Last Modified: October 19, 2018
PLEASE READ THIS AGREEMENT CAREFULLY AND IN ITS ENTIRETY BEFORE PURCHASING ANY U42 TOKENS.
This U42 Token Purchase Agreement (this “Agreement”) by and between you and You42, Inc. (the “Company”) contains the terms and conditions that govern your purchase of certain ERC20-compatible tokens distributed by the Company on the Ethereum blockchain (the “U42 Tokens”) during the U42 Token generation event (the “Token Sale Period”). You and the Company are each herein referred to as a “Party” and, collectively, as the “Parties”.
In consideration of the mutual representations, warranties and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and you agree as follows:
Section 1.01. Effective Date; Other Materials Incorporated Herein By Reference.
(a) By purchasing U42 Tokens from the Company during the Token Sale Period, you will be bound by this Agreement and all terms incorporated herein by reference. This Agreement shall be effective and binding on you and the Company on the date that the Company has received payment from you in full for your U42 Tokens and you have received U42 Tokens distributed to the digital token wallet specified by you in the amount calculated in accordance with the White Papers (as defined below) (the “Effective Date”). Following the Effective Date, the terms of this Agreement may be amended by the Company in accordance with Section 11.04.
(b) The terms of service for the Company’s blockchain-based platform (the “You42 Platform”) located HERE (as may be amended from time to time, the “Terms of Service”) are hereby incorporated herein by reference. The U42 Token white paper and the U42 Token technical white paper, both located HERE (as each may be amended from time to time, collectively, the “White Papers”) and other materials concerning the You42 Platform, available at https://u42.io/ (the “Website”) are hereby incorporated herein by reference.
(d) To the extent of any conflict with this Agreement, the Platform Terms and Policies shall control with respect to any issues relating to the use of U42 Tokens in connection with providing or receiving Services on the You42 Platform.
Section 1.02. Purpose and Use of U42 Tokens.
(a) The purpose of the U42 Tokens is to access and utilize the capabilities of the You42 Platform in the manner described in the White Papers (the “Services”). The U42 Tokens do not confer any rights other than rights relating to the provision and receipt of Services on the You42 Platform, subject to limitations and conditions in applicable Platform Terms and Policies.
(b) YOU AGREE AND CERTIFY THAT YOU ARE PURCHASING U42 TOKENS DURING THE TOKEN SALE PERIOD FOR YOUR OWN PERSONAL USE AND UTILITY, AND TO MAKE USE OF THE PLATFORM AND NOT FOR INVESTMENT, OR FINANCIAL PURPOSES. YOU AGREE THAT THE U42 TOKENS HAVE NO CURRENT OR ANTICIPATED FUTURE VALUE OUTSIDE OF THEIR UTILITY ON THE PLATFORM. U42 Tokens are digital cryptographic tokens to be used on the You42 Platform. You acknowledge and understand that: (i) U42 Tokens are not intended to be investments, currencies, securities, commodities, swaps on a currency, security or commodity or a financial asset or instrument of any kind, (ii) purchases and sales of U42 Tokens are not subject to the protections of any laws governing those types of financial instruments, and (iii) this Agreement and all other documents referred to in this Agreement, including the White Papers, do not constitute a prospectus or offering document, and are not an offer to sell, nor the solicitation of an offer to buy an investment, a currency, a security, commodity, or a swap on either a security or commodity or a financial asset or instrument of any kind. By entering into this Agreement, you affirm that you understand any and all concepts described in the documents to your satisfaction and affirm that you also agree to the Platform Terms and Policies.
Section 1.03. Cancellation
Your purchase of U42 Tokens from the Company during the Token Sale Period is final, and there are no refunds or cancellations except as may be required by applicable law or regulation. The Company reserves the right to refuse or cancel Token purchase requests at any time in its sole discretion.
Section 1.04. Migration of U42 Tokens to New Protocol.
(a) The Company reserves the right to migrate the U42 Tokens (the “Pre-existing U42 Tokens”) from the Ethereum protocol to a future protocol, that may or may not currently exist, for any reason. Further, the Company may generate new U42 Tokens on the future protocol and make them available to the holders of Pre-existing U42 Tokens (the “Replacement U42 Tokens”) should the Company determine, in its sole discretion, that doing so is necessary or useful to the operation of the You42 Platform.
