TEST
NET IRIS WALLET TERMS OF USE
Effective
Date: October 24, 2022
IMPORTANT:
These Terms of Use (as amended from time to time, the “Terms”)
contain the terms and conditions that govern your use of the App and
is an agreement between you and Bitfinex
Labs Inc., a company with limited liability incorporated in the
British Virgin Islands, or any successor or assign (together with any
successors or assigns, “Bitfinex Labs” or “Labs” or “we”
or “our”) (each of you and Bitfinex Labs being a “Party” and
collectively the “Parties”).
Please read these Terms carefully before using the App. By using
the App, or clicking a button or checkbox to accept these Terms where
that option is made available, you accept and agree to these Terms
and any additional terms and conditions of use issued by Bitfinex
Labs from time to time. These Terms should be read in conjunction
with the Privacy
Policy. If
you do not agree to be bound by these Terms or with any subsequent
changes, you may not use the App, and if you do use the App, you will
be bound by these Terms. Your only recourse in the case of your
unwillingness to continue to be bound by these Terms is to stop using
the App.
THE
APP OPERATES ON THE RGB TEST NET PROTOCOL AND TEST NET BITCOIN
BLOCKCHAIN.
THE
APP IS AN EXPERIMENTAL DIGITAL ASSET WALLET APPLICATION FOR THE
EXPERIMENTAL SOFTWARE PROTOCOL, RGB TEST NET PROTOCOL AND THE TEST
NET BITCOIN BLOCKCHAIN. THE APP AND RGB TEST NET PROTOCOL ARE SUBJECT
TO FAILURE AND MAY CONTAIN DEFECTS. YOUR TRANSACTIONS USING THE APP
MAY NOT BE SECURE AND MAY NOT BE PROCESSED AS YOU INTEND.
ALL
USE OF THE APP IS AT YOUR OWN RISK. YOU SHOULD NOT USE THE APP TO
SEND OR RECEIVE TEST NET BTC OR RGB TEST NET TOKENS THAT YOU ARE NOT
PREPARED TO LOSE ENTIRELY.
BY
CLICKING ON THE “ACCEPT” BUTTON OR USING THE APP, YOU REPRESENT
THAT (I) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE
TERMS; (II) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH
BITFINEX LABS; AND (III) YOU HAVE THE CAPACITY OR AUTHORITY TO ENTER
INTO THE TERMS. PLEASE SEE SECTION 2 FOR DEFINITIONS OF CERTAIN
CAPITALIZED TERMS USED IN THESE TERMS.
In
addition, you represent to us that you are not subject to Economic
Sanctions or otherwise designated on any Sanctions List.
PLEASE
REVIEW THE ARBITRATION PROVISION SET FORTH BELOW CAREFULLY, AS IT
WILL REQUIRE ALL PERSONS TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS
THROUGH FINAL AND BINDING ARBITRATION AND TO WAIVE ANY RIGHT TO
PROCEED AS A REPRESENTATIVE OR CLASS MEMBER IN ANY CLASS OR
REPRESENTATIVE PROCEEDING. BY USING THE APP,
YOU
EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE
TERMS OF THIS PROVISION AND HAVE TAKEN TIME TO CONSIDER THE
CONSEQUENCES OF THIS IMPORTANT DECISION.
INTRODUCTION
These
Terms, together with the incorporated and referenced materials,
constitute the entire agreement and understanding between you and
Bitfinex Labs with respect to your use of the App.
These
Terms may be changed by Bitfinex Labs at any time and without prior
notice to you. The modified Terms will be effective at the time
they are posted and available through the App. You should check
back often on the App to confirm that your copy and understanding
of these Terms is current and correct. Your non-termination or
continued use of the App after the effective date of any changes
constitutes your acceptance of these Terms, as modified by such
changes. Your only recourse in the case of your unwillingness to
continue to be bound by these Terms is to stop using the App.
Use
of the App is void where such use is prohibited by Law, would
constitute a violation of, or would be subject to penalties under
applicable Laws, and shall not be the basis for the assertion or
recognition of any interest, right, remedy, power, or privilege.
DEFINITIONS
AND INTERPRETATION
In
these Terms, the following words have the following meanings,
unless otherwise indicated:
“App”
means the non-custodial mobile application Digital Asset wallet
software named Iris and any related Supported Asset Network
components managed by us and that you may access through the App;
“Associates”
means Bitfinex Labs and each and every one of its shareholders,
subsidiaries, any subsidiaries of its shareholders, liquidity
providers, directors, officers, affiliates, employees,
contractors, licensors, agents, partners, insurers, and attorneys;
“Digital
Asset”
means any digital asset which is a digital representation of value
based on (or built on top of) a cryptographic protocol of a
computer network, including the RGB Test Net Protocol.
