These Terms of Service and any terms expressly incorporated herein (“Terms “) apply to any access to, or use of, any services made available by EverMarkets (“EverMarkets”) using the website www.emx.com, emx.co, evermarkets.com (the “Site”) or our mobile applications, and to any other related services provided by EverMarkets (collectively, the “Services”). By accessing or using any Services, you agree to be bound by these Terms.
1. THE ARBITRATION CLAUSE IN SECTION 18 GOVERNS RESOLUTION OF CERTAIN DISPUTES AND WAIVES ANY RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
EverMarkets may modify these Terms by providing notice of such changes, such as by sending you an email, providing notice through the Services, or updating the “Last Updated” date at the top of these Terms. Your continued use of the Services will confirm your acceptance of the modified Terms. If you do not agree to any modification to these Terms, you must stop using the Services. EverMarkets encourages you to frequently review the Terms to ensure you understand the terms and conditions that apply to your access to, and use of, the Services. If you have any question regarding the use of the Site or Services, please contact firstname.lastname@example.org.
2.1. General Requirements. The Services are intended solely for users who are 18 or older and who satisfy the criteria described in these Terms. You represent and warrant that you: (a) are of legal age to form a binding contract (at least 18 years old in the U.S.); (b) have not previously been suspended or removed from using our Services; (c) are not identified as a “Specially Designated National” by the Office of Foreign Assets Control; (d) are not placed on the U.S. Commerce Department’s Denied Persons List; and (e) have full power and authority to agree to these Terms.
2.2. Restricted Locations. You may not use the Services if you are located in, or a citizen or resident of, any jurisdiction: (a) where your use of the Services would be illegal or otherwise violate any applicable law; (b) that is a country to which any goods or services have been embargoed by the government of the United States; or (c) where EverMarkets has determined, at its discretion, to prohibit use of the Services (any of the foregoing, a “Restricted Location”). You represent and warrant that you are not a citizen or resident, or otherwise subject to the jurisdiction, of any Restricted Location. You also represent and warrant that you are not located in any Restricted Location while using any Services. EverMarkets includes the following jurisdictions as Restricted Locations: China, Cuba, Iran, Syria, and United States of America, which list may be modified or updated at any time at EverMarkets’ discretion. EverMarkets seeks to prevent use of the Services from within the jurisdictions on the published list, or by citizens or residents of those jurisdictions. You will comply with this Section 2.2, even if a Restricted Location is omitted from the list published by EverMarkets, and even if EverMarkets’ methods to prevent use of the Services are not effective or can be bypassed.
2.3. Enterprise User. Unless EverMarkets has provided prior, written approval to use your account for trading on behalf of a corporation or other legal entity (an “Enterprise User”), you will use the Services and your EverMarkets Account (as defined below) only for your own account and not on behalf of, or for the account of, any third party. If EverMarkets has approved your account for trading on behalf of an Enterprise User, you will use the Services and your EverMarkets Account solely for the account of the specified Enterprise User. If you use any Services on behalf of any Enterprise User, you agree to these Terms on behalf of yourself and any such Enterprise User, and you represent and warrant that you have the authority to bind the Enterprise User to these Terms and that both you and the Enterprise User will be jointly and severally liable under these Terms for any violation of these Terms or any other act or omission by the Enterprise User or by you.
3.2. EverMarkets Account. In order to use any Services, you must create and maintain an account through the Services (“EverMarkets Account”). To create or maintain your EverMarkets Account, or enable functions on your EverMarkets Account, you will be required to provide EverMarkets with certain information and documentation, including, as applicable, the information and documentation associated with identity verification and other screening procedures described in Section 3.3, below. You will: (a) create a unique password; (b) provide complete and accurate information; (c) promptly update any information you have provided so that the information is complete and accurate at all times; (d) maintain the security of your EverMarkets Account by protecting your password from unauthorized access or use; (e) promptly notify EverMarkets if you discover or suspect any unauthorized access or use of your EverMarkets Account or any security breaches related to your EverMarkets Account; and (f) be responsible for all activities that occur under your EverMarkets Account, and accept all risks of any authorized or unauthorized access to your EverMarkets Account.
