Cryptoassets
are highly volatile, there is substantial risk that investing in
cryptoassets will result in partial or permanent loss. There may be
no regulatory recourse for any financial loss incurred when buying,
selling or investing in cryptoassets. RynoxCoin shall have no
liability for the fluctuations in Value of any cryptoassets.
.These
General Terms and Conditions (“Terms”) govern
your access and use of the RynoxCoin crypto asset acquisition and
sale service (“RynoxCoin”,
or the “Service”).
RynoxCoin is offered by Rynox Funds HQ Inc. to individuals residing
in the U.S., by Rynox Funds Lithuania UAB to individuals residing in
the EEA, and by Rynox Funds Worldwide Ltd. to individuals residing
elsewhere. Throughout these Terms, the term “Rynox
Funds”,
“we”,
“us”
or “our”
refers to the relevant entity that provides the Service to you.
By
using our Service, you agree to follow and be bound by these Terms
including any policies referenced herein. We reserve the right to
modify these Terms or any additional terms that apply to RynoxCoin in
accordance with changes to the law or our Service. You should look at
these Terms and Conditions regularly and your continued use of the
Service will constitute your acceptance of any revisions to these
Terms and Conditions.
Please refer to our Privacy
Policy for
further information on how we collect, use and disclose information
to third parties, including our RydnoCoin Partners.
RynoxCoin
allows you to purchase certain cryptoassets using a variety of means,
such as your bank account, debit card, credit card, Apple Pay or
Google Pay (each, a “Payment Method”),
and have the cryptoassets you purchase be instantly delivered to your
account with the third-party website or platform of your choosing
that has integrated the RynoxCoin service (a “RynoxCoin
Partner”). Similarly, RynoxCoin allows you to convert
cryptoassets you currently hold with a RynoxCoin Partner into fiat
currency that is delivered directly into your Payment Method of
choice.
RynoxCoin is not
available in all jurisdictions; not all Payment Methods are available
in all jurisdictions. Not all cryptoassets are available for purchase
or sale in all jurisdictions. Neither we nor any of our affiliates
custody any cryptoassets or fiat currency on your behalf as part of
the Service.
RynoxCoin is provided by Rynox
Funds as a convenience to you in your interactions with RynoxCoin
Partners. Rynox Funds has no obligation to provide the Service to
you, other than with respect to approved transactions, to deliver (a)
crypto assets to the RynoxCoin Partner of your choice in exchange for
fiat currency from your approved Payment Method of choice, or (b)
fiat currency to your approved Payment Method of choice in exchange
for crypto assets held by you with the RynoxCoin Partner of your
choice. Note that there may be a period of time between your
authorization of the transaction and its settlement in your Payment
Method account and/or your account with a RynoxCoin Partner. We will
attempt to inform you of the time it will take for your transaction
to settle before you authorize a transaction, but we will not be
liable for delays beyond our control that may impact settlement
times.
By agreeing to these Terms, you agree that we may
communicate with you relating to your use of or access to the Service
electronically by email, text messaging (SMS) (using an automated
telephone dialing service), or “in-app” messaging. Your consent
to receive communications and do business electronically, and our
agreement to do so, applies to all of your interactions and
transactions with us and our agents concerning your Service usage and
access.
In order to use our Service, you affirm that the following statements are and will remain true:
2.1.
You are at least eighteen (18) years
old and have the capacity to enter into a legally binding
agreement.
2.2. You do not reside in, or are under the control
of, a national or resident of, Cuba, the Democratic Republic of
Congo, Iran, Iraq, Myanmar, North Korea, South Sudan, Sudan, Syria,
Yemen or any other jurisdiction subject to sanctions.
2.3. You
will not engage in any prohibited activities and will remain
responsible for complying with the laws of the locale in which you
use the Service, including all export controls and economic sanctions
requirements.