(b) Should the Company decide to migrate the U42 Tokens, it may no longer provide support for the Pre-existing U42 Tokens relating to the You42 Platform, the Services, or any other operational matters, except with respect to the migration process. Although the Company does not at this time anticipate that it will require any Pre-existing Token holders to convert their Pre- existing U42 Tokens to Replacement U42 Tokens, the Company anticipates there will be significant incentives for Pre-existing Token holders to do so, since the practical utility of Pre- existing U42 Tokens will likely diminish rapidly once the Replacement U42 Tokens are created and in use by a significant portion of You42 Platform users. Accordingly, by entering into this Agreement, you acknowledge and agree that in order for you to continue to make use of the You42 Platform or obtain utility from the U42 Tokens, you may need to convert the U42 Tokens you purchase during the Token Sale Period to Replacement U42 Tokens in the future.
(c) Should the Company decide to migrate the U42 Tokens, it will notify you by means of the Website. You are solely responsible for regularly checking for updates on the Website or other channels the Company makes available.
Section 2.01. Distribution of U42 Tokens.
The Company shall distribute the U42 Tokens (the “Token Distribution”) to purchasers thereof in a manner consistent with the procedures and other instructions set forth on the Website at u42.io. You shall follow such procedures set forth by the Company for purchasing U42 Tokens. As a condition precedent to any sale by the Company of any U42 Tokens, you must have a digital token wallet or other storage mechanism (“Wallet”) that supports the ERC20 token standard in order to receive any U42 Tokens you purchase from the Company and you must provide an accurate digital token wallet address to the Company (the “Token Receipt Address”). The Company reserves the right to prescribe additional guidance regarding specific requirements with respect to a storage mechanism for the U42 Tokens. The Company is not responsible for any delays, losses, costs, non-delivery of refunds or of U42 Tokens, or other issues arising from your failing to provide a Token Receipt Address, or providing an inaccurate or incomplete Token Receipt Address. You acknowledge and understand that the procedures for purchasing U42 Tokens are set forth on the Website at u42.io and that the failure to follow such procedures will result in your inability to receive U42 Tokens and, as a result, you will lose some or all of the amounts paid by you for the U42 Tokens.
Section 2.02. Sources and Uses of Funds.
(a) You shall not use the U42 Tokens to finance, engage in, or otherwise support any unlawful activities.
(b) All payments made by you under this Agreement shall be made only in your name, from a digital token wallet or account not located in a country or territory that has been designated as a “non-cooperative country or territory” by the Financial Action Task Force (on Money Laundering), and is not a “foreign shell bank” within the meaning of the U.S. Bank Secrecy Act (31 U.S.C. § 5311 et seq.), as amended, and the regulations promulgated thereunder the Financial Crimes Enforcement Network of the United States Department of the Treasury, as such regulations may be amended from time to time.
(c) You shall comply with all anti-money laundering and counter-terrorism financing requirements in connection with your purchase of U42 Tokens pursuant to this Agreement. The Company reserves the right to conduct “Know Your Customer” and “Anti-Money Laundering” checks on you if it deems necessary or it becomes required by the applicable laws. Upon the Company’s request, you shall immediately provide to the Company any information and documents that the Company, in its sole discretion, deems necessary or appropriate to comply with any laws, regulations, rules or agreements, including without limitation, judicial process. Such documents may include, but are not limited to, passports, driver’s licenses, utility bills, photographs of associated individuals, government identification cards or sworn statements. You hereby consent to the Company disclosing any such information and documents in order to comply with applicable laws, regulations, rules or agreements. The Company may, in its sole discretion, refuse to distribute U42 Tokens to you until such requested information is provided.
Section 3.01. No Claim, Loan or Ownership Interest.
You understand and accept that the purchase of U42 Tokens: (a) shall not provide you with rights of any form with respect to the Company or its revenues or assets, including, but not limited to, any voting, distribution, redemption, liquidation, proprietary (including all forms of intellectual property), or other financial or legal rights, or any other form of participation in the You42 Platform and/or the Company and its affiliates, other than the ability to use the U42 Tokens in connection with the Services on the You42 Platform, subject to this Agreement; (b) shall not be deemed to be a loan to the Company; and (c) shall not provide you with any ownership or other interest in the Company.
Section 3.02. Intellectual Property.