3.3. Enhanced Security. EverMarkets may offer optional enhanced security features for your EverMarkets Account (including, for example, two-factor authentication). EverMarkets encourages, but may not require, you to use any such enhanced security features. If you do enable enhanced security features, it is your responsibility to ensure the security of, and your continuous control over, any device or account that may be associated with the enhanced security features.
3.4. Identity Verification. Depending on the functions that you seek to enable on your account and EverMarkets’ risk determination, EverMarkets may, in its discretion, require identity verification and other screening procedures with respect to you or transactions associated with your EverMarkets Account. These verification and screening procedures may include, without limitation, checking the information you provide against the Specially Designated Nationals and Blocked Persons list maintained by the U.S. Office of Foreign Assets Control, the U.S. Department of Commerce Denied Persons list, and any similar list issued by any U.S. governmental authority prohibiting or limiting business activities or transactions with any persons. You may be required to provide EverMarkets with certain personal information, including, but not limited to, your name, address, telephone number, email address, date of birth, taxpayer identification number, government identification number, and a photograph of your government-issued ID or other photographic proof of your identity. You hereby authorize EverMarkets, directly or through a third party, to make any inquiries EverMarkets considers necessary to verify your identity and/or protect against fraud, including but not limited to: (a) query identity information contained in public reports (e.g., your name, address, past addresses, or date of birth), and (b) take action EverMarkets reasonably deems necessary based on the results of such inquiries and reports. You further authorize any and all third parties to which such inquiries or requests may be directed to fully respond to such inquiries or requests.
3.5. Responsibility for Account Activities. You will be bound by, and hereby authorize EverMarkets to accept and rely on, any agreements, instructions, orders, authorizations and any other actions made, provided or taken by anyone who has accessed or used your EverMarkets Account regardless of whether the access is authorized or unauthorized. Upon receipt of written notice from you that the security of your account has been compromised, EverMarkets will take reasonable steps to protect your account, including, for example, to cease to allow actions initiated using any compromised account passwords. But, the first sentence of this section will continue to apply to any other account password, and any substitute password issued to replace the compromised account password.
3.6. Number of EverMarkets Accounts. EverMarkets may, in its sole discretion, limit the number of EverMarkets Accounts that you may hold, maintain, or acquire.
Trading commodity futures contracts, options and other derivative commodity futures position products or assets (“Futures”), using cryptographic tokens (“Tokens”) and use of other Services provided by EverMarkets, involves significant risks and potential for financial losses, including without limitation the following:
The risks described in this Section 4 may result in loss of Tokens or Futures, decrease in or loss of all value for Tokens or Futures, inability to access or transfer Tokens or Futures, inability to trade Tokens or Futures, inability to receive financial benefits available to other Token or Futures holders, and other financial losses to you. You hereby assume, and agree that EverMarkets will have no responsibility or liability for, such risks. You hereby irrevocably waive, release and discharge any and all claims, whether known or unknown to you, against EverMarkets, its Affiliates and their respective shareholders, members, directors, officers, employees, agents and representatives related to any of the risks set forth herein. You waive application of Section 1542 of the Civil Code of the State of California, or any similar statute or law of any other jurisdiction. Section 1542 reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You represent and warrant that you have: (a) the necessary technical expertise and ability to review and evaluate the security, integrity and operation of any Futures that you decide to acquire or trade; and (b) the knowledge, experience, understanding, professional advice and information to make your own evaluation of the merits and risks of any Future or trade. You accept the risk of trading Futures by using the Services, and are responsible for conducting your own independent analysis of the risks specific to the Tokens and the Services. You should not acquire or trade any Tokens unless you have sufficient financial resources and can afford to lose all value of the Tokens.
EverMarkets’ decision to support transfer, storage or trading of any particular Token through the Services does not indicate EverMarkets’ approval or disapproval of the Token or the integrity, security or operation of the Token or its Underlying Technology. The risks associated with Tokens and trading Tokens apply notwithstanding EverMarkets’ decision to support a particular Token. EverMarkets does not provide trading advice, does not have any fiduciary duty to you or any other user and does not make any warranty about the suitability of any Token for trading or ownership by you.
