Last Updated: May 19, 2021
THE VOLATILITY TOKENS ARE NOT OFFERED TO PERSONS OR ENTITIES WHO RESIDE IN, ARE CITIZENS OF, ARE LOCATED IN, ARE INCORPORATED IN, OR HAVE A REGISTERED OFFICE IN THE UNITED STATES OF AMERICA (COLLECTIVELY, “U.S. PERSONS”). MOREOVER, NONE OF OUR OTHER SERVICES ARE OFFERED TO PERSONS OR ENTITIES WHO RESIDE IN, ARE CITIZENS OF, ARE LOCATED IN, ARE INCORPORATED IN, OR HAVE A REGISTERED OFFICE IN ANY RESTRICTED TERRITORY, AS DEFINED BELOW (ANY SUCH PERSON OR ENTITY FROM A RESTRICTED TERRITORY, A “RESTRICTED PERSON”). WE DO NOT MAKE EXCEPTIONS; THEREFORE, IF YOU ARE A U.S. PERSON, YOU MUST NOT ATTEMPT TO USE OUR VOLATILITY TOKENS AND IF YOU ARE A RESTRICTED PERSON, YOU MUST NOT ATTEMPT TO USE ANY OF THE SERVICES, AS DEFINED BELOW. USE OF A VIRTUAL PRIVATE NETWORK (“VPN”) TO CIRCUMVENT THE RESTRICTIONS SET FORTH HEREIN IS PROHIBITED.
These Terms expressly cover your rights and obligations, and our disclaimers and limitations of legal liability, relating to your use of, and access to, the Site and the Services. By clicking “I agree” (or a similar language) to these Terms, acknowledging these Terms by other means, or otherwise accessing or using the Site or the Services, you accept and agree to be bound by and to comply with these Terms, including, without limitation, the mandatory arbitration provision in Section 13. You also agree that Volmex does not provide execution, settlement, or clearing services of any kind and is not responsible for the transactions automated through the Services. If you do not agree to these Terms, then you must not access or use the Site or the Services.
Please carefully review the disclosures and disclaimers set forth in Section 11 in their entirety before using any software initially developed by Volmex. The information in Section 11 provides important details about the legal obligations associated with your use of the Services.
- Modifications To These Terms
1.1 We reserve the right, in our sole discretion, to modify these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by providing notice through the Services or updating the “Last Updated” date at the top of these Terms. Unless we state otherwise in our notice, all such modifications are effective immediately, and your continued use of the Site and the Services after we provide that notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, then you must stop using the Site and the Services.
- Use of Services
2.1 As a condition to accessing or using the Services or the Site, you represent and warrant to Volmex the following:
- if you are entering into these Terms as an individual, then you are at least 18 years old or of legal age in the jurisdiction in which you reside and you have the legal capacity to enter into these Terms and be bound by them;
- if you are entering into these Terms as an entity, then you must have the legal authority to accept these Terms on that entity’s behalf, in which case “you” (except as used in this paragraph) will mean that entity;
- you are the exclusive beneficial and/or legal owner of any digital asset used or to be used for the purchase of any digital asset on the Site; if you are entering into these Terms to access Volatility Tokens or will in the future access Volatility Tokens, then you are not a U.S. Person;
- you are not a resident, national, or agent of Antigua and Barbuda, Algeria, Bangladesh, Bolivia, Belarus, Burundi, Burma (Myanmar), Cote D’Ivoire (Ivory Coast), Crimea and Sevastopol, Cuba, Democratic Republic of Congo, Ecuador, Iran, Iraq, Liberia, Libya, Magnitsky, Mali, Morocco, Nepal, North Korea, Somalia, Sudan, Syria, Venezuela, Yemen, Zimbabwe or any other country to which the United States, the United Kingdom or the European Union embargoes goods or imposes similar sanctions (collectively, “Restricted Territories”);
- you have not been identified as a Specially Designated National or placed on any sanctions list by the U.S. Treasury Department’s Office of Foreign Assets Control, the U.S. Commerce Department, or the U.S. Department of State (collectively, “Sanctions Lists Persons”); and you will not use our Website to conduct any illegal or illicit activity;
- you do not intend to transact with any Restricted Person or Sanctions List Person;
- you do not, and will not, use VPN software or any other privacy or anonymization tools or techniques to circumvent, or attempt to circumvent, any restrictions that apply to the Services; and
- your access to the Services is not (a) prohibited by and does not otherwise violate or assist you to violate any domestic or foreign law, rule, statute, regulation, by-law, order, protocol, code, decree, or another directive, requirement, or guideline, published or in force that applies to or is otherwise intended to govern or regulate any person, property, transaction, activity, event or other matter, including any rule, order, judgment, directive or other requirement or guideline issued by any domestic or foreign federal, provincial or state, municipal, local or other governmental, regulatory, judicial or administrative authority having jurisdiction over Volmex, you, the Site or the Services, or as otherwise duly enacted, enforceable by law, the common law or equity (collectively, “Applicable Laws”); or (b) contribute to or facilitate any illegal activity.