2.4. You may only create, have, administer and/or
control one account on the Service. If we find that you have opened,
operated and/or are operating an additional account, or more than one
account at any one time without our permission, we reserve all
rights, including but not limited to, terminating your
account(s).
2.5. If you are an Rynox Funds customer, your
account is in good standing.
2.6. You will use RynoxCoin only
for your own personal use and not on behalf of any third party.
2.7.
You will provide accurate information for the purposes of verifying
your identity and any supporting information and documents that we
may request.
You remain solely responsible
for complying with applicable law, including state and federal laws,
regulations regarding money laundering, terrorist financing and money
transfer and remittance. You are responsible for understanding and
abiding by the laws and regulations of each jurisdiction in which you
use RynoxCoin.
Except as required by law, we may, without
notice and without liability to you, suspend or terminate access to,
or refuse to provide the Service at any time in our sole discretion,
including without limitation:
3.1.
Use of the Service for unlawful or improper purposes.
3.2. If we
find that you have provided false, misleading or incomplete
information.
3.3. If we identify any attempt to tamper,
hack, modify, reverse engineer or otherwise corrupt the security or
functionality of the Service.
3.4. If we find that you have
breached these Terms.
3.5. If we terminate or suspend our
relationship for any reason with the relevant RynoxCoin Partner.
RynoxCoin will charge fees for the use of our Services, which may include a spread on the price of the relevant cryptoasset. Any fees imposed will be clearly stipulated as part of the transaction process prior to confirming the transaction. RynoxCoin shall not be responsible for any fees charged by a third party. RynoxCoin reserves the right to change the fees charged at any time, which change shall be no more frequently than once every three (3) months.
You expressly acknowledge that cryptoasset transactions are generally irreversible once initiated. It is your responsibility to provide us with correct account information for the destination address of a transaction unless it is provided to us directly by the relevant RynoxCoin Partner. We have no liability for transactions made using the Service according to your instructions. You expressly agree that you will not reverse or attempt to reverse any transactions initiated on the Service. You agree that we may re-attempt any transaction with your Payment Methods if a transaction using a Payment Method is subsequently reversed for non-sufficient funds or via a chargeback, reversal, claim, or is otherwise deemed fraudulent or erroneous. We reserve the right to report, suspend and/or terminate your use of the Service for chargeback abuse, and to prosecute offenders.
For regulatory and compliance reasons, we reserve the right to refuse to complete transaction(s) initiated by you if we, in our sole discretion, suspect the transaction(s) may involve illicit activity like money laundering, terrorist financing, fraud, any crime, or as required by facially valid legal process, or violates these Terms. We reserve the right to report, suspend and/or terminate your use of the Service for such suspected activity. To the extent we are required by relevant law related to U.S. sanctions enforced by the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC) to hold funds or assets as part of a transaction initiated by you, such held funds or assets will be held as follows until such time as release is permitted by OFAC: (i) fiat currency will be held in a separate interest-bearing account for your benefit; (ii) all cryptoassets will be held in the type of cryptoasset that is subject to the hold without any interest.
As
a regulated financial services company, we are required to identify
all users for legal, regulatory and compliance purposes prior to such
users’ use of our Service. To ensure we remain in compliance with
applicable reporting requirements in the jurisdictions in which we
operate, we may collect and verify your personal information
including your legal name, address, government identification, date
of birth, social security or taxpayer identification number, bank
information, or credit card information. We may also ask questions
and verify information ourselves or obtain personal information from
third parties in order to verify your identity, prevent fraud, as
well as request information from other entities, like banks, for
information about you. By agreeing to these Terms and using the
Service, you certify under penalty of perjury that the information
provided, including your social security or taxpayer identification
number, is correct and you agree that we may use the information you
provide and other information to verify who you are. You agree that
we may maintain a record of such information for compliance
purposes.
If you do not provide us with the information
that we request of you in a timely manner, we may refuse to provide
the Service to you or to process any transaction you request.