“Economic
Sanctions”
means
financial sanctions, trade embargoes, export or import controls,
anti-boycott, and restrictive trade measures enacted,
administered, enforced, or penalized by any Laws;
“Government”
means any national, federal, state, municipal, local, or foreign
branch of government, including any department, agency,
subdivision, bureau, commission, court, tribunal, arbitral body,
or other governmental, government appointed, or quasi-governmental
authority or component exercising executive, legislative,
juridical, regulatory, or administrative powers, authority, or
functions of or pertaining to a government instrumentality,
including any parasternal company, or state-owned (majority or
greater) or controlled business enterprise;
“Government
Approval”
means any authorization, license, permit, consent, approval,
franchise, concession, lease, ruling, certification, exemption,
exception, filing or waiver by or with any Government necessary to
conduct the business of either Party or the execution of any
Wallet Asset Transfer (defined below) or any transaction entered
into under these Terms;
“Government
Official”
means an officer or employee of any Government, a director,
officer, or employee of any instrumentality of any Government, a
candidate for public office, a political party or political party
official, an officer or employee of a public international
organization, and any Person who is acting in an official capacity
for any of the foregoing, even if such Person is acting in that
capacity temporarily and without compensation;
“Law”
means all laws, statutes, orders, regulations, rules, treaties,
and/or official obligations or requirements enacted, promulgated,
issued, ratified, enforced, or administered by any Government that
apply to you, Bitfinex Labs, your Receivers, or the App;
“Losses”
means,
collectively, any claim, application, loss, injury, delay,
accident, cost, business interruption costs, or any other expenses
(including attorneys’ fees or the costs of any claim or suit),
including any incidental, direct, indirect, general, special,
punitive, exemplary, or consequential damages, loss of goodwill or
business profits, work stoppage, data loss, computer failure or
malfunction, or any and all other commercial losses;
“Person”
includes
an individual, association, partnership, corporation, company,
other body corporate, trust, estate, and any form of organization,
group, or entity (whether or not having separate legal
personality);
“Prohibited
Jurisdiction”
means any jurisdiction
subject to a comprehensive embargo by the United States, the
British Virgin Islands or the United Nations, which comprise as of
the effective date, Iran, the Democratic People's Republic of
Korea (“North Korea”), Cuba, Syria, Crimea (a region of
Ukraine annexed by the Russian Federation), the self-proclaimed
Donetsk People's Republic (a region of Ukraine) and the
self-proclaimed Luhansk People's Republic (a region of Ukraine),
including Governmental Authorities of those jurisdictions;
“Prohibited
Person”
means any the Government of Venezuela; any resident of, or
Government or Government Official of, any Prohibited Jurisdiction;
and any Sanctioned Person;
“RGB
Test Net Protocol”
means the open-source software protocol implementing a smart
contracts system that uses client-side validation and operates on
top of the test net Bitcoin blockchain as a Layer 2 solution, a
version of which is utilized by the App.
“Receiver”
means the receiver of Digital Assets through the App.
“Sanctions
List”
means the “Specially Designated Nationals and Blocked Persons”
(‘SDN’) List and the Non-SDN List, including the “Sectoral
Sanctions Identifications List”, published by the Office of
Foreign Assets Control of the U.S. Department of the Treasury; the
Section 311 Special Measures for Jurisdictions, Financial
Institutions, or International Transactions of Primary Money
Laundering Concern published by the Financial Crimes Enforcement
Network of the U.S. Department of the Treasury; and, any other
foreign terrorist organization or other sanctioned, restricted, or
debarred party list published by the Financial Investigation
Authority of the British Virgin Islands;
“Sanctioned
Person”
refers to any Person or test net Bitcoin blockchain address that
is: (i) specifically listed in any Sanctions List; (ii) directly
or indirectly owned 50 percent or more by any Person or group of
Persons in the aggregate or test net Bitcoin blockchain address
associated with such Person or Persons that is included in any
Sanctions List, (iii) the Government or any Government Official of
any Prohibited Jurisdiction; or (v) whose dealings with Bitfinex
Labs and/or the User is subject to any Government Approval or
otherwise sanctioned, restricted, or penalized under applicable
law.
“Sender”
means a User who sends Digital Assets through the App;
“Supported
Assets”
means, as of the effective date, Test Net BTC and Digital Assets
created through the RGB Test Net Protocol.