6.1. Initial Account Funding. In order to engage in a Trade (as defined below) you must first transfer Tokens that are supported by the Services to your EverMarkets Account. The Services associated with your EverMarkets Account include a wallet service provided by EverMarkets (“Hosted Wallet”). The Hosted Wallet will permit you to generate one or more addresses to which Tokens may be transferred from an account, wallet or address not hosted or controlled by EverMarkets (“External Account”). EverMarkets may require that you verify your control over an External Account or satisfy other verification or screening requirements prior to enabling transfers between the applicable External Account and your Hosted Wallet (any such External Account, an “Approved External Account”).
6.2. Deposits. You may periodically at your discretion transfer from an Approved External Account to your Hosted Wallet any Tokens that are supported for transfer and storage using the Services. If you transfer to your Hosted Wallet any Tokens that are not supported by the Services, such Tokens may be permanently lost.
6.3. Withdrawals. You are required to retain in your Hosted Wallet a sufficient quantity of Tokens necessary to satisfy any open orders (and applicable EverMarkets fees). In addition, there may be limits on the amounts that you are able to withdraw on a daily or other periodic basis. Otherwise, you may periodically at your discretion withdraw Tokens by transferring Tokens from your Hosted Wallet to an address not controlled by EverMarkets (“External Address”). EverMarkets may require you to verify that any External Address to which you seek to transfer Tokens is associated with an Approved External Account. You hereby authorize EverMarkets to use your Hosted Wallet to send to any External Address specified by you using the Services, the number of Tokens specified by you using the Services. EverMarkets is not able to reverse any transfers and will not have any responsibility or liability if you have instructed EverMarkets to send Tokens to an address that is incorrect, improperly formatted, erroneous or intended for a different type of Token.
6.4. Other Terms Applicable to Transfers. You will be responsible for: (a) paying all fees charged by any third party service provider associated with any External Account or External Address as well as for paying any fees charged by EverMarkets for any transfers; (b) ensuring that any inbound and outbound transfers are handled in compliance with EverMarkets requirements, third party service provider requirements or Token requirements; (c) ensuring that the address to which any Tokens are to be transferred is properly formatted and suitable for the type of Token being transferred; and (d) ensuring that there are no errors in any of the transfer instructions you provide using the Services. In the event you fail to comply with any requirements of this Section 6.4, the transferred Tokens may be permanently lost. The timing for completing any transfer will depend on third party actions that are outside the control of EverMarkets and EverMarkets makes no guarantee regarding the amount of time it may take to complete any transfer. EverMarkets may impose limits on the amount of any inbound or outbound transfers, or suspend or terminate the ability to transfer Tokens into or out of your Hosted Wallet in order to comply with applicable laws or regulations, an order from law enforcement or other governmental authority, or otherwise at EverMarkets’ discretion.
7.1. Orders; Fees. A “Trade” is a completed exchange of Futures for Tokens for which trading is supported on the Services between you and another user of the Services whereby you purchase and sell Futures using Tokens. An “Order” is created when you enter an instruction to effect a Trade using the Services. When you enter an Order you authorize EverMarkets or the EverMarkets [smart contract/protocol] to list your proposed Trade on the EverMarkets platform. Acceptance and settlement of an Order by another user or actor on the EverMarkets platform through the EverMarkets [smart contract/protocol] constitutes a Trade. You agree to pay EverMarkets any applicable fees for Orders or Trades and authorize EverMarkets to deduct any such fees from your Hosted Wallet.
7.2. No Broker or Fiduciary Relationship. EverMarkets is not your broker, intermediary, agent, or advisor and has no fiduciary relationship or obligation to you in connection with any Trades or other decisions or activities affected by you using the Services. No communication or information provided to you by EverMarkets is intended as, or shall be considered or construed as, advice. Please refer to Section 4 for a summary of some of the risks you should consider when choosing whether to use our Services.
7.3. Order Confirmation. Before an Order is placed, the Services will generate and display a confirmation dialogue box summarizing the details of the proposed transaction, including the amount of Tokens you are seeking to stake, the specific Futures that you are willing to stake your Tokens on, EverMarkets’ estimated fees for listing an Order and if the entire Trade were to be executed, and the total number of Tokens that will be transferred out of your Hosted Wallet if the entire Trade were to be executed. Your Order will be placed upon confirmation of the Order summary via the Services. Notwithstanding the foregoing, you agree that the failure of the Services to provide such Order summary or confirmation shall not prejudice or invalidate any Order submitted by you or any Trade completed based on such Order.