2.2 As a condition to accessing or using the Services or the Site, you acknowledge, understand, and agree to the following:
- from time to time the Site and the Services may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs that Volmex or any of its suppliers or contractors may undertake from time to time; (c) causes beyond Volmex’s control or that Volmex could not reasonably foresee; (d) disruptions and temporary or permanent unavailability of underlying blockchain infrastructure; or (e) unavailability of third-party service providers or external partners for any reason;
- we reserve the right to disable or modify access to the Site and the Services at any time in the event of any breach of these Terms, including, without limitation, if we reasonably believe any of your representations and warranties may be untrue or inaccurate, and we will not be liable to you for any losses or damages you may suffer as a result of or in connection with the Site or the Services being inaccessible to you at any time or for any reason;
- the Site and the Services may evolve, which means Volmex may apply changes, replace, or discontinue (temporarily or permanently) the Services at any time in its sole discretion;
- the pricing information provided on the Site does not represent an offer, a solicitation of an offer, or any advice regarding, or recommendation to enter into, a transaction with Volmex;
- Volmex does not act as an agent for you or any other user of the Site or the Services;
- you are solely responsible for your use of the Services, including all of your transfers of digital assets;
- to the fullest not prohibited by Applicable Law, we owe no fiduciary duties or liabilities to you or any other party, and that to the extent any such duties or liabilities may exist at law or in equity, you hereby irrevocably disclaim, waive, and eliminate those duties and liabilities;
- you are solely responsible for reporting and paying any taxes applicable to your use of the Services; and
- we have no control over, or liability for, the delivery, quality, safety, legality, or any other aspect of any digital assets that you may transfer to or from a third party, and we are not responsible for ensuring that an entity with whom you transact completes the transaction or is authorized to do so, and if you experience a problem with any transactions in digital assets using the Services, then you bear the entire risk.
2.3 As a condition to accessing or using the Services or the Site, you covenant to Volmex the following:
- in connection with using the Services, you only will transfer legally-obtained digital assets that belong to you;
- you will obey all Applicable Laws in connection with using the Services, and you will not use the Site or the Services if the laws of your country, or any other Applicable Law, prohibit you from doing so;
- any digital assets you use in connection with the Services are either owned by you or you are validly authorized to carry out actions using such digital assets; and
- in addition to complying with all restrictions, prohibitions, and other provisions of these Terms, you will (a) ensure that, at all times, all information that you provide on the Site and during your use of the Services is current, complete, and accurate; (b) maintain the security and confidentiality of your private keys associated with your public Ethereum address, passwords, private keys associated with your Optimism or Polygon account or any other storage scalability service account and other related credentials.
- Fees and Price Estimates
3.1 In connection with your use of the Services, you are required to pay all fees necessary for interacting with the Ethereum blockchain, including “gas” fees, as well as all other fees reflected on the Site at the time of your use of the Services. The value of the gas fee changes, often unpredictably, and is entirely outside of the control of Volmex. Although we attempt to provide accurate fee information, this information reflects our estimates of fees, which may vary from the actual fees paid to use the Services and interact with the Ethereum blockchain. You acknowledge that under no circumstances will a transaction be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the gas fee for the given transaction was unknown, too high, or otherwise unacceptable to a user. You also acknowledge and agree that the gas fee is non-refundable under all circumstances.
- No Professional Advice or Fiduciary Duties
4.1 All information provided in connection with your access and use of the Site and the Services is for informational purposes only and should not be construed as professional advice. You should not take, or refrain from taking, any action based on any information contained on the Site or any other information that we make available at any time, including, without limitation, blog posts, articles, links to third-party content, discord content, news feeds, tutorials, tweets, and videos. Before you make any financial, legal, or other decisions involving the Services, you should seek independent professional advice from an individual who is licensed and qualified in the area for which such advice would be appropriate. The Terms are not intended to, and do not, create or impose any fiduciary duties on us. You further agree that the only duties and obligations that we owe you are those set out expressly in these Terms.