“Supported
Asset Networks”
means, as of the effective date, the test net Bitcoin blockchain
and the RGB Test Net Protocol.
“Test
Net BTC”
means test net Bitcoin held on-chain, on the test net Bitcoin
blockchain;
“User”
means any user of the App.
“UTXO”
means unspent transaction output.
“Wallet
Address”
means the alphanumeric identifier that represents a means for
holding, storing and transferring
Digital Assets, on the test net Bitcoin blockchain or RGB Test Net
Protocol.
Extended
Meanings.
Unless otherwise specified in these Terms, words importing the
singular include the plural and vice versa and words importing
gender include all genders. The word “include,” “includes”
or “including” will be interpreted on an inclusive basis and be
deemed to be followed by the words “without limitation.”
APP
User
Requirements
Users
of the App must: (i) not be Prohibited Persons; (ii) not utilise
the App to facilitate any Prohibited Uses; and (iii) assure any
Receiver is not a Prohibited Person.
You
may use the App solely in accordance with these Terms. You shall
not take any steps to circumvent, avoid, bypass or obviate,
directly or indirectly, the intent of these Terms.
Your
use of the App allows you to (i) store Supported Assets; (ii) view
information that are part of a Supported Asset Network; (iii)
process Wallet Asset Transfers; (iv) a dispenser for Test Net BTC;
and (v) additional functionality as Bitfinex Labs may add to the
App from time to time.
You
own and control Supported Assets held in your App. As the owner
of Supported Assets in your App, you bear all risk of loss of such
Supported Assets. Bitfinex Labs shall have no liability for
Digital Asset fluctuations or loss associated with your use of the
App. At any time, subject to outages, downtime, and other
applicable policies, you may withdraw your Supported Assets by
sending them to another Wallet Address utilizing the applicable
Supported Assets Network.
Limitations
of App
We
may permanently or temporarily terminate or suspend your license
to the App without notice and liability for any reason, including
if in our sole determination you violate any provision of these
Terms, or for no reason. Upon any termination, (i) all rights
and/or licenses granted to you under these Terms shall immediately
cease and terminate and you shall forthwith cease the use of the
App in any way whatsoever; and (ii) notwithstanding the foregoing,
you will continue to be bound by these Terms.
The
App is intended solely for proper use of Supported Assets. Under
no circumstances should you attempt to use your App to store,
send, request, or receive any assets other than Supported Assets.
To
use the App you must have a mobile device that is compatible with
the App. Bitfinex Labs does not warrant that the App will be
compatible with your mobile device. You may use mobile data in
connection with the App and may incur additional charges from your
wireless provider for these services. You agree that you are
solely responsible for any such charges.
Google
Play Store App.
The following applies to the App you acquire from the Google Play
Store (“Google-Sourced
Software”):
(i) you acknowledge that these Terms are between you and Bitfinex
Labs only, and not with Google, Inc. (“Google”);
(ii) your use of Google-Sourced Software must comply with Google’s
then-current Google Play Store Terms of Service; (iii) Google is
only a provider of the Google Play Store where you obtained the
Google-Sourced Software; (iv) Bitfinex Labs, and not Google, is
solely responsible for its Google-Sourced Software; (v) Google has
no obligation or liability to you with respect to Google-Sourced
Software or these Terms; and (vi) you acknowledge and agree that
Google is a third-party beneficiary to these Terms as it relates to
Bitfinex Labs’ Google-Sourced Software.
Digital
Asset Transfers
Your
App enables you to send Supported Assets to, and receive Supported
Assets from, other Waller Addresses, including Wallet Addresses
controlled by third parties. Your transfer of Supported Assets
between other Wallet Addresses you control and to and from Wallet
Addresses controlled by third parties is a “Wallet
Asset Transfer”.
Use
of the RGB Test Net Protocol requires that the User maintain a
UTXO in the Wallet Address associated with the App. It is
therefore necessary to transfer Test Net BTC into the App before
conducting any Wallet Asset Transactions. We recommend Users only
Wallet Asset Transfer a small amount of Test Net BTC into the App
at any time.
Once
a Wallet Asset Transfer is submitted to a Supported Asset Network,
the transaction will be unconfirmed and remain in a pending state
for a period of time sufficient to allow confirmation of the
transaction by the Supported Asset Network. A Wallet Asset
Transfer is not complete while it is in a pending state. Pending
Wallet Asset Transfers that are initiated from the App will
reflect a pending transaction status and are not available to you
for use in the App or otherwise while the transaction is pending.