All
personal information that you provide to us will be processed in
accordance with our Privacy
Policy.
For
your convenience, we may allow you to create a username, password,
and SSO credentials (“Login
Credentials”)
that will authorize us to use the identity verification materials and
any stored Payment Methods you have previously provided to us for new
transactions. We may still require further information or
confirmation of information already in our possession. If you choose
to create Login Credentials, by doing so, you are not creating an
account on the Rynox Funds platform. Your Login Credentials will
apply to the RynoxCoin Service only. You agree that you are
responsible for all activities that occur under your Login
Credentials. You are responsible for maintaining the confidentiality
of your Login Credentials and you agree not to share your Login
Credentials with any unauthorized parties. You also agree to notify
us promptly of any unauthorized use of your Login Credentials or any
other breach of security that you become aware of involving or
relating to the Platform by opening a ticket with our customer
support team.
RynoxCoin
may also permit you to log into your account using third-party login
credentials via a single sign-on (“SSO”) service, such as your
social media accounts or other identity verification services. If you
use an SSO service to access your account and you terminate your
relationship with the relevant SSO service provider (e.g., you delete
your linked social media account), you will only be able to access
your RynoxCoin account via your email and password until you
authorise a different SSO service.
You remain solely responsible for determining whether any applicable taxes, duties and fees apply to any transactions. You accept and agree that RynoxCoin is not responsible for determining or reporting tax liabilities arising from your use of the Service. You are advised to seek independent investment and tax advice from your professional advisors prior to engaging with the Service to determine any tax consequences.
We grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Service solely for the purposes described herein and reserve all other rights in the Service, including without limitation, our websites, APIs and other content. You agree and accept that you have no additional rights beyond this limited license. You affirm that you will not copy, transmit, distribute, sell, resell, license, de-compile, reverse engineer, disassemble, modify, publish, participate in the transfer or sale of, create derivative works from, perform, display, incorporate into another website, or in any other way exploit any content or other part of the Service for any purpose. You also agree not to constitute or display any part of the Service without our express written consent and not to use our trademarks without our express permission.
When you access RynoxCoin through a RynoxCoin Partner and/or a RynoxCoin third-party processor, you accept all risks associated with that RynoxCoin Partner or any third-party vendor that RynoxCoin may be affiliated with or use to assist in the processing of Services, including being subject to such RynoxCoin Partner and/or a RynoxCoin third-party processor’s terms and conditions. Rynox Funds is not responsible for your dealings with any RynoxCoin Partner or any third-party processor used by RynoxCoin, and RynoxCoin’s or RynoxCoin’s third-party processor’s integration with a RynoxCoin Partner does not constitute an endorsement or recommendation of any RynoxCoin Partner or any such third party processor. All RynoxCoin Partners and third-party processors are required to list a support or dispute framework in connection with their service that allows prompt resolution of any issues. If you have any disputes with a RynoxCoin Partner or any third-party processor, you will need to resolve it directly with them.
You agree that these Terms shall be governed by the laws of the following jurisdiction, depending on your jurisdiction of residency, excluding any conflict of laws principles and any claim between you and us:
For
residents of the US: California
For residents of the EEA:
Lithuania
For all other residents: Bahamas.
Subject to the Arbitration Provision, any legal action or proceeding arising under these Terms will be brought exclusively in the courts located in the relevant jurisdiction matching the governing law set forth above, and you hereby irrevocably consent to the personal jurisdiction and venue therein.
If a court of competent jurisdictions finds any provisions outlined in these Terms to be invalid or unenforceable, such provision will be modified and interpreted to accomplish the objectives of the provision to the greatest extent permitted and any such finding shall not invalidate the enforceability of any other provision.
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. Nothing in these Terms shall be construed as a waiver of any rights that cannot be waived under applicable consumer protection laws or regulations.