- Prohibited Activity
5.1 You may not use the Services to engage in the categories of activity set forth below (“Prohibited Uses”). The specific activities set forth below are representative, but not exhaustive, of Prohibited Uses. If you are uncertain as to whether or not your use of the Services involves a Prohibited Use or have other questions about how these requirements apply to you, then please contact us at email@example.com. By using the Site or Services, you confirm that you will not use the Site or Services to do any of the following:
- violate any Applicable Laws including, without limitation, any relevant and applicable anti-money laundering and anti-terrorist financing laws and sanctions programs, such as, without limitation, the Bank Secrecy Act and the U.S. Department of Treasury’s Office of Foreign Asset Controls;
- engage in transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under Applicable Law, including but not limited to, sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; use of Volmex’s intellectual property, name, or logo, including use of Volmex’s trade or service marks, without express consent from Volmex or in a manner that otherwise harms Volmex; any action that implies an untrue endorsement by or affiliation with Volmex;
- use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Site or the Services in any manner;
- circumvent any content-filtering techniques, security measures or access controls that Volmex employs on the Site, including, without limitation, through the use of a VPN;
- use any robot, spider, crawler, scraper, or other automated means or interface not provided by us, to access the Services or to extract data, or introduce any malware, virus, Trojan horse, worm, logic bomb, drop-dead device, backdoor, shutdown mechanism or other harmful material into the Site or the Services;
- provide false, inaccurate, or misleading information while using the Site or the Services or engage in activity that operates to defraud Volmex, other users of the Services, or any other person;
- use or access the Site or Services to transmit or exchange digital assets that are the direct or indirect proceeds of any criminal or fraudulent activity, including, without limitation, terrorism or tax evasion;
- use the Site in any way that is, in our sole discretion, libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, harassing, stalking, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive, or otherwise objectionable or likely or intended to incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or violent acts against others;
- use the Site or the Services from a jurisdiction that we have, in our sole discretion, determined is a jurisdiction where the use of the Site or the Services is prohibited;
- harass, abuse, or harm of another person or entity, including Volmex’s employees and service providers;
- impersonate another user of the Services or otherwise misrepresent yourself; or
- encourage, induce or assist any third party, or yourself attempt, to engage in any of the activities prohibited under this Section 5 or any other provision of these Terms.
- Proprietary Rights
6.1 The Site and the Services are governed by the Business Source License 1.1, a copy of which (as it applies to the Site and the Services) can be found at https://github.com/volmexfinance/volmex-core/blob/master/LICENSE (add the date these Terms were last updated) and any other applicable licensing terms for the Site and the Services in these Terms (collectively, the “Volmex License”). You acknowledge that the Site or the Services may use, incorporate or link to certain open-source components and that your use of the Site or Services is subject to, and you will comply with any, applicable open-source licenses that govern any such open-source components (collectively, “Open-Source Licenses”). Without limiting the generality of the foregoing, you may not (a) resell, lease, lend, share, distribute, or otherwise permit any third party to use the Site or the Services; (b) use the Site or the Services for time-sharing or service bureau purposes; or (c) otherwise use the Site or the Services in a manner that violates the Volmex License or any other Open-Source Licenses.
6.2 Excluding the open-source software described in Section 6.1 or third-party software that the Site or the Services incorporates, as between you and Volmex, Volmex owns the Site and the Services, including all technology, content, and other materials used, displayed, or provided on the Site or in connection with the Services (including all intellectual property rights subsisting therein), and hereby grants you a limited, revocable, transferable, license to access and use those portions of the Site and the Services that are proprietary to Volmex.
6.3 Any of Volmex’s product or service names, logos, and other marks used on the Site or as a part of the Services, including Volmex’s name and logo are trademarks owned by Volmex, its affiliates, or its applicable licensors. You may not copy, imitate, or use them without the prior written consent of Volmex or the applicable licensors, and these Terms do not grant you any rights in those trademarks. You may not remove, obscure, or alter any legal notices displayed in or along with the Services.