When
you or a third party sends Digital Assets to the App from another
Wallet Address (“Wallet
Inbound Transfers”),
the person initiating the transaction is solely responsible for
executing the transaction properly, which includes ensuring that
the Digital Asset being sent is a Supported Asset.
When
you send Supported Assets from your App to an external Wallet
(“Wallet
Outbound Transfers”),
such transfers are executed at your instruction. You should verify
all transaction information prior to submitting instructions. We
do not guarantee the identity or value received by a Receiver of a
Wallet Asset Transfer. Wallet Asset Transfers cannot be reversed
once they have been broadcast to the relevant Supported Asset
Network, although they may be in a pending state, and designated
accordingly, while the transaction is processed by network
operators. You acknowledge and agree that you may be required to
pay network or miner’s fees in order for a Wallet Outbound
Transfer transaction to be successful. Insufficient network fees
may cause a Wallet Outbound Transfer to remain in a pending state
outside of Bitfinex Labs’ control, and Bitfinex Labs shall not
be responsible for delays or loss incurred as a result of an error
in the initiation of the transaction and have no obligation to
assist in the remediation of such transactions.
We
do not charge fees for the App we make available to you. There is
no assurance that gas or other fees will not be charged by the RGB
Test Net Protocol or any other Supported Asset Network.
Bitfinex
Labs does not control the Supported Asset Networks and makes no
guarantees that a Wallet Asset Transfer will be confirmed by a
Supported Asset Network. Bitfinex
Labs is not responsible for the availability or legitimacy of, the
content, products, assets, or services on or accessible from
Supported Asset Networks. Supported Asset Networks may provide
access to Digital Assets which have high risks of illiquidity,
devaluation, lockup, or loss.
RIGHTS
AND RESTRICTIONS
Subject
to the terms and conditions of these Terms, Bitfinex
Labs hereby grants you a non-exclusive, non-transferable, revocable
license to use a compiled code copy of the App and the Bitfinex
Labs Content on one mobile device owned or leased solely by you,
for your personal use. You may not: (i) rent, lease, loan, resell,
sublicense, distribute or otherwise transfer the App to any third
party or use the App to provide time sharing or similar services
for any third party; (ii) remove, circumvent, disable, damage or
otherwise interfere with security-related features of the App, or
features that enforce limitations on use of the App; or (iii)
delete the copyright and other proprietary rights notices on the
App. You acknowledge that Bitfinex Labs may from time-to-time issue
upgraded versions of the App and may automatically electronically
upgrade the version of the App that you are using on your mobile
device. You consent to such automatic upgrading on your mobile
device and agree that the terms and conditions of these Terms will
apply to all such upgrades. Any third-party code that may be
incorporated in the App is covered by the applicable open source or
third-party license end-user license, if any, authorizing use of
such code. The foregoing license grant is not a sale of the App or
any copy thereof, and Bitfinex Labs or its third-party partners or
suppliers retain all right, title, and interest in the App (and any
copy thereof). Any attempt by you to transfer any of the rights,
duties or obligations hereunder, except as expressly provided for
in these Terms, is void. Bitfinex Labs reserves all rights not
expressly granted under these Terms.
The
Supported Asset Networks and certain elements of the App are
offered under an open-source license. Open-source software
licenses constitute separate written agreements. To the limited
extent the open-source software license expressly supersedes these
Terms, the open-source license instead sets forth your agreement
with Bitfinex Labs for the applicable open-source software.
All
materials and content on the App (the “Bitfinex
Labs Content”),
and all intellectual property rights related thereto, are the
exclusive property of Bitfinex Labs and its licensors. Except as
explicitly provided herein, nothing in these Terms shall be deemed
to create a license in or under any such intellectual property
rights, and you agree not to appropriate, sell, license, rent,
modify, distribute, copy, reproduce, transmit, publicly display,
publicly perform, publish, adapt, reverse engineer edit or create
derivative works from any Bitfinex Labs Content. The Bitfinex Labs
Content is protected by copyright, trademark, trade secret and
other intellectual property or proprietary rights laws in various
jurisdictions. All rights not expressly granted to you in these
Terms are reserved by Bitfinex Labs or its licensor(s). Use of the
Bitfinex Labs Content for any purpose not expressly permitted by
these Terms is strictly prohibited.