7.4. Order Matching and Trade Execution. Upon placement of an Order, your EverMarkets Account will be updated to reflect the open Order and your Order will be included in EverMarkets’ order book for matching with Orders from other users. If your Order is matched with another user, the Services will execute a Trade. Upon execution of a Trade, your EverMarkets Account will be updated to reflect that the Order has either been closed due to having been fully executed. Orders will remain open until fully executed or cancelled in accordance with Section 7.5 below. For purposes of effectuating a Trade, you authorize EverMarkets to take temporary control of the Tokens that you are disposing of in the Trade.
7.5. Cancellations. You may only cancel an order initiated via the Services if such cancellation occurs before your Order has been matched with an Order from another user. Once your Order has been matched with an Order from another user, you may not change, withdraw, or cancel your authorization for EverMarkets to complete such Order. EverMarkets reserves the right to refuse any cancellation request associated with a market Order after you have submitted such Order.
7.6. Insufficient Tokens. If you have an insufficient amount of Tokens in your Hosted Wallet to fulfill an Order, EverMarkets may cancel the entire Order or may fulfill a partial Order that can be covered by the Tokens in your Hosted Wallet (after deducting any fees payable to EverMarkets in connection with the Trade).
8.1. Conditions and Restrictions. EverMarkets may, at any time and in its sole discretion, refuse any transfer request, Order or other transaction request submitted via the Services, impose limits on the amounts of transfers or Trades that can be completed on a daily or other periodic basis or impose any other conditions or restrictions upon your use of the Services, without prior notice. For example, EverMarkets may: (a) limit the number of open Orders that you can establish via the Services; (b) restrict transaction requests from certain locations; or (c) restrict withdrawals or trading if there is a reasonable suspicion of fraud, diminished capacity, inappropriate activity, or if EverMarkets receives reasonable notice that your ownership of some or all of the Tokens in your EverMarkets Account is in dispute.
8.2. Accuracy of Information. You must provide any information required by any screen displayed within the Services. You represent and warrant that all information you provide via the Services is accurate and complete.
8.3. Support for Futures or Tokens. EverMarkets retains the right, in its sole discretion, to determine whether to support transfer, storage or trading of any Futures or Token using the Services, and may discontinue or terminate any support for any Futures or Token at any time for any or no reason. Unless otherwise required by law or law enforcement, EverMarkets will make reasonable efforts to notify you of its decision to cease to support of a Futures or Token. If EverMarkets ceases to support transfer or storage of a particular Token using the Services, EverMarkets will use commercially reasonable efforts to notify you at least  days prior so as to afford you with an opportunity to transfer the affected Token from your Hosted Wallet to an External Address. If you do not transfer the affected Token out of your Hosted Wallet prior to cessation of support for the Token by EverMarkets, the Token may be lost due to your inability to access, transfer or otherwise control the Token. EverMarkets will not be liable to you for any losses, liability or expenses related to its decision to cease any support for any Token.
8.4. Derivative Protocols. Unless EverMarkets notifies you or makes a public statement to the contrary, EverMarkets does not support not support metacoins, colored coins or other Tokens, or their related side chains or other Underlying Technology that are based on a fork, enhancement, or derivative of a different Token or Underlying Technology (“Derivative Protocols”) and you should not use your EverMarkets Account to attempt to transfer, store, trade or engage in any other type of transaction involving a Derivative Protocol. EverMarkets will have no responsibility or liability whatsoever in respect to any Derivative Protocol.
8.5. Compliance with Law; Taxes. You are responsible for complying with all applicable laws related to your trading activities and other use of the Services, including without limitation any reporting obligations and payment of all applicable taxes. You will determine what, if any, taxes apply to the Trades and any other transactions you complete via the Services, and it is your responsibility to report and remit the correct tax to the appropriate tax authority. EverMarkets is not responsible for determining whether taxes apply to your Trades or for collecting, reporting, withholding, or remitting any taxes arising from any Trades.