6.4 The Services are non-custodial. When you deposit digital assets into an account in any smart contract initially developed by Volmex, you retain control over those digital assets at all times. The private key associated with the Ethereum address from which you transfer digital assets and/or the private key associated with the Optimism or Polygon account or any other storage scalability service account is the only private key that can control the digital assets you transfer into these smart contracts. In some cases, you may withdraw digital assets from any smart contract initially developed by Volmex only to the Ethereum address from which you deposited the digital assets.
7.1 The Services provide, or third parties may provide, links to other World Wide Web or accessible sites, applications, or resources. You acknowledge and agree that Volmex is not responsible for the availability of such external sites, applications or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Volmex shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such site or resource.
- Modification, Suspension, and Termination
8.1 We may, at our sole discretion, from time to time and with or without prior notice to you, modify, suspend or disable (temporarily or permanently) the Services, in whole or in part, for any reason whatsoever, including, without limitation, to only allow outstanding Volatility Tokens to be closed.
8.2 You acknowledge and agree that Volmex will have no obligation to provide you with any support or maintenance in connection with the Website or App.
8.3 Upon termination of your access, your right to use the Services will immediately cease. We will not be liable for any losses suffered by you resulting from any modification to any Services or from any modification, suspension, or termination, for any reason, of your access to all or any portion of the Site or the Services or the Volatility Tokens.
8.4 Subject to this Section, these Terms will remain in full force and effect while you use or access the Site or Services. We may suspend or terminate your rights to use or access the Site or Services at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of these Terms. Upon termination of your rights under these Terms, your right to access and use the Site and Services will terminate immediately. The following sections of these Terms will survive any termination of your access to the Site or the Services, regardless of the reasons for its expiration or termination, in addition to any other provision which by law or by its nature should survive: Sections 6 through 15.
9.1 By utilizing the Services or interacting with the Site in any way, you represent and warrant that you understand the inherent risks associated with cryptographic systems and blockchain-based networks; digital assets, including the usage and intricacies of native digital assets, like ether (ETH); smart contract-based tokens, such as those that follow the Ethereum Token Standard; and systems that interact with blockchain-based networks. Volmex does not own or control any of the underlying software through which blockchain networks are formed. In general, the software underlying blockchain networks, including the Ethereum blockchain, is open source, such that anyone can use, copy, modify, and distribute it.
9.2 By using the Services, you acknowledge and agree (a) that Volmex is not responsible for the operation of the software and networks underlying the Services, (b) that there exists no guarantee of the functionality, security, or availability of that software and networks, and (c) that the underlying networks are subject to sudden changes in operating rules, such as those commonly referred to as “forks,” which may materially affect the Services.
9.3 Blockchain networks use public/private key cryptography. You alone are responsible for securing your private key(s). We do not have access to your private key(s). Losing control of your private key(s) will permanently and irreversibly deny you access to digital assets on the Ethereum blockchain or other blockchain-based network. Neither Volmex nor any other person or entity will be able to retrieve or protect your digital assets. If your private key(s) are lost, then you will not be able to transfer your digital assets to any other blockchain address or wallet. If this occurs, then you will not be able to realize any value or utility from the digital assets that you may hold.
9.4 The Services and your digital assets could be impacted by one or more regulatory inquiries or regulatory actions, which could impede or limit the ability of Volmex to continue to make available any portion(s) of the Site or Services which rely on any Volmex proprietary software and, thus, could impede or limit your ability to access or use the Services.
9.5 You acknowledge and understand that cryptography is a progressing field with advances in code cracking or other technical advancements, such as the development of quantum computers, which may present risks to digital assets and the Services, and could result in the theft or loss of your digital assets. To the extent possible, we intend to update the smart contracts related to the Services to account for any advances in cryptography and to incorporate additional security measures necessary to address risks presented from technological advancements, but that intention does not guarantee or otherwise ensure full security of the Services.
9.6 You understand that the Ethereum blockchain remains under development, which creates technological and security risks when using the Services in addition to uncertainty relating to digital assets and transactions therein. You acknowledge that the cost of transacting on the Ethereum blockchain is variable and may increase at any time causing impact to any activities taking place on the Ethereum blockchain, which may result in price fluctuations or increased costs when using the Services.
9.7 You acknowledge that the Services are subject to flaws and that you are solely responsible for evaluating any code provided by the Services or Site. This warning and others Volmex provides in these Terms in no way evidence or represent an on-going duty to alert you to all of the potential risks of utilizing the Services or accessing the Site.