PROHIBITED
USES
You
agree not to use the App to engage in any of the following prohibited
activities:
permit
the transmission of any Digital Assets through your App
from, to, or for the benefit of, any Prohibited Person or utilize
App
for the financial or other benefit of a Prohibited Person;
use
the App
in order to disguise the origin or nature of illicit proceeds of,
or to breach any Laws, or to transact or deal in, any contraband
assets, funds, property, or proceeds;
use
the App
if any applicable Laws prohibit, penalize, sanction, or expose
Bitfinex Labs to liability;
use
the App
to facilitate, approve, evade, avoid, or circumvent any applicable
Laws;
use
the App
to evade taxes under the Laws of any jurisdiction;
trade,
obtain financing or otherwise transact through the App,
with anything other than Digital Assets and Wallet Addresses that
have been legally obtained by you and that belong to you;
take
advantage of any technical glitch, malfunction, failure, delay,
default, or security breach;
subvert
any restrictions set out in these Terms; or
violate,
promote, cause a violation of, or conspire or attempt to violate
these Terms or applicable Laws.
Any
use as described in this Section shall constitute a “Prohibited
Use”.
If Bitfinex Labs determines or suspects that you have engaged in any
Prohibited Use, Bitfinex Labs may address such Prohibited Use through
an appropriate sanction, in its sole and absolute discretion. Such
sanction may include: (i) making a report to any Government, law
enforcement, or other authorities, without providing any notice of
you about any such report; or (ii) suspending or terminating your
license to the App. In
addition, should your actions or inaction result in Loss being
suffered by Bitfinex Labs or any of its Associates, you shall pay an
amount to Bitfinex Labs and the Associate so as to render Bitfinex
Labs and the Associate whole, including the amount of taxes or
penalties that might be imposed on Bitfinex Labs or the Associate.
YOUR
REPRESENTATIONS, WARRANTIES AND COVENANTS
You
represent and warrant to Bitfinex Labs on the date of your acceptance
or deemed acceptance of these Terms and each day on which you utilize
the App with reference to the facts and circumstances existing at
such date, as follows:
none
of you, your Receivers or any of your respective affiliates is: (i)
itself or owned (beneficially or of record) or controlled by one or
more Prohibited Person(s); (ii) involved in any transaction,
transfer, or conduct, whether or not by using the App, that is
likely to result in you, your Receivers or your respective
affiliates or your or their shareholders, directors, officers,
employees, agents, or partners becoming a Prohibited Person; (iii)
residing or domiciled in, or utilising the App from a Prohibited
Jurisdiction; (iv) a Government or Government Official of a
Prohibited Jurisdiction; or (v) otherwise a Prohibited Person;
none
of you, your Receivers or any of your respective affiliates is
acting for or on behalf of any Prohibited Person or will utilise
the App to make any Wallet Asset Transfers with Prohibited Persons;
none
of you, your Receivers or any of your respective affiliates is
otherwise prohibited by applicable Laws from using the App and your
use of the App will not contravene any Law applicable to you;
none
of you, your Receivers or any of your respective affiliates will
use the App to transfer funds which are the proceeds of conduct
that is illegal in any applicable jurisdiction, including the
British Virgin Islands, the jurisdiction in which you are located,
and the jurisdiction in which any Receiver is located;
the
App will not be used by any of you, your Receivers or any of your
respective affiliates to enable any Prohibited Uses;
if
you are an individual user, you are 18 years of age or older and
that you have the capacity to contract under applicable Laws;
if
you are using the App on behalf of a legal entity, (i) such legal
entity is duly organized and validly existing under the applicable
Laws of the jurisdiction of its organization; and (ii) you, and any
individuals utilizing the App on behalf of the legal entity are
duly authorized by such legal entity to act on its behalf;
you
understand the risks associated with using the App, including that:
(i) Bitfinex Labs does not provide or control any other Person such
as your Receivers; (ii) Bitfinex Labs does not provide or control
the test net Bitcoin blockchain or the RGB Test Net Protocol or any
other Person such as miners on the test net Bitcoin blockchain;
(iii) market
prices for Digital Assets can be volatile and highly unpredictable;
(iv) the legality of holding and transacting Digital Assets may not
be clear and may vary under the laws of different jurisdictions
throughout the world; (v) both the test net Bitcoin protocol and
the RGB Test Net Protocol may be subject to security breaches from
cyber-attacks that hack and steal your Digital Assets, or
electronic or technological failures that impede or prevent your
transfers or cause recordkeeping errors; and (vi) Persons may be or
become insolvent, bankrupt or default upon their obligations.
you,
your Receivers and your respective affiliates are currently in
compliance with, and will, at your own cost and expense, comply
with all Laws; and
none
of you, your Receivers and your respective affiliates have (i)
violated; (ii) been fined, debarred, sanctioned, the subject of
Economic Sanctions-related restrictions, or otherwise penalized
under; (iii) received any oral or written notice from any
Government concerning actual or possible violation by you under; or
(iv) received any other report that you are the subject or target
of sanctions, restrictions, penalties, or enforcement action or
investigation under, any applicable Laws.