RynoxCoin shall not be liable for any delays, failure in performance or Service interruptions which result directly or indirectly from any cause or condition beyond our reasonable control, including, but not limited to, failure due to significant market fluctuations, any delay or failure due to any act of God, act of civil or military authorities, act or terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or internet services or network provider services, failure of equipment and/or software or any other catastrophic events.
NEITHER WE NOR OUR AFFILIATES, RynoxCOIN PARTNERS, SERVICE PROVIDERS, OR OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES WILL BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY, AND THAT OF OUR AFFILIATES, RynoxCOIN PARTNERS, AND SERVICE PROVIDERS, OR ANY OF OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE ACTUAL FEES PAID TO US BY YOU IN THE PRECEDING THREE (3) MONTHS OR (B) US$100 DOLLARS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED.
WE
AIM TO MAINTAIN THE SERVICE UP, BUG-FREE AND SECURE, BUT YOU USE THE
SERVICE AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS”
BASIS WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER
EXPRESS, IMPLIED OR STATUTORY. WE EXPRESSLY DISCLAIM ALL IMPLIED
WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT. WE DO NOT MAKE ANY REPRESENTATION OR
WARRANTIES THAT ACCESS TO ANY PART OF THE SERVICE, OR ANY OF THE
MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED,
TIMELY, ERROR-FREE, OR SECURE. OPERATION OF THE PLATFORM MAY BE
INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. WE MAKE
NO REPRESENTATIONS OR WARRANTIES CONCERNING THE REAL OR PERCEIVED
VALUE OF ANY CRYPTOASSET AS DENOMINATED IN ANY QUOTED CURRENCY. WHILE
WE MAY PROVIDE HISTORICAL AND/OR REAL-TIME DATA REGARDING THE PRICE
OF A CRYPTOASSET, WE MAKE NO REPRESENTATIONS REGARDING THE QUALITY,
SUITABILITY, TRUTH, USEFULNESS, ACCURACY, OR COMPLETENESS OF SUCH
DATA, AND YOU SHOULD NOT RELY ON SUCH DATA FOR ANY REASON. YOU
UNDERSTAND AND AGREE THAT THE VALUE OF CRYPTOASSETS CAN BE VOLATILE,
AND WE ARE NOT IN ANY WAY RESPONSIBLE FOR LIABLE FOR ANY LOSSES
INCURRED BY HOLDING OR TRADING CRYPTOASSETS, EVEN IF THE SERVICE IS
DELAYED, SUSPENDED, OR INTERRUPTED FOR ANY REASON.
WE
SHALL NOT BE RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR
DATA OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO RynoxCOIN
PARTNERS, AND YOU RELEASE US, OUR AFFILIATES, AND OUR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SERVICE
PROVIDERS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UKNOWN, ARISING OUT
OF OR IN ANY WAY CONNECTED WITH ANY CLAIM BASED ON SUCH ACTIONS,
CONTENT, INFORMATION, OR DATA OF THIRD PARTIES.
IF YOU ARE
A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH
SAYS: 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.
If you have any questions, concerns or complaints with respect to the Service, please contact us by opening a ticket with our customer support team. Be sure to include your name, the email address associated with the Service, and a description of the issue. You will automatically be assigned a ticket number that will be emailed to you for confirmation. To avoid delays in resolving your inquiry, please have the ticket number available to avoid delays in resolving your query and do not open multiple tickets concerning the same issue.
This
Section 18 (the “Arbitration Provision”) sets forth the
circumstances and procedures under which claims (as defined below)
shall be arbitrated instead of litigated in court upon the election
of either party. You may reject this Arbitration Provision by sending
us a written notice which gives your name, address, email address
associated with your Account, with a statement that you reject the
Arbitration Provision. The rejection notice must be sent by certified
mail, return receipt requested, to Rynox Funds HQ Inc. Attn:
Arbitration Rejection Notice, 228 Park Ave. S., #50458, New York, NY
10003-1502. A rejection notice must be signed by you and received by
us within 45 days after the date you first open an account or the
date this Arbitration Provision first becomes effective, whichever is
later. Rejection of arbitration will not affect any other term of
these Terms.