9.8 Although we intend to provide accurate and timely information on the Site and during your use of the Services, the Site and other information available when using the Services may not always be entirely accurate, complete, or current and may also include technical inaccuracies or typographical errors. To continue to provide you with as complete and accurate information as possible, information may be changed or updated from time to time without notice, including, without limitation, information regarding our policies. Accordingly, you should verify all information before relying on it, and all decisions based on information contained on the Site or as part of the Services are your sole responsibility. No representation is made as to the accuracy, completeness, or appropriateness for any particular purpose of any pricing information distributed via the Site or otherwise when using the Services. Prices and pricing information may be higher or lower than prices available on platforms providing similar services.
9.9 Any use or interaction with the Services requires a comprehensive understanding of applied cryptography and computer science to appreciate the inherent risks, including those listed above. You represent and warrant that you possess relevant knowledge and skills. Any reference to a type of digital asset on the Site or otherwise during the use of the Services does not indicate our approval or disapproval of the technology on which the digital asset relies, and should not be used as a substitute for your understanding of the risks specific to each type of digital asset.
9.10 Use of the Services, in particular for trading digital assets, and issuing or acquiring Volatility Tokens, may carry financial risk. digital assets, especially in connection with Volatility Tokens, are, by their nature, highly experimental, risky, and volatile. Transactions entered into in connection with the Services are irreversible, final and there are no refunds. You acknowledge and agree that you will access and use the Site and the Services at your own risk. The risk of loss in trading digital assets, especially issuing or acquiring Volatility Tokens, can be substantial. You should, therefore, carefully consider whether such trading is suitable for you in light of your circumstances and financial resources. By using the Services, you represent and warrant that you have been, are, and will be solely responsible for making your independent appraisal and investigations into the risks of a given transaction and the underlying digital assets, including Volatility Tokens. You represent that you have sufficient knowledge, market sophistication, professional advice, and experience to make your evaluation of the merits and risks of any transaction conducted in connection with the Services or any digital asset. You accept all consequences of using the Services, including the risk that you may lose access to your digital assets indefinitely. All transaction decisions are made solely by you. Notwithstanding anything in these Terms, we accept no responsibility whatsoever for, and will in no circumstances be liable to you in connection with, your use of the Services for performing digital asset transactions, including issuing or acquiring Volatility Tokens.
9.11 We must comply with Applicable Law, which may require us to, upon request by government agencies, take certain actions or provide information, which may not be in your best interests.
9.12 You understand that the storage scalability services provided by Optimism, Polygon, or other storage scalability service, and our Services remain under development, which creates technological, trading, and other risks when using the Services. These risks include, among others, delays in trades, withdrawals, and deposits resulting from the servers of Volmex Optimism, Polygon or other storage scalability services being offline; an incorrect display of information on the Site in the case of server errors; or transactions using the Services being rolled back in the case of server errors. You acknowledge that these risks may have a material impact on your transactions using the Services, which may result in, among other things, failing to fulfill transactions at your desired price or at all.
9.13 You hereby acknowledge and agree that Volmex will have no responsibility or liability for, the risks set forth in this Section 9. You hereby irrevocably waive, release and discharge all claims, whether known or unknown to you, against Volmex, its affiliates, and their respective shareholders, members, directors, officers, employees, agents, and representatives, suppliers, and contractors related to any of the risks set forth in this Section 9.
10.1 You will defend, indemnify, and hold harmless Volmex, its affiliates, and its and its affiliates’ respective stockholders, members, directors, officers, managers, 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 of or relating to (a) your use of, or conduct in connection with, the Site or the Services (including, without limitation, the Optimism or Polygon services); (b) digital assets associated with your Ethereum address; (c) any feedback or user content you provide to Volmex, if any, concerning the Site or the Services; (d) your violation of these Terms; or (e) your infringement or misappropriation of the rights of any other person or entity. If you are obligated to indemnify any Indemnified Party, Volmex (or, at its discretion, the applicable Indemnified Party) will have the right, in its sole discretion, to control any action or proceeding and to determine whether Volmex wishes to settle, and if so, on what terms, and you agree to corporate with Volmex in the defense.