The Company shall retain all right, title and interest in all of the Company’s intellectual property, including, without limitation, inventions, ideas, concepts, code, discoveries, processes, marks, methods, software, compositions, formulae, techniques, information and data, whether or not patentable, copyrightable or protectable in trademark, and any trademarks, copyright or patents based thereon. You shall not use any of the Company’s intellectual property for any reason without the Company’s prior written consent.
Section 4.01. Security and Data Privacy.
You shall implement reasonable and appropriate measures to secure access to: (i) any device associated with you and utilized in connection with your purchase of U42 Tokens; (ii) private keys to your digital token wallet or account; and (iii) any other username, passwords or other login or identifying credentials. In the event that you are no longer in possession of your private keys or any device associated with your account or are not able to provide your login or identifying credentials, you acknowledge and understand that you may lose all of your U42 Tokens or access to your account. In such event, the Company shall be under no obligation to recover any U42 Tokens and you acknowledge, understand and agree that all purchases of U42 Tokens are non-refundable and you shall not receive money or other compensation for any U42 Tokens purchased.
Section 4.02. Taxes.
The purchase price that you pay for U42 Tokens is exclusive of all applicable taxes. You are responsible for determining what, if any, taxes apply to your purchase of U42 Tokens, including, for example, sales, use, value added, and similar taxes. It is also your responsibility to withhold, collect, report and remit the correct taxes to the applicable tax authorities. You shall be solely responsible for compliance with any tax obligations arising from the purchase or receipt of U42 Tokens. The Company is not responsible for withholding, collecting, reporting or remitting any sales, use, value added or similar tax arising from your purchase of U42 Tokens. The Company shall bear no liability or responsibility with respect to any tax obligation of you in respect of the purchase and receipt of any U42 Tokens.
Section 5.01. Your Representations and Warranties.
You represent and warrant to the Company that as of the Effective Date:
(a) You have read and understood all of the terms of this Agreement (including the attached Exhibit(s), the White Papers and the Platform Terms and Policies);
(b) You have all requisite power and authority to execute and deliver this Agreement, to purchase the U42 Tokens, and to carry out and perform your obligations under this Agreement.
(c) If a natural person, you are at least 18 years old and of sufficient legal age and capacity to purchase the U42 Tokens.
(d) If a legal entity, are duly organized, validly existing and in good standing under the laws of your jurisdiction of formation and each jurisdiction where you conduct business and the person purchasing the U42 Tokens on your behalf is duly authorized to accept this Agreement on your behalf.
(e) You have sufficient understanding of the functionality, usage, storage, transmission mechanisms and other material characteristics of the U42 Tokens, digital cryptographic token storage mechanisms (such as token wallets), blockchain technology and blockchain-based software systems to understand this Agreement and to appreciate the risks and implications of purchasing the U42 Tokens;
(f) You are aware of the Company’s business affairs and financial condition and have obtained sufficient information about the Company and the U42 Tokens to make an informed decision to purchase the U42 Tokens;
(g) You understand that the U42 Tokens confer only the right to provide and receive Services by means of the You42 Platform and confer no other rights of any form with respect to the You42 Platform or the Company or its corporate affiliates, including, but not limited to, any voting, distribution, redemption, liquidation, proprietary (including all forms of intellectual property), or other financial or legal rights;
(h) You are purchasing U42 Tokens to provide and/or receive Services through the You42 Platform and to support the operation of the You42 Platform. You are not purchasing U42 Tokens for any other uses or purposes, including, but not limited to, any investment, speculative or other financial purposes;
(i) Your purchase of U42 Tokens complies with applicable law and regulation in your jurisdiction of citizenship or residency, including, but not limited to, (i) legal capacity and any other threshold requirements in your jurisdiction for purchasing the U42 Tokens, using the U42 Tokens on the You42 Platform and entering into contracts with us, (ii) any foreign exchange or regulatory restrictions applicable to such purchase, and (iii) any governmental or other consents that may need to be obtained;
(j) You will comply with any applicable tax obligations in your jurisdiction arising from your purchase of U42 Tokens;