8.6. AML/KYC Compliance. It is anticipated we will become a registered Money Services Business, and EverMarkets maintains an internal anti-money laundering and know your customer compliance program (“AML/KYC Program”). The AML/KYC Program is a risk-based program founded on requirements of the Bank Secrecy Act, other anti-money laundering laws and implementing regulations, and guidance promulgated by the Financial Crimes Enforcement Network. This AML/KYC Program may be updated from time-to-time, including the procedures that EverMarkets users to verify its customers’ identities.
8.7. Error Correction Attempts. EverMarkets may, at its option and discretion, attempt to correct, reverse or cancel any Order, Trade or transfer with respect to which EverMarkets has discovered that there was an error, whether such error was by you, EverMarkets or a third party. You hereby authorize EverMarkets to attempt any such correction, reversal or cancellation described in the preceding sentence. EverMarkets provides no guarantee or warranty that any such attempt will be successful and will have no responsibility or liability for the error or any correction attempt.
8.8. Unclaimed Property. If your EverMarkets Account has been inactive and you have not responded to reasonable attempts by EverMarkets to contact you for a period of several years (as defined by the relevant state statutes), EverMarkets may have an obligation to report any Tokens in your Hosted Wallet to the applicable governmental entity as unclaimed property. If this happens, EverMarkets will attempt to contact you using the contact information provided by you. If you do not respond, EverMarkets may be obligated to turn over any Tokens in your Hosted Wallet to the applicable governmental entity after deducting any fees payable to EverMarkets.
8.9. Property Disputes. If EverMarkets receives notice that any Tokens held in your Hosted Wallet are alleged to have been stolen or otherwise are not lawfully possessed by you, EverMarkets may, but has no obligation to, place an administrative hold on the affected Tokens or your Hosted Wallet. If EverMarkets does place an administrative hold on some or all of your Tokens, EverMarkets may continue such hold until such time as the dispute has been resolved and evidence of the resolution acceptable to EverMarkets has been provided to EverMarkets in a form acceptable to EverMarkets. EverMarkets will not involve itself in any such dispute or the resolution of the dispute. You agree that EverMarkets will have no liability or responsibility for any such hold, or for your inability to withdraw Tokens or execute Trades during the period of any such hold.
8.10. Unacceptable Use or Conduct. You will not:
You agree to pay EverMarkets the fees described in the fee schedule at www.emx.com/fees (“Fee Schedule”), as periodically updated by EverMarkets at EverMarkets’ discretion. The updated Fee Schedule will apply prospectively to any Trades or other transactions that take place following the effective date of such updated Fee Schedule. You authorize EverMarkets to remove Tokens from your Hosted Wallet for any applicable fees owed by you under these Terms.
10.1. Changes to Services. EverMarkets may, at its discretion and without liability to you, with or without prior notice and at any time, modify or discontinue, temporarily or permanently, all or any portion of any Services.
10.2. Suspension or Termination of Services. EverMarkets may, at its discretion and without liability to you, with or without prior notice and at any time, temporarily suspend or permanently terminate your access to all or a portion of any Services.
10.3. No Liability. EverMarkets will not be liable for any losses suffered by you resulting from any modification of any Services or from any suspension or termination of your access to all or a portion of any Services (whether pursuant to this Section 10 or for any other reason). If and when Services resume, you acknowledge that Token valuations and exchange rates may differ significantly from the valuations and rates prior to such event.
10.4. Effect of Termination. In the event of discontinuation of all Services or other termination of your right to access all Services: (a) all amounts payable by you to EverMarkets will immediately become due; (b) EverMarkets may delete or deactivate your EverMarkets Account and all related information and files in such account without liability to you; and (c) EverMarkets may cancel any open Orders or other transaction requests that are pending at the time of discontinuation or termination. In the event of discontinuation or termination of all Services or discontinuation or termination of transfer or storage Services for all or some Tokens, EverMarkets will use commercially reasonable efforts, unless prohibited in order to comply with applicable laws or regulations or by order of law enforcement or other governmental authority, to provide you with a period of 90 days to remove the affected Tokens from your Hosted Wallet.
10.5. Survival. The terms of Sections 2.3, 3.3, 4, 5, 6 and 8 through 20 will survive any termination of your access to the Services.