18.1. Definitions: As
used in this Arbitration Provision, the term “Claim” means any
claim, dispute or controversy between you and Rynox Funds or any of
its affiliates, agents, employees, officers, or contractors, arising
from or relating to these Terms. “Claim” includes claims of every
kind and nature, including but not limited to initial claims,
counterclaims, cross-claims and third-party claims, claims based upon
contract, tort, fraud and other intentional torts, consumer rights,
statutes, regulations, ordinances, common law and equity, and claims
which arose before the date of these Terms. The term “Claim” is
to be given the broadest possible meaning that will be enforced and
includes, by way of example and without limitation, any claim,
dispute or controversy that arises from or relates to (a)
transactions conducted using the Service; (b) advertisements,
promotions or oral or written statements related to the Service; (c)
the benefits and services of RynoxCoin; (d) data breach or privacy
claims arising from or relating directly or indirectly to our
disclosure of any non-public personal information about you; or (e)
collection of any debt and the manner of collection. We shall not
elect to use arbitration under the Arbitration Provision for any
individual Claim that you properly file and pursue in a small claims
court of proper jurisdiction so long as the Claim is individual and
pending only in that court; any Claim that is appealed, transferred
or removed from that court shall be subject to arbitration. Also,
“Claim” does not include disputes about the validity,
enforceability, coverage, or scope of this Arbitration Provision or
any part thereof; all such disputes are for a court and not an
arbitrator to decide. Notwithstanding the foregoing, the term “Claim”
includes any dispute about the validity or enforceability of these
Terms as a whole; any such Claim is for the arbitrator, not a court,
to decide. Even if all parties have opted to litigate a Claim in
court, you or we may elect arbitration with respect to any Claim made
by a new party or any Claim later asserted by a party in that or any
related or unrelated lawsuit (including a Claim initially asserted on
an individual basis but modified to be asserted on a class,
representative or multi-party basis). Nothing in that litigation
shall constitute a waiver of any rights under this Arbitration
Provision. As solely used in this Arbitration Provision, the terms
“we,” “us” and “our” shall for all purposes mean Rynox
Funds and its subsidiaries, affiliates, licensees, predecessors,
successors, and assigns; and all of their agents, employees,
directors and representatives. In addition, the terms “we” “us”
and “our” shall include any third party using or providing any
product, service or benefit in connection with the Service if, and
only if, such third party is named as a co-party with us (or files a
Claim with or against us) in connection with a Claim asserted by
you.
18.2. Initiation of
Arbitration Proceeding/Selection of Administrator: Any
Claim shall be resolved, upon the election by you or us, by
arbitration pursuant to this Arbitration Provision and the code of
procedures of the national arbitration organization to which the
Claim is referred in effect at the time the Claim is filed. Claims
shall be referred to either Judicial Arbitration and Mediation
Services (“JAMS”) or the American Arbitration Association (“AAA”)
or a local equivalent, as selected by the party electing to use
arbitration. If a selection by us of one of these organizations is
unacceptable to you, you shall have the right within thirty (30) days
after you receive notice of our election to select the other
organization listed to serve as arbitrator administrator. For a copy
of the procedures, to file a Claim or for other information about
these organizations, contact them as follows: (i) JAMS at 1920 Main
Street, Suite 300, Los Angeles, CA 92614; website at www.jamsadr.com;
and (ii) AAA at 120 Broadway, Floor 21, New York, NY 10271; website
at www.adr.org. If both JAMS and the AAA are unable to serve as
administrator and we cannot agree on a replacement, a court with
jurisdiction will appoint the administrator or
arbitrator.