(k) You understand that you bear the sole responsibility to determine if your use of the You42 Platform, the transfer of any cryptocurrency to the Company, the creation, ownership or use of the U42 Tokens, the sale and purchase of the U42 Tokens and/or any other action or transaction related to the Company or the You42 Platform have tax implications; by creating, holding or using the U42 Tokens, and to the extent permitted by law, you agree not to hold any third party (including developers, auditors, contractors or founders) liable for any tax liability associated with or arising from the creation, ownership or use of the U42 Tokens or any other action or transaction related to the Company or the You42 Platform;
(l) You waive the right to participate in a class action lawsuit or a classwide arbitration against any entity or individual involved with the creation of the U42 Tokens, as discussed more fully in Section 10.01;
(m) You understand the creation and sale of the U42 Tokens does not involve the purchase of shares or any equivalent in any existing or future public or private company, corporation or other entity in any jurisdiction;
(n) You understand that the transfer of cryptocurrency to the Company to purchase the U42 Tokens, the creation and sale of the U42 Tokens and the use of the You42 Platform carries significant financial, regulatory and reputational risks as further set forth in this Agreement and Exhibit A;
(o) You understand that you have no right against any other party to request any refund of cryptocurrency from the Company for the purchase of U42 Tokens under any circumstance;
(p) You are not (i) a citizen or resident of a geographic area in which the purchase of the U42 Tokens and/or access to or use of the Services on the You42 Platform is prohibited by applicable law, decree, regulation, treaty, or administrative act, (ii) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes, (iii) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List, or an entity in which one or more Specially Designated Nationals own in the aggregate, directly or indirectly, a 50 percent or greater interest and you will not use the U42 Tokens to conduct or facilitate transactions with such persons described above, or (iv) purchasing U42 Tokens from countries or regions comprehensively sanctioned by the US Office of Foreign Assets Control, or on behalf of governments of these countries or regions, nor will you use the U42 Tokens to conduct or facilitate any transactions with persons or entities located in these countries or regions. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Services. If you are registering to use the Services on behalf of a legal entity, you further represent and warrant that (x) such legal entity is duly organized and validly existing under the applicable laws of the jurisdiction of its organization, and (ii) you are duly authorized by such legal entity to act on its behalf. You acknowledge and agree that your breach of this Section 5.01(p) shall render this Agreement and all transactions conducted by you pursuant to this Agreement or otherwise on the Your Platform null and void and, in such a circumstance, the Company may take all necessary and appropriate actions, in its sole discretion, to invalidate this Agreement and any such transactions, including referral of information to the appropriate authorities. To the extent permitted by law, you agree to indemnify, defend and hold the Company or any of its affiliates, employees or agents (including developers, auditors, contractors or founders) harmless for any claim, liability, assessment or penalty with respect to the your breach of this Section 5.01(p);
(q) You understand that it is anticipated that the U42 Tokens will have no future value outside of their utility on the You42 Platform, no market liquidity for U42 Tokens is expected and the Company is not and shall not be responsible for or liable for the unavailability of any market for U42 Tokens through third parties or otherwise; and
(r) The funds, including any virtual currency or cryptocurrency that you use to purchase U42 Tokens are not derived from or related to any unlawful activities, including, but not limited to, money laundering or terrorist financing.
Section 5.02. Disclaimers; No Company Representations or Warranties.
(a) THE COMPANY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY.
(b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE U42 TOKENS ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, AND WITH RESPECT TO THE U42 TOKENS, THEIR UTILITY AND THE ABILITY OF ANYONE TO PURCHASE OR USE THE U42 TOKENS, THE COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR AS TO THE WORKMANSHIP OR TECHNICAL CODING THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT.
(c) THE COMPANY AND THE COMPANY PARTIES (AS DEFINED BELOW) DISCLAIM ALL REPRESENTATIONS AND WARRANTIES THAT THE PROCESS OF PURCHASING OR RECEIVING THE U42 TOKENS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE U42 TOKENS ARE RELIABLE, CURRENT, MEET YOUR REQUIREMENTS, OR ARE ERROR-FREE, OR THAT DEFECTS IN THE U42 TOKENS WILL BE CORRECTED AND CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE U42 TOKENS OR THE DELIVERY MECHANISM FOR U42 TOKENS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
(d) YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE COMPANY, OR ANY OTHER PERSON ON THE COMPANY’S BEHALF, INCLUDING, BUT NOT LIMITED TO, CONVERSATIONS OF ANY KIND, WHETHER THROUGH ORAL OR ELECTRONIC COMMUNICATION.