NO
REPRESENTATION BY BITFINEX LABS
Bitfinex
Labs makes no representations, warranties, covenants or guarantees
to you of any kind and, to the extent permitted by applicable Laws,
Bitfinex Labs expressly disclaims all representations, warranties,
covenants or guarantees, express, implied or statutory, with
respect to the App. The App is offered strictly on an as-is,
where-is basis and, without limiting the generality of the
foregoing, is offered without any representation as to
merchantability or fitness for any particular purpose. You
understand that the App is experimental and may have features that
are still in development, may have bugs or errors, may be feature
incomplete, may materially change prior to a full commercial
launch, or may never be released commercially.
Without
limiting the generality of Section 7.1, Bitfinex Labs makes no
representations, warranties, covenants or guarantees to you in
respect of: (a) the
connectivity or uptime of the App; or the functionality of the RGB
Test Net Protocol or the test net Bitcoin blockchain (including any
technical glitch, malfunction, code error, failure, delay, default,
or security breach thereof).
TAX
It
is your sole responsibility to determine whether and to what extent
taxes and tax reporting obligations may apply to you (including any
goods and services tax) with respect to the transactions carried out
through the App and you shall timely pay all such taxes and shall
file all returns, reports, and disclosures required by applicable
Law. You agree to indemnify and hold Bitfinex Labs and its
Associates harmless from and against any and all taxes (other than
income or similar taxes on income earned by Bitfinex Labs in
providing the App) payable with respect to any transactions carried
out through the App.
NO
INSURANCE OR REGULATORY OVERSIGHT
You
accept that any Digital Assets and Wallet Transactions with your App
are not subject to regulatory oversight, protections or insurance
provided by any Person. In addition, whilst Bitfinex Labs may
maintain insurance for its own benefit in connection with its
business, the insurance, if maintained, is solely for the benefit of
Bitfinex Labs and does not guarantee or insure any User in any way.
WARRANTY
DISCLAIMERS
YOU
EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP IS AT YOUR SOLE
RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY,
PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. THE APP IS PROVIDED
ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT
ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR
STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
BITFINEX LABS SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED
WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND/OR NON-INFRINGEMENT. BITFINEX LABS DOES NOT MAKE ANY
REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE APP OR ANY DIGITAL
ASSETS WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE.
SERVICE INTERRUPTIONS MAY CAUSE YOU TO BE SIGNED OUT OF YOUR APP
AND REQUIRE YOU TO RE-ENTER YOUR RECOVERY PHRASE TO REGAIN ACCESS.
YOU
ARE SOLELY IN CONTROL OF AND RESPONSIBLE FOR STORING AND SECURING
YOUR PRIVATE KEY FOR THE APP. BITFINEX LABS DOES NOT STORE A
BACKUP OF, AND WILL NOT BE ABLE TO RECOVER, YOUR PRIVATE KEY. IF
YOU LOSE YOUR PRIVATE KEY, THEN YOU WILL LOSE ACCESS TO ALL
INFORMATION YOU HAVE STORED IN YOUR APP. YOU SHOULD ALWAYS BACKUP
YOUR APP’S PRIVATE ACCESS KEY VIA SECONDARY MEANS.
RESPONSIBILITIES,
LIMITATION OF LIABILITY AND INDEMNITY
Bitfinex
Labs is acting as technology provider only. You retain full
responsibility, and neither Bitfinex Labs nor any of its Associates
assumes
any
responsibility, for any Wallet Asset Transfers made through your
App.
Bitfinex Labs is not required to collate any information on any
Receiver. Bitfinex Labs is not responsible, and you retain full
responsibility, to ensure that any Wallet Asset Transfers are made
to the intended Receiver. Bitfinex Labs cannot reverse any
transfer.
To
the maximum extent permitted by applicable Law, you irrevocably
agree and acknowledge that neither Bitfinex Labs nor any of its
Associates assumes any liability or responsibility for and neither
Bitfinex Labs nor any of its Associates shall have any liability or
responsibility for any Losses directly or indirectly arising out of
or related to the App.