18.3. Significance
of Arbitration: IF ARBITRATION IS CHOSEN BY ANY PARTY WITH
RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO
LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR
TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE CODE OF
PROCEDURES OF THE APPLICABLE ARBITRATOR (THE “CODE”). FURTHER,
NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PARTICIPATE IN A
REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS
PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. THE ARBITRATOR SHALL
NOT CONDUCT A CLASS, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE
ARBITRATION. THE ARBITRATOR SHALL NOT JOIN OR CONSOLIDATE CLAIMS
EXCEPT AS SET FORTH BELOW. THE ARBITRATOR’S DECISION WILL BE FINAL
AND BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT
TO COURT ALSO MAY NOT BE AVAILABLE IN
ARBITRATION.
18.4. Restrictions
on Arbitration: If either party elects to resolve a
Claim by arbitration, that Claim shall be arbitrated on an individual
basis. There shall be no right or authority for any Claims to be
arbitrated on a class action or private attorney general basis or on
bases involving Claims brought in a purported representative capacity
on behalf of the general public, other users of the Service or other
persons similarly situated. The arbitrator’s authority to resolve
Claims is limited to Claims between you and us alone, and the
arbitrator’s authority to make awards is limited to you and us
alone. Furthermore, Claims brought by you against us or by us against
you may not be joined or consolidated in arbitration with Claims
brought by or against someone other than you, unless otherwise agreed
to in writing by all parties. This section of this Arbitration
Provision is the “Class Action Waiver.” (Special procedures apply
to Claims that seek public injunctive relief, as set forth
below).
18.5. Location
of Arbitration/Payment of Fees: Any arbitration
hearing that you attend shall take place in the County of New York,
New York or Marin County, California if you are a resident of the
United States; in Vilnius, Lithuania if you are a resident of the
EEA; or Nassau, Bahamas, if you are a resident of another
jurisdiction. At your written request, we will consider in good faith
making a temporary advance of all or part of the filing,
administrative and/or hearing fees for any individual Claim you
initiate as to which you or we seek arbitration. At the conclusion of
the arbitration (or any appeal thereof), the arbitrator (or panel)
will decide who will ultimately be responsible for paying the filing,
administrative and/or hearing fees in connection with the arbitration
(or appeal). If and to the extent you incur filing, administrative
and/or hearing fees in arbitration, including for any appeal,
exceeding the amount they would have been if the Claim had been
brought in the state or federal court which is closest to your
residential address and would have had jurisdiction over the Claim,
we will reimburse you to that extent unless the arbitrator (or panel)
determines that the fees were incurred without any substantial
justification.
18.6. Arbitration
Procedures: This Arbitration Provision is made
pursuant to a transaction involving interstate commerce, and shall be
governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as
it may be amended (the “FAA”) or pursuant to the governing law as
set forth in Section 12, above. The arbitration shall be governed by
the applicable Code, except that this Arbitration Provision shall
control if it is inconsistent with the applicable Code or with other
provisions of these Terms. The arbitrator will be selected under the
administrator’s rules, except that the arbitrator must be a lawyer
with experience in the subject matter of the Claim or a retired
judge, unless you and we agree otherwise in writing.
.
18.7.