(e) TRANSACTIONS USING BLOCKCHAIN TECHNOLOGY, SUCH AS THOSE INVOLVING THE U42 TOKEN SALE, ARE AT RISK TO MULTIPLE POTENTIAL FAILURES, INCLUDING HIGH NETWORK VOLUME, COMPUTER FAILURE, USER FAILURE, TOKEN THEFT AND NETWORK HACKING. THE COMPANY IS NOT RESPONSIBLE FOR ANY LOSS OF DATA, ETHER, U42 TOKENS, HARDWARE OR SOFTWARE RESULTING FROM ANY TYPES OF FAILURES, THEFT OR HACK. YOU UNDERSTAND AND AGREE THAT THE COMPANY SHALL NOT BE LIABLE AND DISCLAIMS ALL LIABILITY TO YOU IN CONNECTION WITH ANY FORCE MAJEURE EVENT, INCLUDING ACTS OF GOD, LABOR DISPUTES OR OTHER INDUSTRIAL DISTURBANCES, ELECTRICAL, TELECOMMUNICATIONS, HARDWARE, SOFTWARE OR OTHER UTILITY FAILURES, SOFTWARE OR SMART CONTRACT BUGS OR WEAKNESSES, EARTHQUAKES, STORMS, OR OTHER NATURE-RELATED EVENTS, BLOCKAGES, EMBARGOES, RIOTS, ACTS OR ORDERS OF GOVERNMENT, ACTS OF TERRORISM OR WAR, TECHNOLOGICAL CHANGE, CHANGES IN INTEREST RATES OR OTHER MONETARY CONDITIONS, AN, FOR THE AVOIDANCE OF DOUBT, CHANGES TO ANY BLOCKCHAIN-RELATED PROTOCOL.
(f) Some jurisdictions do not allow the exclusions of certain warranties or disclaimer of implied terms in contracts with consumers, so some or all of the exclusions of warranties and disclaimers in this section may not apply to you.
Section 6.01. Your Acknowledgement and Assumption of Risks.
You hereby acknowledge and agree that there are risks associated with purchasing U42 Tokens, holding U42 Tokens and using U42 Tokens for providing or receiving Services through the You42 Platform, as disclosed and explained in Exhibit A. BY PURCHASING U42 TOKENS, YOU EXPRESSLY ACKNOWLEDGE AND ASSUME THESE RISKS.
Section 7.01. Indemnification by You.
(a) To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless the Company, its affiliates and predecessors and our and their respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (collectively, the “Company Parties”) from and against all claims, demands, actions, damages, losses, costs and expenses (including attorneys’ fees) that arise from or relate to: (i) your purchase or use of U42 Tokens; (ii) your responsibilities or obligations under this Agreement; (iii) your breach of or violation of this Agreement; (iv) your violation of any rights of any other person or entity; or (v) any act or omission by you that is negligent, unlawful or constitutes willful misconduct.
(b) The Company reserves the right to exercise sole control over the defenseyou’re your expense, of any claim subject to indemnification under Section 7.01(a). This indemnity is in addition to, and not in lieu of, any other remedies at law or otherwise that are available to the Company.
Section 8.01. Company Limitation of Liability.
(A) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT WILL THE COMPANY OR ANY OF THE COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, WHERE RELATED TO LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE SALE OR USE OF THE U42 TOKENS OR OTHERWISE RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE); AND (II) IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE COMPANY AND THE COMPANY PARTIES (JOINTLY), WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE U42 TOKENS, EXCEED THE AMOUNT YOU PAY TO THE COMPANY FOR THE U42 TOKENS.
(B) THE LIMITATIONS SET FORTH IN SECTION 8.01(A) WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL, WILLFUL OR RECKLESS MISCONDUCT OF THE COMPANY.
(C) Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations of this section may not apply to you.
Section 9.01. Release by You.
To the fullest extent permitted by applicable law, you release the Company and the other Company Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence) arising out of or related to disputes between you and the acts or omissions of third parties.
Section 10.01. Dispute Resolution; Arbitration.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THE COMPANY.