11.1. Consent to Electronic Delivery. You consent to receive electronically all communications, agreements, documents, receipts, notices, and disclosures (collectively, “Communications”) that EverMarkets provides in connection with this Agreement, your EverMarkets Account or any Services. You agree that EverMarkets may provide these Communications to you by posting them via the Services, or by emailing them to you at the email address you provide. Your carrier's normal, messaging, data, and other rates and fees may apply to any mobile Communications. You should maintain copies of electronic Communications by printing a paper copy or saving an electronic copy.
11.2. Hardware and Software Requirements. In order to access and retain electronic Communications, you will need a computer with an Internet connection that has a current web browser with cookies enabled and 128-bit encryption. You will also need to have a valid email address on file with EverMarkets and have sufficient storage space to save past Communications or an installed printer to print them.
11.3. Withdrawal of Consent. You may withdraw your consent to receive electronic Communications by sending a withdrawal notice to email@example.com. If you decline or withdraw consent to receive electronic Communications, EverMarkets may suspend or terminate your use of the Services
11.4. Updating Contact Information. It is your responsibility to keep your email address and/or mobile phone number on file with EverMarkets up to date so that EverMarkets can communicate with you electronically. If EverMarkets sends you an electronic Communication but you do not receive it because your email address or mobile phone number on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, EverMarkets will be deemed to have provided the Communication to you. Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add EverMarkets to your email address book so that you will be able to receive the Communications EverMarkets sends to you. You can update your email address, mobile phone number, or street address at any time by filing a support request at https://help.emx.com. If your email address or mobile phone number becomes invalid such that electronic Communications sent to you by EverMarkets are returned, EverMarkets may deem your account to be inactive, and you may not be able to complete any transaction via our Services until EverMarkets receives a valid, working email address or mobile phone number from you.
12.1. Ownership of Services. The Services, Site and all technology, content and other materials used, displayed or provided in connection with the Services or Site (“EverMarkets Materials”) together with all intellectual property rights in any of the foregoing are, as between you and EverMarkets, owned by EverMarkets.
12.2. Limitations. You may use the EverMarkets Materials solely as authorized by EverMarkets in connection with your use of the Services for as long as EverMarkets permits you to continue to access the Services. Without limiting the foregoing: you will not (a) resell, lease, lend, share, distribute or otherwise permit any third party to use the Site, Services or EverMarkets Materials or use the Site, Services or EverMarkets Materials in any service bureau environment; (b) modify or create derivative works of the Site, Services or EverMarkets Materials, or any portion thereof; (c) frame, display or incorporate the Site, Services or EverMarkets Materials in any website or any other work of authorship; (d) decompile, disassemble, reverse engineer or attempt to discover the source code of the Site, Services or EverMarkets Materials; (e) use the Site, Services or EverMarkets Materials to design, develop or create any competing product or service; or (f) otherwise use the Site, Services or EverMarkets Materials for any commercial or noncommercial purpose other than their intended purposes determined at EverMarkets’ discretion. “EverMarkets”, any product or service names, logos, and other marks used on the Site or EverMarkets Materials, or otherwise in connection with the Services, are trademarks owned by EverMarkets or its licensors. You may not copy, imitate or use them without EverMarkets’ prior written consent.
12.3. Feedback. EverMarkets will own any feedback, suggestions, ideas, or other information or materials regarding EverMarkets or the Services that you provide, whether by email, posting through the Services or otherwise (“Feedback”). You hereby assign to EverMarkets all right, title and interest to Feedback together with all associated intellectual property rights. You will not be entitled to, and hereby waive any claim for, acknowledgment or compensation based on any Feedback or any modifications made based on any Feedback.
12.4. User Content. You hereby grant to EverMarkets a royalty-free, fully paid-up, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, copy, modify, create derivative works of, display, perform, publish and distribute, in any form, medium or manner, any text, information, data, materials, images, or other content you provide to EverMarkets using the Services or submit or post to the Site and that is not Feedback owned by EverMarkets (the “User Content”). You represent and warrant that: (a) you own the User Content or have the right to grant the rights and licenses in these Terms, and (b) the User Content and use by EverMarkets of the User Content as licensed herein does not and will not violate, misappropriate or infringe on the rights of any third party. EverMarkets may remove any User Content from the Site for any reason at EverMarkets’ discretion.