- Disclosures; Disclaimers
11.1 Volmex is a developer of open-source software. Volmex does not operate a digital asset or derivatives exchange platform or offer trade execution or clearing services and, therefore, has no oversight, involvement, or control concerning your transactions using the Services. All transactions between users of open-source software initially developed by Volmex are executed peer-to-peer directly between the users’ Ethereum addresses through a smart contract. You are responsible for complying with all Applicable Laws that govern your Volatility Tokens, including, but not limited to, the Commodity Exchange Act and the regulations promulgated thereunder by the U.S. Commodity Futures Trading Commission (“CFTC”), the federal securities laws and the regulations promulgated thereunder by the U.S. Securities and Exchange Commission (“SEC”) and all foreign Applicable Laws. No U.S. Person may issue or acquire Volatility Tokens using the Services.
11.2 You understand that Volmex is not registered or licensed by the CFTC, SEC, or any financial regulatory authority. No financial regulatory authority has reviewed or approved the use of the open-source software. The Site and the open-source software initially developed by Volmex do not constitute advice or a recommendation concerning any commodity, security, or other digital asset or instrument. Volmex is not acting as an investment adviser or commodity trading adviser to any person or entity.
11.3 You understand that Volatility Tokens entered into using the open-source software initially developed by Volmex are blockchain-based synthetic asset contracts which aim to track an off chain reference index price. Volatility Tokens are not shares or any equivalent in any existing or future public or private company, corporation, or other entity in any jurisdiction.
11.4 Volmex does not own or control the underlying software protocols that are used in connection with Volatility Tokens. In general, the underlying protocols are opensource and anyone can use, copy, modify, and distribute them. Volmex is not responsible for the operation of the underlying protocols, and Volmex makes no guarantee of their functionality, security, or availability.
11.5 Volmex shall not be responsible in any way for any transactions you enter into with other users. You agree that Volmex will not be liable for any loss or damages of any sort incurred as the result of any interactions between you and other users.
11.6 To the maximum extent permitted under Applicable Law, the Site and the Services (and any of their content or functionality) provided by or on behalf of us are provided on an “AS IS” and “AS AVAILABLE” basis, and we expressly disclaim, and you hereby waive, any representations, conditions or warranties of any kind, whether express or implied, legal, statutory or otherwise, or arising from statute, otherwise in law, course of dealing, or usage of trade, including, without limitation, the implied or legal warranties and conditions of merchantability, merchantable quality, quality or fitness for a particular purpose, title, security, availability, reliability, accuracy, quiet enjoyment and non-infringement of third party rights. Without limiting the foregoing, we do not represent or warrant that the Site or the Services (including any data relating thereto) will be uninterrupted, available at any particular time, or error-free. Further, we do not warrant that errors in the Site or the Service are correctable or will be correctable.
11.7 You acknowledge that your data on the Site may become irretrievably lost or corrupted or temporarily unavailable due to a variety of causes, and agree that, to the maximum extent permitted under Applicable Law, we will not be liable for any loss or damage caused by denial-of-service attacks, software failures, viruses or other technologically harmful materials (including those which may infect your computer equipment), protocol changes by third-party providers, internet outages, force majeure events or other disasters, scheduled or unscheduled maintenance, or other causes either within or outside our control.
11.8 The disclaimer of implied warranties contained herein may not apply if and to the extent such warranties cannot be excluded or limited under the Applicable Law of the jurisdiction in which you reside.
11.9 ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
- Limitation of Liability
12.1 In no event shall Volmex, its affiliates, its suppliers and contractors, and its and its affiliates’, suppliers’ and contractors’ respective stockholders, members, directors, officers, managers, employees, attorneys, agents, representatives, suppliers, and contractors be liable for any incidental, indirect, special, punitive, consequential or similar damages or liabilities whatsoever (including, without limitation, damages for loss of fiat, assets, data, information, revenue, opportunities, use, goodwill, profits or other business or financial benefit) arising out of or in connection with the Site and the Services (and any of their content and functionality, including, without limitation, the storage scalability services including the Optimism and Polygon services), any execution or settlement of a transaction, any performance or non-performance of the Services, your digital assets, Volatility Tokens, or any other product, service or other item provided by or on behalf of Volmex, whether under contract, tort (including negligence), civil liability, statute, strict liability, breach of warranties, or under any other theory of liability, and whether or not we have been advised of, knew of or should have known of the possibility of such damages and notwithstanding any failure of the essential purpose of these Terms or any limited remedy hereunder nor is Volmex in any way responsible for the execution or settlement of transactions between users of open-source software initially developed by Volmex.