(a) Binding Arbitration. Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either Party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patent, you and the Company (i) waive your and the Company’s respective rights to have any and all Disputes arising from or related to this Agreement resolved in a court and (ii) waive your and the Company’s respective rights to a jury trial. Instead, you and the Company will arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
(b) No Class Arbitrations, Class Actions or Representative Actions. Any Dispute arising out of or related to this Agreement is personal to you and the Company, 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. There will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
(c) Federal Arbitration Act. This Agreement affects interstate commerce and the enforceability of this Section 10.01 will be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
(d) Notice; Informal Dispute Resolution. Each Party will notify the other Party in writing of any Dispute within thirty (30) days of the date it arises, so that the Parties can attempt in good faith to resolve the Dispute informally. Notice to the Company shall be sent by e-mail to the Company at email@example.com. Notice to you shall be by e-mail to the then-current e-mail address in your account with the Company. Your notice to the Company must include (i) your name, postal address, e-mail address and telephone number, (ii) a description in reasonable detail of the nature or basis of the Dispute, and (iii) the specific relief that you are seeking. If you and the Company cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable Party, then either you or the Company may, as appropriate and in accordance with this Section 10.01, commence an arbitration proceeding or, to the extent specifically provided for in Section 10.01(a), file a claim in court.
(e) Any arbitration will occur in Atlanta, Georgia. Arbitration will be conducted by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference. The state and federal courts located in Georgia will have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county where you reside if the Dispute meets the requirements to be heard in small claims court.
(f) Authority of Arbitrator. As limited by the FAA, this Agreement and the applicable JAMS rules, the arbitrator will have (i) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable and (ii) the authority 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 this Agreement. 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.
(g) Rules of JAMS. The rules of JAMS and additional information about JAMS are available on the JAMS website. By entering into this Agreement, you either (i) acknowledge that you have read and understand the rules of JAMS, or (ii) waive 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.
(h) Severability of Dispute Resolution and Arbitration Provisions. If any term, clause or provision of this Section 10.01 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 10.01 will remain valid and enforceable. Further, the waivers set forth in Section 10.01(b) are severable from the other provisions of this Agreement and will remain valid and enforceable, except as prohibited by applicable law.
Section 10.02. Governing Law and Venue.
This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. Any Dispute between the Parties arising out of or relating to this Agreement that is not subject to arbitration or cannot be heard in small claims court will be resolved and filed only in the state or federal courts of the State of Delaware and the United States, respectively, sitting in New Castle County, Delaware. You hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement.
Section 11.01. Assignment.
You shall not assign this Agreement without the prior written consent of the Company. Any assignment or transfer in violation of this Section 11.01 shall be null and void. The Company may assign this Agreement to an affiliate or successor. Subject to the foregoing, this Agreement, and the rights and obligations of the Parties hereunder, shall be binding upon and shall inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives.
Section 11.02. Entire Agreement.
This Agreement, including the Exhibit(s) attached hereto and the materials incorporated herein by reference, constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof, including, without limitation, any public or other statements or presentations made by the Company about the U42 Tokens or the You42 Platform.
Section 11.03. Severability.
If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, inoperative or unenforceable for any reason, the provision shall be modified to make it valid, and, to the extent possible, effectuate the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
Section 11.04. Modification of Agreement.
Following the Effective Date, the Company may modify this Agreement at any time by posting a revised version on the Website, available HERE. The modified terms shall become effective upon posting. It is your responsibility to check the Website regularly for modifications to this Agreement. If the Company makes changes, it will update the “Last updated” date above.
Section 11.05. No Waivers.
The failure by the Company to exercise or enforce any right or provision of this Agreement shall not constitute a present or future waiver of such right or provision, nor limit the Company’s right to enforce such right or provision at a later time. All waivers by the Company must be unequivocal and in writing to be effective.
Section 11.06. No Partnership; No Agency; No Third Party Beneficiaries.
Nothing in this Agreement and no action taken by the Parties shall constitute, or be deemed to constitute, a partnership, association, joint venture, or other co-operative entity between the Parties. Nothing in this Agreement and no action taken by the Parties pursuant to this Agreement shall constitute, or be deemed to constitute, either Party the agent of the other Party for any purpose. No Party has, pursuant to this Agreement, any authority or power to bind or to contract in the name of the other Party. Except as otherwise provided herein, this Agreement is intended solely for the benefit of you and the Company and is not intended to confer any third-party beneficiary rights upon any other person or entity.
Section 11.07. Electronic Communications.
You agree and acknowledge that all agreements, notices, disclosures and other communications that the Company provides you pursuant to this Agreement or in connection with or related to your purchase of U42 Tokens, including this Agreement, may be provided by the Company, in its sole discretion, to you, in electronic form.