You
hereby agree to release Bitfinex Labs and its Associates from
liability for any and all such Losses, and you shall indemnify and
save and hold Bitfinex Labs and its Associates harmless from and
against all such Losses incurred by them as a result of your use of
the App in breach of these Terms, in violation of applicable Law, or
for any stolen, lost, or unauthorized use of any App credentials,
private keys, data or other information. To the maximum extent
permitted by applicable Law, the foregoing indemnity and limitations
of liability and releases shall apply whether the alleged liability
or Losses are based on contract, negligence, tort, unjust enrichment,
strict liability, violation of law or regulation, or any other basis,
even if Bitfinex Labs or any of its Associates have been advised of
or should have known of the possibility of such Losses and damages,
and without regard to the success or effectiveness of any other
remedies.
FORCE
MAJEURE
Bitfinex
Labs is not responsible for Losses caused by delay or failure of the
App, including when the delay or failure is due to fires; strikes;
floods; power outages or failures; acts of God or the state’s
enemies; disease pandemics; acts of any Government or Government
Official; any and all market movements, shifts, or volatility;
computer, server, protocol or internet malfunctions; security
breaches or cyberattacks; criminal acts; delays or defaults caused by
common carriers; acts or omissions of other Persons; or, any other
delays, defaults, failures or interruptions that cannot reasonably be
foreseen or provided against by Bitfinex Labs.
DISPUTE
RESOLUTION, ARBITRATION AGREEMENT, CLASS ACTION WAIVER, AND JURY
TRIAL WAIVER
Covered
Claims.
Except for excluded claims described below in Section 13.2,
Bitfinex Labs and you each agree that any dispute, claim or
controversy arising out of or relating to (i) these Terms or the
existence, breach, termination, enforcement, interpretation or
validity thereof; (ii) the App;
or (iii) your use of the App at any time (each, a “Claim”),
will be subject to and finally resolved by confidential, binding
arbitration and not in a class, representative or consolidated
action or proceeding. If you are a Person subject to the
jurisdiction of the United States of America, the interpretation
and enforceability of this arbitration provision will be governed
by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.
Arbitration will be conducted through the use of videoconferencing
technology (unless both arbitration parties agree that an in-person
hearing is appropriate given the nature of the dispute) before a
single arbitrator in accordance with the Rules of Arbitration of
the International Chamber of Commerce, as amended from time to time
(the “ICC
Rules”).
Judgment upon the award rendered by the arbitrator may be entered
by any court having jurisdiction thereof. If the arbitral parties
do not promptly agree on to seat of arbitration if an in-person
hearing is selected, the seat will be the British Virgin Islands.
The language of the arbitral proceedings will be English. The
arbitrator may award any relief that a court of competent
jurisdiction could award, including attorneys’ fees when
authorized by law, and the arbitral decision may be enforced in
court.
Excluded
Claims.
The following claims and causes of action will be excluded from
arbitration as described in Section 13.2: causes of action or
claims in which either Party seeks injunctive or other equitable
relief for the alleged un-Lawful use of the App or its confidential
information or private data. The Parties
shall be at liberty to pursue claims or causes of actions excluded
from arbitration through any court of competent jurisdiction.
Delegation.
The arbitrator will have the power to hear and determine challenges
to their jurisdiction, including any objections with respect to the
existence, scope or validity of the arbitration agreement. This
authority extends to jurisdictional challenges with respect to both
the subject matter of the dispute and the parties to the
arbitration. Further, the arbitrator will have the power to
determine the existence, validity, or scope of the contract of
which an arbitration clause forms a part. For the purposes of
challenges to the jurisdiction of the arbitrator, each clause
within this Section 13 will be considered as separable from any
contract of which it forms a part. Any challenges to the
jurisdiction of the arbitrator, except challenges based on the
award itself, will be made not later than the notice of defense or,
with respect to a counterclaim, the reply to the counterclaim;
provided,
however,
that if a claim or counterclaim is later added or amended such a
challenge may be made not later than the response to such claim or
counterclaim as provided under ICC Rules.
Class
Action Waiver.
You and Bitfinex Labs expressly intend and agree that: (i) class
action and representative action procedures are hereby waived and
will not be asserted, nor will they apply, in any arbitration
pursuant to these Terms; (ii) neither you nor Bitfinex Labs will
assert class action or representative action claims against the
other in arbitration or otherwise; (iii) each of you and Bitfinex
Labs will only submit their own, individual claims in arbitration
and will not seek to represent the interests of any other person,
or consolidate claims with any other person; (iv) nothing in these
Terms will be interpreted as your or Bitfinex Labs’ intent to
arbitrate Claims on a class or representative basis; and (v) any
relief awarded to any one user of the App cannot and may not affect
any other user of the App. No adjudicator may consolidate or join
more than one Person’s or Party’s claims and may not otherwise
preside over any form of a consolidated, representative, or class
proceeding.