12.2 In no event shall Volmex’s aggregate liability (together with its affiliates, including its and its affiliates’ respective stockholders, members, directors, managers, officers, employees, attorneys, agents, representatives, suppliers, or contractors) arising out of or in connection with the Site and the Services (and any of their content and functionality), any performance or nonperformance of the Services, your digital assets, Volatility Tokens, or any other product, service or other item provided by or on behalf of Volmex, whether under contract, tort (including negligence), civil liability, statute, strict liability or other theory of liability exceed the amount of fees paid by you to Volmex under these Terms, if any, in the twelve (12) month period immediately preceding the event giving rise to the claim for liability.
- Dispute Resolution & Arbitration
13.1 Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Volmex and limits how you can seek relief from Volmex. Also, arbitration precludes you from suing in court or having a jury trial.
13.2 You and Volmex agree that any dispute arising out of or related to these Terms or the Services is personal to you and Volmex and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action, or any other type of representative proceeding.
13.3 Except for small claims disputes in which you or Volmex seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Volmex seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Volmex waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or the Services resolved in court. Instead, for any dispute or claim that you have against Volmex or relating in any way to the Services, you agree to first contact Volmex and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Volmex by email at firstname.lastname@example.org. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Volmex cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in San Francisco, California, under the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
13.4 You and Volmex agree that these Terms affect interstate commerce and that the enforceability of this Section 13 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, including the power to determine the question of arbitrability. The arbitrator may conduct only 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.
13.5 The arbitrator, Volmex, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared, and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
13.6 You and Volmex agree that for any arbitration you initiate, you will pay the filing fee and all other JAMS fees and costs. For any arbitration initiated by Volmex, Volmex will pay all JAMS fees and costs. You and Volmex agree that the state or federal courts of the State of Delaware and the United States sitting in Dover, DE have exclusive jurisdiction over the enforcement of an arbitration award.
13.7 Any claim arising out of or related to these Terms or the Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Volmex will not have the right to assert the claim.
13.8 If any portion of this Section 13 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 13 or the parties’ ability to compel arbitration of any remaining claims on an individual basis under this Section 13; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 13 is found to prohibit an individual claim seeking public injunctive relief, then that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 13 will be enforceable.
- Governing Law
14.1 The interpretation and enforcement of these Terms, and any dispute related to these Terms, the Site or the Services, will be governed by and construed and enforced under the laws of the State of California, as applicable, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You agree that we may initiate a proceeding related to the enforcement or validity of our intellectual property rights in any court having jurisdiction. For any other proceeding that is not subject to arbitration under these Terms, the state and federal courts located in San Francisco, California will have exclusive jurisdiction. You waive any objection to venue in any such courts.
- General Information
15.2 You consent to receive all communications, agreements, documents, receipts, notices, and disclosures electronically (collectively, our “Communications”) that we provide in connection with these Terms or any Services. You agree that we may provide our Communications to you by posting them on the Site or by emailing them to you at the email address you provide in connection with using the Services, if any. You should maintain copies of our Communications by printing a paper copy or saving an electronic copy. You may also contact us with questions, complaints, or claims concerning the Services at email@example.com.
15.3 Any right or remedy of Volmex 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 Applicable Law, at law, or in equity. The failure or delay of Volmex in exercising any right, power, or privilege under these Terms shall not operate as a waiver thereof.
15.4 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.
15.5 We will have no responsibility or liability for any failure or delay in performance of the Site or any of the Services, or any loss or damage that you may incur, due to any circumstance or event beyond our control, 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.
15.6 You may not assign or transfer any right to use the Site or the Services, or any of your rights or obligations under these Terms, without our express prior written consent, including by operation of law or in connection with any change of control. We may assign or transfer any or all of our rights or obligations under these Terms, in whole or in part, without notice or obtaining your consent or approval.
15.7 Headings of sections are for convenience only and shall not be used to limit or construe such sections.
15.8 These Terms contain the entire agreement between you and Volmex, and supersede all prior and contemporaneous understandings between the parties regarding the Site and the Services.
15.9 In the event of any conflict between these Terms and any other agreement you may have with us, these Terms will control unless the other agreement specifically identifies these Terms and declares that the other agreement supersedes these Terms.
15.10 You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to the Agreement other than the Indemnified Parties.