In using the Services, you may view content provided by third parties (“Third-Party Content”). EverMarkets does not control, endorse, or adopt any Third-Party Content and shall have no responsibility for Third-Party Content, including without limitation material that may be misleading, incomplete, erroneous, offensive, indecent, or otherwise objectionable. In addition, your business dealings or correspondence with such third parties are solely between you and the third parties. EverMarkets is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, and you understand that your use of Third-Party Content, and your interactions with third parties, is at your own risk.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SITE, THE SERVICES, THE EVERMARKETS MATERIALS AND ANY PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON BEHALF OF EVERMARKETS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND EVERMARKETS EXPRESSLY DISCLAIMS, AND YOU WAIVE, ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE. WITHOUT LIMITING THE FOREGOING, EVERMARKETS DOES NOT REPRESENT OR WARRANT THAT THE SITE, THE SERVICES OR EVERMARKETS MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOUR USER DATA MAY BECOME IRRETRIEVABLY LOST OR CORRUPTED OR TEMPORARILY UNAVAILABLE DUE TO A VARIETY OF CAUSES, INCLUDING SOFTWARE FAILURES, VIRUSES OR OTHER HARMFUL MATERIALS, PROTOCOL CHANGES BY THIRD PARTY PROVIDERS, INTERNET OUTAGES, FORCE MAJEURE EVENT OR OTHER DISASTERS, SCHEDULED OR UNSCHEDULED MAINTENANCE, OR OTHER CAUSES EITHER WITHIN OR OUTSIDE OUR CONTROL. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP AND MAINTAINING DUPLICATE COPIES OF ANY INFORMATION YOU STORE OR TRANSFER THROUGH OUR SERVICES.
THE DISCLAIMER OF IMPLIED WARRANTIES CONTAINED HEREIN MAY NOT APPLY IF AND TO THE EXTENT IT IS PROHIBITED BY APPLICABLE LAW OF THE JURISDICTION IN WHICH YOU RESIDE.
You will defend, indemnify, and hold harmless EverMarkets, its Affiliates, and their respective shareholders, members, directors, officers, employees, attorneys, agents, representatives, suppliers and contractors (collectively, “Indemnified Parties”) from any claim, demand, lawsuit, action, proceeding, investigation, liability, damage, loss, cost or expense, including without limitation reasonable attorneys’ fees, arising out or relating to (a) your use of, or conduct in connection with, the Services; (b) any Feedback or User Content you provide; (c) your violation of these Terms; or (d) your violation of any applicable law or the rights of any other person or entity. If you are obligated to indemnify any Indemnified Party, EverMarkets (or, at EverMarkets’ discretion, the applicable Indemnified Party) will have the right, in its sole discretion, to control any action or proceeding and to determine whether EverMarkets wishes to settle, and if so, on what terms.
IN NO EVENT WILL EVERMARKETS, ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, REPRESENTATIVES, SUPPLIERS OR CONTRACTORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, INFORMATION, REVENUE, PROFITS OR OTHER BUSINESS OR FINANCIAL BENEFIT) ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE SERVICES, THE EVERMARKETS MATERIALS, ANY PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, OR ANY OTHER PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON BEHALF OF EVERMARKETS, WHETHER UNDER CONTRACT, STATUTE, STRICT LIABILITY OR OTHER THEORY (INCLUDING, FOR AVOIDANCE OF DOUBT, ANY NEGLIGENCE OF EVERMARKETS), EVEN IF EVERMARKETS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL THE LIABILITY OF EVERMARKETS, ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, REPRESENTATIVES, SUPPLIERS OR CONTRACTORS ARISING OUT OF OR IN CONNECTION WITH SITE, THE SERVICES, THE EVERMARKETS MATERIALS, ANY PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, OR ANY OTHER PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON BEHALF OF EVERMARKETS, WHETHER UNDER CONTRACT, STATUTE, STRICT LIABILITY OR OTHER THEORY (INCLUDING, FOR AVOIDANCE OF DOUBT, ANY NEGLIGENCE OF EVERMARKETS) EXCEED THE AMOUNT OF THE FEES PAID BY YOU TO EVERMARKETS UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
With the exception only of disputes related to the enforcement or validity of EverMarkets’ intellectual property rights, all disputes, controversies or claims arising out of or relating to these Terms or the Services, will be resolved through confidential binding arbitration held in San Francisco, California in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You acknowledge and agree that you have read and understand the rules of JAMS or waived your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You agree that any dispute arising out of or related to these Terms or the Services is personal to you and EverMarkets and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You agree that these Terms involve matters affecting interstate commerce and that the enforceability of this Section 18 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You agree that for any arbitration, the party filing the claim will pay the filing fee and the parties will split the remaining JAMS fees and costs. Judgment upon any arbitration award may be entered and enforced in any court of competent jurisdiction. Otherwise, you and EverMarkets agree that the state or federal courts in San Francisco County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
WITH RESPECT TO DISPUTES SUBJECT TO ARBITRATION PURSUANT TO THIS SECTION 18, BOTH YOU AND EVERMARKETS ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) THOSE DISPUTES IN COURT BEFORE A JUDGE OR JURY.