Confidentiality.
You
and Bitfinex Labs and any other arbitration parties will maintain
the confidential nature of the arbitration proceeding and any
award, including the hearing, except as may be necessary to prepare
for or conduct the arbitration hearing on the merits, or except as
may be necessary in connection with a court application for a
preliminary remedy, a judicial challenge to an award or its
enforcement, or unless otherwise required by law or judicial
decision.
JURY
TRIAL WAIVER.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING OF ANY KIND WHATSOEVER
ARISING OUT OF OR RELATING TO THESE TERMS OR ANY BREACH THEREOF,
ANY USE OR ATTEMPTED USE OF THE APP BY YOU, AND/OR ANY OTHER MATTER
INVOLVING THE USER AND BITFINEX LABS.
MISCELLANEOUS
Governing
Law.
These
Terms shall be governed by and construed and enforced in accordance
with the Laws of the British Virgin Islands and shall be
interpreted in all respects as a British Virgin Islands contract.
Any transaction, dispute, controversy, claim or action arising from
or related to your use of the App or these Terms shall be governed
by the Laws of the British Virgin Islands, exclusive of
choice-of-law principles.
No
Waiver;
Available
Remedies.
Any failure by Bitfinex Labs to exercise any of its rights,
powers, or remedies under these Terms, or any delay by Bitfinex
Labs in doing so, does not constitute a waiver of any such right,
power, or remedy. The single or partial exercise of any right,
power, or remedy by Bitfinex Labs does not prevent either from
exercising any other rights, powers, or remedies. The remedies of
Bitfinex Labs are cumulative with and not exclusive of any other
remedy conferred by the provisions of these Terms, or by law or
equity. You agree that the remedies to which Bitfinex Labs is
entitled include (i) injunctions to prevent breaches of these Terms
and to enforce specifically the terms and provisions hereof, and
you waive the requirement of any posting of a bond in connection
with such remedies, and (ii) the right to recover the amount of any
Losses by set off against any amounts that Bitfinex Labs would
otherwise be obligated to pay to you.
Assignment;
Third
Party Rights.
These Terms, and any of the rights, duties, and obligations
contained or incorporated herein, are not assignable by you without
prior written consent of Bitfinex Labs and any attempt by you to
assign these Terms without Bitfinex Labs’ written consent is
void. These Terms, and any of the rights, duties, and obligations
contained herein, are freely assignable by Bitfinex Labs, in whole
or in part, without notice or your consent (for clarity, this
assignment right includes the right for Bitfinex Labs to assign any
claim, in whole or in part, arising hereunder). Any attempt by you
to assign these Terms without written consent is void. Subject to
the foregoing, these Terms, and any of the rights, duties, and
obligations contained or incorporated herein, shall be binding upon
and inure to the benefit of the heirs, executors, administrators,
personal or legal representatives, successors and assigns of you
and of Bitfinex Labs. None of the provisions of these Terms, or any
of the rights, duties, and obligations contained or incorporated
herein, are for the benefit of or enforceable by any creditors of
you or Bitfinex Labs or any other persons, except (i) such as inure
to a successor or assign in accordance herewith and (ii) that the
Associates of Bitfinex Labs are intended third party beneficiaries
of the rights and privileges expressly stated to apply to the
Associates hereunder and shall be entitled to enforce such rights
and privileges (including those rights and privileges set out in
Section 5 (Prohibited
Uses)
and Section 11 (Responsibilities,
Limitation of Liability and Indemnity))
as if a direct party to these Terms. No consent of any Person is
required for any modification or amendment to these Terms.
Severability.
If
any provision of these Terms or part thereof, as amended from time
to time, is determined to be invalid, void, or unenforceable, in
whole or in part, by any court of competent jurisdiction, such
invalidity, voidness, or unenforceability attaches only to such
provision to the extent of its illegality, unenforceability,
invalidity, or voidness, as may be, and everything else in these
Terms continues in full force and effect.
Electronic
Communications;
Acceptance.
You agree and consent to receive electronically all
communications, agreements, documents, receipts, notices and
disclosures that Bitfinex Labs may provide in connection with these
Terms through publication on any part of the App. Such notices
shall be deemed effective and received by you on the date on which
the notice is published on any part of the App. These Terms may be
accepted electronically, and it is the intention of the parties
that such acceptance shall be deemed to be as valid as an original
signature being applied to these Terms.