The arbitrator shall apply the applicable substantive law, consistent
with the FAA or relevant law as set forth in Section 12, above, that
would apply if an individual matter had been brought in court. The
arbitrator may award any damages or other relief of remedies that
would apply under applicable law to an individual action brought in
court, including, without limitation, punitive damages (which shall
be governed by the constitutional standards employed by the courts)
and injunctive, equitable, and declaratory relief (but only in favor
of the individual party seeking relief and only to the extent
necessary to provide relief warranted by that party’s individual
claim). The arbitrator will have the authority to award fees and
costs of attorneys, witnesses and experts to the extent permitted by
the administrator’s rules or applicable law. The arbitrator shall
apply applicable statutes of limitations and shall honor claims of
privilege recognized at law and, at the timely request of either
party, shall provide a brief written explanation of the basis for the
decision. In conducting the arbitration proceeding, the arbitrator
shall not apply the Federal or any state rules of civil procedure or
rules of evidence. Either party may submit a request to the
arbitrator to expand the scope of discovery allowable under the
applicable Code. The party submitting such a request must provide a
copy to the other party, who may submit objections to the arbitrator
with a copy of the objections provided to the request party, within
15 days of receiving the requesting party’s notice. The granting or
denial of such request will be in the sole discretion of the
arbitrator who shall notify the parties of his/her decision within 20
days of the objecting party’s submission. The arbitrator shall take
reasonable steps to preserve the privacy of individuals, and of
business matters. Judgment upon the award rendered by the arbitrator
may be entered in any court having jurisdiction. The arbitrator’s
decision will be final and binding, except for any right of appeal
provided by the FAA or applicable law. However, if the amount in
controversy exceeds $50,000, any party can appeal that award to a
three-arbitrator panel administered by the same arbitration
organization, which shall consider anew any aspect of the initial
award objected to by the appealing party. The appealing party shall
have 30 days from the date of entry of the written arbitration award
to notify the arbitration organization that it is exercising the
right of appeal. The appeal shall be filed with the arbitration
organization in the form of a dated writing. The arbitration
organization will then notify the other party that the award has been
appealed. The arbitration organization will appoint a
three-arbitrator panel which will conduct arbitration pursuant to its
Code and issue its decision within 120 days of the date of the
appellant’s written notice. The decision of the panel shall be by
majority vote and shall be final and binding except for any appeal
rights under the FAA or applicable law.
18.8. No
Preclusive Effect: No arbitration award involving the
parties will have any preclusive effect as to issues or claims in any
dispute involving anyone who is not a party to the arbitration, nor
will an arbitration award in prior disputes involving other parties
have preclusive effect in an arbitration between the parties to this
Arbitration Provision.
18.9. Continuation
and Severance: This Arbitration Provision shall
survive cancellation, suspension, revocation or termination of your
access to the Service or these Terms as well as voluntary payment of
the debt in full by you, any legal proceeding by us to collect a debt
owed by you, and any bankruptcy by you or us. If any portion of this
Arbitration Provision is held to be invalid or unenforceable, it
shall not invalidate the remaining portions of this Arbitration
Provision, these Terms or any prior agreement you may have had with
us, each of which shall be enforceable regardless of such invalidity
except that: (A) If the Class Action Waiver is declared unenforceable
in a proceeding between you and us with respect to a Claim that does
not seek public injunctive relief, and that determination becomes
final after all appeals have been exhausted, this entire Arbitration
Provision (except for this sentence) shall be null and void in such
proceeding; and (B) If a claim is brought seeking public injunctive
relief and a court determines that the restrictions in the Class
Action Waiver and/or elsewhere in this Arbitration Provision
prohibiting the arbitrator from awarding relief on behalf of third
parties are unenforceable with respect to such Claim, and that
determination becomes final after all appeals have been exhausted,
the Claim for public injunctive relief will be determined in court
and any individual Claims seeking monetary relief will be arbitrated.
In such a case the parties will request that the court stay the Claim
for public injunctive relief until the arbitration award pertaining
to individual relief has been entered in court. In no event will a
Claim for class-wide or public injunctive relief be arbitrated.
You agree and understand that we may comply with any writ of attachment, execution, garnishment, tax levy, restraining order, subpoena, warrant or other legal process, which we reasonably and in good faith believe to be valid. We may, but are not required to, notify you of such process by electronic communication. We may charge you for associated costs, in addition to any legal process fees. You agree to indemnify, defend, and hold all of us harmless from all actions, claims, liabilities, losses, costs, attorney’s fees, or damages associated with our compliance with any process that we reasonably believe in good faith to be valid. You further agree that we may honor any legal process, regardless of the method or location of service.