner company may freely assign, transfer or delegate its rights, obligations and liabilities under these Terms to the maximum extent permitted by applicable law.
- Severability. In the event that any provision of these Terms, or the application of any such provision to any person or set of circumstances, shall be determined by an arbitrator or court of competent jurisdiction to be invalid, unlawful, void or unenforceable to any extent: (a) the remainder of these Terms, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law; and (b) Bit5's owner company shall have the right to modify these Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consumed as originally contemplated to the fullest extent possible.
- Force Majeure. Bit5's owner company shall not incur any liability or penalty for not performing any act or fulfilling any duty or obligation hereunder or in connection with the matters contemplated hereby by reason of any occurrence that is not within its control (including any provision of any present or future law or regulation or any act of any governmental authority, any act of God or war or terrorism, any epidemic or pandemic, or the unavailability, disruption or malfunction of the Internet, the World Wide Web or any other electronic network, the Ethereum network or blockchain or Bit5 System or any aspect thereof, or any consensus attack, or hack, or denial-of-service or other attack on the foregoing or any aspect thereof, or on the other software, networks and infrastructure that enables Bit5's owner company to provide the Offerings.), it being understood that Bit5's owner company shall use commercially reasonable efforts, consistent with accepted practices in the industries in which Bit5's owner company operates, as applicable, to resume performance as soon as reasonably practicable under the circumstances.
- Amendments and Modifications. These Terms may only be amended, modified, altered or supplemented by or with the written consent of Bit5's owner company. Bit5's owner company reserves, the right, in its sole and absolute discretion, to amend, modify, alter or supplement these Terms from time to time. The most current version of these Terms will be posted on Bit5's owner company’s website. Any changes or modifications will be effective immediately upon the modified Agreement being posted to Bit5's owner company’s website. A User shall be responsible for reviewing and becoming familiar with any such modifications. A User hereby waives any right a User may have to receive specific notice of such changes or modifications. Use of the Offerings by a User after any modification of these Terms constitutes a User acceptance of the modified terms and conditions. If a User do not agree to any such modifications, a User must immediately stop using the Offerings.
- No Implied Waivers. No failure or delay on the part of Bit5's owner company in the exercise of any power, right, privilege or remedy under these Terms shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. Bit5's owner company shall not be deemed to have waived any claim arising out of these Terms, or any power, right, privilege or remedy under these Terms, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of Bit5's owner company, and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
- Entire Agreement. These Terms constitute the entire agreement between the parties relating to the subject matter hereof and supersede all prior or contemporaneous agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.
- Rules of Interpretation. “hereof,” “herein,” “hereunder,” “hereby” and words of similar import will, unless otherwise stated, be construed to refer to these Terms as a whole and not to any particular provision of these Terms; “include(s)” and “including” shall be construed to be followed by the words “without limitation”; “or” shall be construed to be the “inclusive or” rather than “exclusive or” unless the context requires otherwise; any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of these Terms; section titles, captions and headings are for convenience of reference only and have no legal or contractual effect.; whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders; and except as otherwise indicated, all references in these Terms to “Sections,” “clauses,” etc., are intended to refer to Sections of Sections, clauses, etc. of these Terms.