The interpretation and enforcement of these Terms, and any dispute related to these Terms or the Services, will be governed by and construed and enforced in accordance with the laws of State of California, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You agree that EverMarkets may initiate a proceeding related to the enforcement or validity of EverMarkets’ intellectual property rights in any court having jurisdiction. With respect to any other proceeding that is not subject to arbitration under these Terms, the federal and state courts located in San Francisco County, California will have exclusive jurisdiction. You waive any objection to venue in any such courts.
20.1. Copyright Violations. EverMarkets has a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify EverMarkets’ Designated Agent. Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to EverMarkets for certain costs and damages. The fastest way to contact our Designated Agent is to send the proper notification to: firstname.lastname@example.org You may also submit a proper notification to our Designated Agent by mail or phone as follows:
EverMarkets Designated Agent Jerald David, COO
Address: 8 The Green, Suite 7145, Dover, DE 19901
20.2. Remedies. If you violate any of these Terms, EverMarkets may, as it determines reasonably necessary to remedy or mitigate your violation, delete all or part of such information transmitted by you, suspend or cancel your account, or confiscate Tokens owned by you without any prior notice to you. EverMarkets shall in no event be responsible or liable for any damage incurred by the user as a result of an action taken by EverMarkets pursuant to this paragraph. Any right or remedy of EverMarkets set forth in these Terms is in addition to, and not in lieu of, any other right or remedy whether described in these Terms, under statute, at law or in equity.
20.3. EverMarkets Affiliates and Contractors. An “Affiliate” is, with respect to a legal entity, another legal entity that controls, is under common control with, or is controlled by the first legal entity. The Site and any Services may be operated or provided by EverMarkets, its Affiliates or their respective contractors. To the extent that an Affiliate of EverMarkets, or contractor of EverMarkets or an Affiliate of EverMarkets, is operating or providing any Services, the Affiliate or contractor’s provision of such Services will be under terms identical to these Terms substituting the Affiliate or contractor’s name wherever EverMarkets’ name occurs in these Terms.
20.4. Nonwaiver. EverMarkets’ failure or delay in exercising any right, power, or privilege under these Terms shall not operate as a waiver thereof.
20.5. Severability. The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.
20.6. Force Majeure. EverMarkets will have no responsibility or liability for any failure or delay in performance of any Services, or any loss or damage that you may incur, due to any circumstance or event beyond the control of EverMarkets, including without limitation any flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications, power failure, or equipment or software malfunction.
20.7. Assignment. You may not assign or transfer any right to use the Services or any of your rights or obligations under these Terms without prior written consent from us, including by operation of law or in connection with any change of control. EverMarkets may assign or transfer any or all of its rights or obligations under these Terms, in whole or in part, without notice or obtaining your consent or approval.
20.8. Headings. Headings of sections are for convenience only and shall not be used to limit or construe such sections.
20.9. Entire Agreement; Order of Precedence. These Terms contain the entire agreement, and supersede all prior and contemporaneous understandings between the parties regarding the Services. In the event of any conflict between these Terms and any other agreement you may have with EverMarkets, these Terms will control unless the other agreement specifically identifies these Terms and declares that the other agreement supersedes these Terms.